Terbium Labs, Inc

Terms and Conditions

(For Matchlight’s Digital Scan Service)

1. DEFINITIONS.As used in these Terms of Service, the following defined terms shall apply:

1.1. CUSTOMER means the legal entity or individual that has requested Services from Terbium and has the right to use the Services subject to these Terms of Service.

1.2. CUSTOMER KEY WORDS means the email domain name supplied by Customer in the process of requesting these Services.

1.3. PRIVACY POLICY means the privacy policy applicable to the Services, which may be viewed by clicking the “Privacy Policy” link listed on the Terbium website (http://www.terbiumlabs.com).

1.4. SERVICES means a one-time scan of the dark web for information associated with an email domain name, as provided by Customer, which shall be presented back to the customer on a follow up telephone call (the “Presentation”).

1.5. TERBIUM means Terbium Labs, Inc.

1.6. USER means any Person who is designated by Customer to receive the results of the Services.

2. CUSTOMER RIGHTS, RESTRICTIONS, AND REPRESENTATIONS.

2.1. CUSTOMER USE. Customer shall not access and/or engage in any use of the Services (i) in a manner that abuses or materially disrupts the networks, security systems, Services and/or websites of Terbium, (ii) to communicate any message or material that is false, harassing, threatening, indecent, obscene, slanderous, or otherwise unlawful, (iii) in a manner that violates privacy rights; (iv) in a manner that constitutes infringement of the intellectual property or other proprietary rights; (v) for fraudulent or illegal purposes or in a manner that promotes illegal activities; (vi) if Customer is a direct competitor of Terbium; (vii) for the purpose of monitoring the Service’s availability, performance or functionality, or any other benchmarking or competitive purpose; and/or (viii) in a manner that otherwise violates Terbium policies, applicable laws, ordinances or regulations. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all electronic data or information submitted by Customer to the Terbium Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services through passwords and logins given to Customer by Terbium, and notify Terbium promptly of any such unauthorized access or use, and/or suspected unauthorized access or use. Customer shall use the Services in accordance with the Privacy Policy and the Terbium anti-spam policy. Customer shall indemnify, hold harmless and protect Terbium, its affiliates and its representatives against all claims, costs, expenses, demands, damages, lawsuits, fines, penalties and liabilities (including, without limitation, interest, penalties, attorneys’ fees and court costs) to the extent caused by, or arising from any: (a) charge that Terbium or its representatives have violated any laws and/or regulation in reliance on Customer’s representations, warranties and covenants; (b) allegation or claim in criminal or civil law based on the activities authorized and contemplated under these Terms of Service; (c) claim by Customer, its affiliates or a third party that the Services are in breach of any agreement, intellectual property rights, applicable law or regulation, internal policy or industry standard; (d) breach by Customer of any of its representations and warranties in these Terms of Service; and/or (e) third party claims or liabilities arising out of Customer’s use of the Services.

2.2. THIRD PARTY USE AND RESALE. Customer may not, nor permit anyone else to, directly or indirectly use, distribute, rent, lease, market, sublicense, resell or otherwise transfer the Services, and/or otherwise resell the Services to any third party. If the Customer is not a natural person, Customer shall only permit the use of the Services by members of its organization.

2.3. NO REPRESENTATION TO THIRD PARTY BY CUSTOMER. Neither Customer nor any of its employees, representatives or authorized users of the Services shall make any representations to any third party with respect to Terbium or the Services.

2.4. LIMITED GRANT OF RIGHTS. No other rights are granted hereunder to Customer except as expressly set forth in these Terms of Service. All rights granted to Customer herein are conditional on Customer’s continued compliance these Terms of Service and will immediately and automatically terminate if Customer does not comply with any term or condition hereof. Customer will not assert, nor will Customer authorize, assist, or encourage any third party to assert, against Terbium or any of its Affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services.

2.5. CUSTOMER ACKNOWLEDGEMENTS AND REPRESENTATIONS. Customer hereby authorizes Terbium to conduct the searches and activities pursuant to the Services. Customer represents and warrants to Terbium as follows (i) Customer has the right to obtain the data that it seeks to obtain through use of the Services; (ii) Customer is not using the Service to obtain property that it has no right to obtain; (iii) Customer’s use of the Services is for legitimate and lawful purposes; (iv) Customer has full power and authority to engage and direct Terbium to access Customer Content and to conduct the Services, (v) these Terms of Service will not violate any term or condition of any agreement that Customer has with any third party, and (vi) the person accepting these Terms of Service is authorized to bind Customer thereto. Customer further represents and warrants that it has: (a) all necessary notices, consents, permissions, approvals, authorizations, rights of access and/ or licenses to the Customer Content as are reasonably required for Terbium to perform the Services; (b) sufficient rights to grant authorization and access to Terbium pursuant to (a) above in order for Terbium to perform the Services; (c) only operate and use the Services in accordance with these Terms of Service; (d) perform all necessary obligations as specified in these Terms of Service; and (e) be in compliance with all applicable laws and regulations in connection with the Services.

Customer will not disclose, and Customer Key Words will not include, any information that identifies or directly relates to natural persons. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Key Words submitted by Customer to the Terbium Services. Customer represents that (i) it has the right to search the Customer Key Words and to obtain the search results that it seeks to obtain through use of the Services and (ii) its use of the search services is for legitimate and lawful purposes and does not violate the privacy rights of others. Customer acknowledges that Customer Key Words will reside in plain text format on servers of Terbium, and that Customer will not send Customer Key Words to Terbium that Customer believes should not be stored in plain text format.

Terbium reserves the right to review and investigate the Customer’s credentials and identity and to terminate the Service at any time as a result of such review and investigation, with no refund.

All information provided in the Presentation is given as of the date of the Presentation, and Terbium has no obligation to update, supplement or take any action based on the information in the Presentation.

3. PROPRIETARY RIGHTS.

Except for the limited rights expressly granted herein, Customer has no right, title or interest in or to the Services, system data used in providing the Services or any intellectual property rights related thereto. Terbium or its licensors retain all proprietary right, title and interest in, or practiced in connection with, the Services and any system data, software, including, without limitation, all modifications, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto.

4. WARRANTY.

ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS”, AND TERBIUM DOES NOT OFFER ANY WARRANTIES FOR SUCH SERVICES. ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE DISCLAIMED.

5. LIMITATION ON LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TERBIUM, ITS SUPPLIERS NOR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, MULTIPLE, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE, AND WHETHER OR NOT TERBIUM OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE TOTAL CUMULATIVE LIABILITY OF TERBIUM, ITS SUPPLIERS AND LICENSORS ARISING OUT OF THE SERVICES OR THESE TERMS OF SERVICE, INCLUDING ANY TERMS INCORPORATED BY REFERENCE, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID OR DUE FOR THE RELEVANT SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.  THE TOTAL CUMULATIVE LIABILITY OF TERBIUM, ITS SUPPLIERS AND LICENSORS ARISING OUT OF THE SERVICES OR THESE TERMS OF SERVICE, INCLUDING ANY TERMS INCORPORATED BY REFERENCE, SHALL BE LIMITED TO THE SUM OF $1000.

6. GOVERNING LAW AND PROCEDURE FOR RESOLVING DISPUTES.

6.1. These Terms of Service are governed by and construed under the laws of the State of Maryland, excluding its conflicts of law rules. The parties expressly exclude the applicability of the United Nations Convention on International Sale of Goods and the Uniform Computer Information Transactions Act.

6.2. Any claim, whether based on contract, tort or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out of or relating to the Services or these Terms of Service, including its interpretation, performance, breach or termination, shall be resolved exclusively by arbitration conducted in Baltimore, MD, in the English language by a sole arbitrator (“Arbitrator”) in accordance with the rules of the American Arbitration Association (“AAA”). The Arbitrator shall be appointed by agreement of the parties; if the parties fail to agree upon the Arbitrator within thirty (30) days of notice of arbitration provided by either party, the AAA shall appoint the Arbitrator. The Arbitrator will be bound by the provisions of these Terms of Service and shall be made aware of the terms hereof prior to his or her appointment. The Arbitrator’s decision shall be final and binding upon the parties, provided however that a party may petition a court of competent jurisdiction to vacate the Arbitrator’s award or decision on the grounds of the Arbitrator’s failure to abide by the provisions hereof. Judgment on the award or any other final or interim decision rendered by the Arbitrator may be entered, registered or filed for enforcement in any court having jurisdiction thereof. Notwithstanding the above, Terbium may seek injunctive relief to protect its confidential information or intellectual property in any appropriate court.

7 ADDITIONAL TERMS.

7.1. RELATIONSHIP OF THE PARTIES. Customer and Terbium are independent contractors and have no partnership, franchise, joint venture, agency, fiduciary, or employment relationship.

7.2. GOVERNMENT USE. If Customer is part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Services may be restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. Each of the Services is a “commercial item”, “commercial computer software” and “commercial computer software documentation”. In accordance with such provisions, any use of the Services by the Government shall be governed solely by these Terms of Service.

7.3. ASSIGNMENT. Customer may not assign its rights or delegate its duties hereunder either in whole or in part without the prior written consent of Terbium (which consent shall not be unreasonably withheld). Terbium may assign these Terms of Service in whole as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Any attempted assignment or delegation without such consent shall be void. These Terms of Service will bind and inure to the benefit of each party’s successors and permitted assigns.

7.4. FORCE MAJEURE. Terbium will not be responsible for any delay, interruption or other failure to perform hereunder due to acts beyond its reasonable control, but only for so long as such conditions persist. Force majeure events include, but are not limited to: natural disasters (e.g., lightning, earthquakes, hurricanes, floods); wars, riots, terrorist activities, and civil commotions; activities of local exchange carriers, telephone carriers, wireless carriers, Internet service providers, and other third parties; explosions and fires; embargoes, strikes, and labor disputes; governmental decrees; and any other cause beyond the reasonable control of a party.

7.5. NOTICES. Any and all Services notices, requests and communications to the parties shall be in writing and will be delivered in person or by certified or registered express mail, and shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier, upon confirmation of receipt. Notices shall be delivered, in the case of Terbium, to 180 W. Ostend St. #244, Baltimore, MD, 21230.

7.6. NO WAIVER. The failure of either party in any one or more instance(s) to insist upon strict performance of any of the terms hereof will not be construed as a waiver or relinquishment of the right to assert or rely upon any such term(s) on any future occasion(s).

7.7. SEVERABILITY. If any provision hereof is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from these Terms of Service and the other provisions shall remain in full force and effect and the parties agree to comply with the remaining Terms of Service in a manner consistent with the original intent hereof.

7.8. NO THIRD PARTY BENEFICIARIES. No person or entity not a party hereto will be deemed to be a third party beneficiary of these Terms of Service or any provision hereof.

7.9. CAPTIONS AND HEADINGS. Captions and headings are used herein for convenience only, and shall not be used in interpreting or construing these Terms of Service.

7.10. ENTIRE AGREEMENT. These Terms of Service set forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersede all prior and contemporaneous oral and written agreements and understandings with respect to the same. No waiver or amendment of any term or condition of these Terms of Service shall be valid or binding on Terbium unless agreed to in writing by Terbium.