NINJIO License Agreement and
associated Terms and Conditions
Pursuant to this License Agreement and associated Terms and Conditions (Terms and Conditions are defined and incorporated below), under this (“License Agreement”), Company shall provide computer based training on cyber awareness (the “NINJIO Services”), and Customer desires, pursuant to this License Agreement and associated Terms and Conditions for the duration of the (“Term”) as contained in the Online Order Form, to purchase certain NINJIO Services as provided in the Online Order Form.
NINJIO AWARE HOSTED SMB
Company has developed a proprietary and confidential digital security e-learning system made up of animated educational videos intended to be viewed solely by Customer’s employees, authorized Customer’s contractors, and up to seven (7) employees’ families, in an effort to provide such individuals with access to a cloud based system containing ongoing, engaging, and informative computer based security awareness program (“NINJIO AWARE Hosted Services”).
1. GRANT AND LIMITED SCOPE OF LICENSE
1.1 In consideration of payment by Customer of the agreed upon fees contained in the Online Order Form and Customer agreeing to abide by the associated Terms and Conditions of this License Agreement, Company hereby grants a revocable, worldwide, non-exclusive, and non-transferable right and limited license during the Term to use the NINJIO AWARE Hosted System in strict accordance with the associated Terms and Conditions hereof and for no other purpose whatsoever. Company reserves all other rights. Company will make the NINJIO AWARE Hosted System available to Authorized Users at their individual workstations on supported web browsers or supported mobile devices over the Internet. Customer may view a list of supported browsers by visiting:
1.2 Beginning on or around the submission of the online order form, Company will send Customer a user template to be securely sent back to company with a specific list of Authorized Users and their corresponding email addresses, with Authorized Users department and location being optional. The subscription fees agreed to in the online order form are based on the Customers closest estimate on the initial list of Authorized Users. After NINJIO has uploaded the Authorized Users, the first or the following month’s bill will reflect the actual price package that applies based on the number of Authorized Users in the system. If COMPANY has not received the list of Authorized Users within 10 days of submitting the order form, then the first month’s bill will be based on the Customer’s initial estimate of users as specified in the Online Order Form.
1.3 Customer shall not be required to install any NINJIO software on Customer’s own servers or on Customer employee workstations or purchase any additional computer hardware in order to access the NINJIO AWARE Hosted System. As part of the registration process and before receiving access to the NINJIO AWARE Hosted System, each Authorized User will be required to create a username and password for their own individual account and agree to abide by the User’s Terms and Conditions available at ninjio.com.
1.4 As part of the NINJIO offering, NINJIO will make available to Authorized Users a two different digital security animated educational videos (NINJIO Anime and NINJIO Corporate) approximately each month during the Term. The videos may be viewed solely by Authorized Users. NINJIO’s typical release dates are on the first Tuesday of the month.
Terms and Conditions of Company’s License Agreement and submitted Online Order Form
1. SUBSCRIPTION TO NINJIO SERVICES
1.1 Customer subscribed for the NINJIO Services listed in the Online Order (“Order Form”) to enable a certain limited Quantity of authorized Customer employees (“Authorized Users”) identified as “Quantity” in the Online Order Form to receive access to certain NINJIO Services during the term. Customer agrees to pay the recurring and non-recurring fees (if applicable) as described in the Online Order Form.
1.2 Upon submitting the Online Order Form, NINJIO will begin the onboarding process for Customer. After the onboarding process is complete, NINJIO will make available the NINJIO Services to the Authorized Users each month during the Term the NINJIO Services are being subscribed for by the Customer.
1.3 If Customer requests or makes changes to the tier of Authorized Users originally listed in the Online Order Form or otherwise (i.e. either increases or decreases the number of Authorized Users), then the NINJIO Subscription Package may fluctuate up or down based on Company’s pricing for that tier of Authorized Users.
1.4 The pricing provided in the Online Order Form will remain the same throughout the Initial Subscription Term of the Agreement, as long as the number of Authorized Users don’t exceed the package that the Customer initially signed up for.
2. TECHNICAL SUPPORT SERVICES
2.1 Subject to the terms hereof, Company will provide Customer with technical support services via both telephone and electronic mail on weekdays during the hours of 8:30 am through 5:30 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by calling 805-864-1999 or any time by emailing email@example.com. Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Neither Customer nor any of the Authorized Users will, directly or indirectly: make use of the NINJIO Services except in strict accordance with these Terms and Conditions; share any of the videos or other portions of or information related to the NINJIO Services with any third parties; modify, translate, or create derivative works based on the NINJIO Services including, but not limited to, the videos that are a part of such system; use the NINJIO Services in a manner that might otherwise benefit a third party; or remove any proprietary notices or labels associated with the NINJIO Services.
3.2 Customer represents, covenants, and warrants that Customer will use the NINJIO Services only in strict compliance with all applicable laws and regulations. Customer hereby agrees to indemnify, defend, and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use or Authorized Users’ use of the NINJIO Services. Although Company has no obligation to monitor Customer’s and Authorized Users’ use of the NINJIO Services, Company may do so and may prohibit any use of the NINJIO Services it believes may be (or is alleged to be) in violation of the foregoing.
3.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the NINJIO Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the NINJIO Services including, but not limited to, video content, data aggregation, identification, analysis and delivery, and process and methodologies associated with the compromised credentials monitoring and notification services and other NINJIO Services.
4.2 Proprietary Information of Customer includes non-public data provided by Customer to Company to enable Authorized Users to access the NINJIO Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in accessing and using the NINJIO Services as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
4.3 Customer shall own all right, title and interest in and to the Customer Data. Company shall own (or has obtained the proper right and license from a third party owner to use in the manner described in these terms and conditions) and retain all right, title and interest in and to (a) the NINJIO Services (including, but not limited to, the videos that are a part thereof) and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed by Company, its licensors, partners, or affiliates in connection with implementing and making the NINJIO Services available to Customer or supporting Customer in connection with its use of the NINJIO Services, and (c) all intellectual property rights related to any of the foregoing.
4.4 Notwithstanding anything to the contrary herein, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the NINJIO Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free to (i) use such information and data to improve and enhance the NINJIO Services and for other development, diagnostic and corrective purposes in connection with the NINJIO Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses in the NINJIO Services (including, but not limited to, the videos which are a part thereof) are granted except as expressly set forth herein.
5. PAYMENT OF FEES
5.1 Customer will pay Company the then applicable Subscription Fees and other fees (if applicable) described in the Online Order Form for enabling Authorized Users to access the NINJIO Services in accordance with the terms therein and in the exhibits for the particular NINJIO Services being subscribed for by Customer (collectively, the “Fees”).
5.2 If Customer’s use of the NINJIO Services exceeds the Service Capacity set forth in the Online Order Form or otherwise requires the payment of additional fees per the NINJIO Pricing Package, Customer shall be billed for, and shall pay Company for, such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or then current renewal term, upon thirty (30) days prior written notice to Customer, which notice may be delivered by email.
5.3 If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
5.4 Company will normally bill through a credit card as submitted in the Online Order Form. Customer may wish to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice.
5.5 Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service.
5.6 Customer shall be responsible for all taxes associated with enabling Authorized Users to access the NINJIO Services other than U.S. taxes based on Company’s net income.
5.7 In the event that Customer’s Credit Card is declined, Company will reach out to Customer to instruct Customer on how to add an additional payment method. In the event that Customer does not respond satisfactorily to this request within 10 days, then Company will deactivate Customer’s subscription until Customer has satisfied their payment obligations.
6. TERM AND TERMINATION
6.1 Subject to earlier termination as provided below, the Agreement is for the Initial Subscription Term as specified in the Online Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Subscription Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may also terminate the Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the Terms and Conditions of the Agreement.
6.3 All sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. LIMITED WARRANTY AND DISCLAIMER
7.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the NINJIO Services in a manner which minimizes errors and interruptions in Authorized Users access to and use of the NINJIO Services and shall perform the implementation services in a professional and workmanlike manner.
7.2 The NINJIO Services may be temporarily unavailable due to scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
7.3 COMPANY DOES NOT WARRANT THAT THE NINJIO SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE NINJIO SERVICES. WITHOUT IN ANYWAY LIMITING THE FOREGOING, THE EPISODES PROVIDED THROUGH THE NINJIO SERVICES ARE NOT INTENDED TO PRESENT THE ONLY, OR NECESSARILY THE BEST, METHOD OR PROCEDURE FOR DEALING WITH AN I.T. SECURITY ISSUE, BUT RATHER PRESENT THE APPROACH OR OPINION OF THE DISCUSSANT.
7.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE NINJIO SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the videos which make up the NINJIO Services of any United States copyright laws, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the NINJIO Services (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications and using assets or work product provided to Company by Customer, (iii) that are modified by Customer or any Authorized User after delivery by Company (which is expressly prohibited hereunder), (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the NINJIO Services is not strictly in accordance with these Terms and Conditions. If, due to a claim of infringement, the NINJIO Services is held by a court of competent jurisdiction to be or is believed by Company to be infringing on a third party’s copyrights, Company may, at its option and expense (a) replace or modify the NINJIO Services (or portions thereof) to be non-infringing, (b) obtain for Customer a license to continue using the NINJIO Services (or portion thereof) that was infringing, or (c) if neither of the foregoing is commercially practicable, terminate the Agreement and Customer’s rights hereunder and provide Customer a pro-rata refund of any prepaid, unused fees for the NINJIO Services at issue.
9. LIMITATION OF LIABILITY
COMPANY AND ITS PARTNERS, AFFILIATES, LICENSORS, SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, AGENTS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THE AGREEMENT OR THESE TERMS AND CONDITIONS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE NINJIO SERVICES UNDER THE AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of the Agreement or these Terms and Conditions are found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Agreement and these Terms and Conditions will otherwise remain in full force and effect and enforceable. Unless due to a merger or an acquisition of a majority of Customer’s stock, membership interests, or assets, this Agreement is not assignable, transferable or sub-licensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under the Agreement without consent. The Agreement, these Terms and Conditions, and the attachments, exhibits and schedules attached hereto and thereto are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement and the Terms and Conditions, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Agreement or these Terms and Conditions and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under the Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.