Minc Law Digital Risk Protection (DRP) Services Agreement

This Minc Law Digital Risk Protection (DRP) Services Agreement (this “Agreement”) is entered into between Minc LLC (“Minc”) and the person or entity purchasing DRP Services (as defined below) (“Customer”). Customer acknowledges that by purchasing or otherwise using the DRP Services, Customer shall be bound by the terms of this Agreement. If Customer does not wish to be bound by this Agreement, Customer shall not purchase or otherwise use any DRP Services.

Minc reserves the right to modify and update this Agreement at any time and will provide Customer with notice of any such modifications or updates. Customer may reject any such modifications or updates by providing written notice to Minc within ten (10) days after receiving notice of any such modifications or updates. If Customer does not provide written notice of its objection thereto within such ten-day period, such modified and updated Agreement shall be binding on Customer for all future use of the DRP Services.

Now, Therefore, the parties agree as follows:

1. For purposes of this Agreement:
   • “Acceptable Use Policy” means ZeroFOX’s standard Acceptable Use Policy, currently available at https://www.zerofox.com/acceptable-use-policy/.
   • “Customer Content” means information, data and content originating, collected or retrieved from Customer, including such content that Customer (a) submits to the DRP Services, including Customer-specific configurations and rules, or (b) otherwise provides to Minc or ZeroFOX for the provision of DRP Services.
   • “DRP Services” means (i) cloud-hosted social media and digital risk protection software-as-a-service solutions, (ii) implementation, configuration, training, support, managed security, takedown requests and other consulting services and (iii) other related services offered by Minc.

“Activation Fee” means a non-refundable administrative fee charged to Customer at the time of purchase of DRP Services.

• “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
• “Source Content” means data, content or other material available from a Source Platform.
• “Source Platform” means an app, site or platform hosted by a third party (or Customer) that allows its users to share and store data, content and other material, such as sites for social networking and microblogging and sites that support blogs, reviews, surveys and comments. Depending on the applicable DRP Services purchased, Source Platforms could include, for example, Facebook and Instagram.
• “ZeroFOX” means ZeroFOX, Inc., a Delaware corporation.
• “ZeroFOX Services” means any DRP Services provided or supported by ZeroFOX.

2. • DRP Service Fees. Minc shall provide DRP Services to Customer, including causing ZeroFOX to provide to Customer access to the ZeroFOX Services purchased by Customer, in each case pursuant to the terms set forth herein. Customer shall pay Minc the fees for DRP Services as set forth at https://drp.minclaw.com/plans or as otherwise agreed to at the time of purchase, and subject to discounts or promotions offered by Minc at the time of purchase. By providing credit card or other payment information to Minc for the purchase of DRP Services, Customer hereby consents to Minc using such payment information to charge the fees payable by Customer hereunder.
   • 30-Day Money Back Satisfaction Guarantee. In consideration of Customer signing up for the DRP Service Initial Term (as defined below), if Customer is not fully satisfied with the DRP Services it may cancel such services by providing written notice of cancellation at any time within the 30-day period following the date of purchase. If Customer provides such cancellation notice within such period, Minc shall refund Customer’s payment for such terminated DRP Services, less the non-refundable Activation Fee, within 30 days following such termination.
   • DRP Service Term. Unless earlier terminated, the term of the DRP Services shall commence on the date the DRP Services are purchased by Customer and remain in effect for a period of 12 months (the “DRP Service Initial Term”), and thereafter shall remain in effect on a month-to-month basis until either party provides 30 days’ notice of its intent to terminate (the DRP Service Initial Term together with any month-to-month renewal terms, the “DRP Service Term”). Notwithstanding anything set forth herein, Minc may terminate this Agreement and the provision of DRP Services at any time in the event it no longer has the right to grant the rights set forth in this Agreement.
   • Fees. All fees for DRP Services are subject to change from time to time. Customer should review the fees for such DRP Services on Minc’s website before purchasing any DRP Services. Minc shall provide customer with written notice of any fee changes at least 30 days prior to the change taking effect.
   • Early Termination Fee. Unless cancelled pursuant to Section 2.2, in the event Customer terminates the DRP Services during the DRP Service Initial Term, Customer shall pay Minc a cancellation fee equal to 50% of the fees payable for the remainder of the DRP Service Initial Term that has not already been paid.
3. Access, Use and Restrictions.
   • Customer Content. Neither Minc nor ZeroFOX controls and neither is responsible for the content, accuracy, completeness, consistency, integrity, legality, reliability and appropriateness of Customer Content and Customer is solely responsible for the use of all such content. Prior to submitting or providing access to any Customer Content, Customer shall, at its own expense, obtain all third party consents and/or permissions that may be necessary and appropriate with respect to such Customer Content. As between the parties, Customer owns all right, title and interest in and to Customer Content, including all associated Intellectual Property Rights. Customer hereby grants to Minc and ZeroFOX a non-exclusive, royalty-free, right and license to use, reproduce, transmit, perform, display and store Customer Content for Minc and ZeroFOX to provide the DRP Services.  
   • Attorney-Client Relationship. Customer acknowledges that the purchase of any DRP Services does not in itself create an attorney-client relationship between Customer and Minc.
4. ZeroFOX is the sole and exclusive owner of all right, title and interest in and to the ZeroFOX Services and, exclusive of any Customer Content therein, as well as any and all know-how, processes, methods, specifications, inventions, user interfaces, libraries and other technology and materials of any kind that are used or provided by ZeroFOX to Customer in connection with the ZeroFOX Services, in all cases together with all associated Intellectual Property Rights. No license or title to or ownership of the ZeroFOX Services or any associated Intellectual Property Rights is transferred under this Agreement and ZeroFOX reserves all rights not otherwise expressly granted in this Agreement.
5. This Agreement shall remain in effect so long as Customer is using any DRP Services.
6. Warranties; Disclaimer of Warranties. CUSTOMER ACKNOWLEDGES THAT THE DRP SERVICES ARE NOT CAPABLE OF DETECTING OR IDENTIFYING ALL DIGITAL RISKS AND SECURITY MATTERS AND NO GUARANTIES ARE MADE THAT ANY RESULTS OR OUTPUT PROVIDED TO CUSTOMER ARE 100% ERROR-FREE. Except for certain limited warranties expressly provided by ZeroFOX to Customer with respect to the ZeroFOX Services, which Minc agrees to pass along to Customer, NEITHER MINC NOR ZEROFOX MAKES ANY WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND MINC AND ZEROFOX SPECIFICALLY DISCLAIM ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEAILING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.      
7. Limitation of Liability. NEITHER MINC NOR ZEROFOX SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT) OR DATA LOSS OR BREACHES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MINC’S OR ZEROFOX’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES ACTUALLY RECEIVED BY MINC OR ZEROFOX, AS APPLICABLE, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
8. Transmission of Data. Customer acknowledges and understands that Customer’s use of the DRP Services will involve the transmission of Customer Content and other data over the Internet and over various networks. Customer further acknowledges and understands that such transmissions and networks may be accessed by unauthorized parties when communicated across the Internet, network communications facilities or other electronic means. Neither Minc nor ZeroFOX is responsible for any transmissions, Customer Content or other data which may be delayed, lost, altered, intercepted or stored during the transmission of any data or while being stored on third-party servers, including any data breaches.
9. Indemnity. Customer agrees to defend, indemnify and hold harmless Minc, ZeroFOX and their employees, agents, contractors, officers and directors (collectively, “Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any claim, suit, action or proceeding by a third party (each, an “Action”), including Personnel, arising out of or relating to Customer Content or any use of the DRP Services in violation of this Agreement, or Acceptable Use Policy, including without limitation Customer’s violation of applicable Outside TOS or applicable law to the extent such Action would not have occurred but for such violation.
10. General Provisions.
    • Independent Contractors. The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another.
    • Third Party Products and Services. Under no circumstances shall Minc have any responsibility or liability to Customer with respect to any product or service provided by a third party (a “Third Party Product”), including ZeroFOX or any third party that may be used in connection with the DRP Services, and Minc makes no representations or warranties with respect to any Third Party Product. With respect to any Third Party Product that Minc may provide as part of the DRP Services, Customer shall comply with the terms and conditions of the third party provider applicable to such Third Party Product.
    • Interest and Attorneys’ Fees. In the event Customer fails to pay any amounts when due hereunder, interest shall accrue on such unpaid amounts at a rate equal to the lesser of 10% per annum or the highest amount permitted by applicable law. Customer shall be responsible for all reasonable attorneys’ fees incurred by Minc in the collection of payment hereunder or otherwise in connection with the enforcement of this Agreement against Customer.
    • Customer shall not assign, delegate, or subcontract any portion of its rights, duties, or obligations under this Agreement without the prior written consent of Minc and any attempt to do so shall be void.
    • Entire Agreement; Waiver. This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the parties, as to the subject matter of this Agreement. This Agreement may be amended, modified or changed only by a writing signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
    • Force Majeure. No party shall be liable or responsible to any other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency (each of the foregoing, a “Force Majeure Event”), in each case, provided the event is outside the reasonable control of the affected party, the affected party provides prompt notice to the other party, stating the period of time the occurrence is expected to continue, and the affected party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    • Governing Law; Jurisdiction. This Agreement will for all purposes be solely and exclusively governed, construed and enforced in accordance with the laws of the State of Ohio (without regard to the conflicts of law provisions thereof). Any dispute arising out of or under this Agreement shall be subject only to the Bedford Municipal Court unless the jurisdictional limits for said Municipal Court shall be exceeded at which time the Cuyahoga County Court of Common Pleas shall have sole and exclusive jurisdiction. Customer irrevocably consents to the personal and subject matter jurisdiction of said courts.
    • No Uniform Computer Information Transactions Act (“UCITA”). The UCITA does not apply to this Agreement.
    • No Implied Licenses. There are no implied licenses under this Agreement, and any rights not expressly granted hereunder are reserved. Customer shall not exceed the scope of the rights granted hereunder.
    • If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

Third-Party Beneficiary. Except as expressly set forth in this Section 10.11, no third party shall be deemed a third-party beneficiary of this Agreement. Customer acknowledges that ZeroFOX shall be deemed a third-party beneficiary of this Agreement with the ability to enforce this Agreement against Customer.