SHIELD SUBSCRIPTION AGREEMENT

IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CLICKING ON THE “ACCEPT” BUTTON BELOW.

BY CLICKING THE “ACCEPT” BUTTON OR BY DOWNLOADING AND/OR USING THE SHIELD SOFTWARE-AS-A-SERVICE PLATFORM (“DEVICESHIELD SOLUTION”), THE INDIVIDUAL OR ENTITY DOWNLOADING AND/OR USING THE SOLUTIONS (“CUSTOMER”) IS AGREEING TO BE BOUND BY AND BECOME A PARTY TO THIS CUSTOMER AGREEMENT (“AGREEMENT”). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT USE OR ACCESS THE DEVICESHIELD SOLUTION. CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE AUTHORITY TO ENTER INTO THIS AND AGREEMENT PERSONALLY (IF A NATURAL PERSON), OR ON BEHALF OF THE ENTITY ENTERING INTO THIS AGREEMENT, AND TO BIND THAT ENTITY.

  1. PROVISION OF SERVICES
  1. Access. Subject to Customer’s payment of the fees set forth in Section 3 (“Fees”), as applicable, SHIELD will provide Customer with access to the DeviceSHIELD Solution and application programming interface designed to enable the exchange of information and data between the DeviceSHIELD Solution and the Customer Platform (“API”). On or as soon as reasonably practicable after the Effective Date, SHIELD will provide to Customer the necessary passwords, keys, security protocols and policies and network links or connections as may be necessary to access the DeviceSHIELD Solution (“Access Protocols”) to allow Customer and each of its employees, agents and independent contractors who are authorized to access the DeviceSHIELD Solution pursuant to Customer’s rights under this Agreement (“Authorized Users”) to access the DeviceSHIELD Solution and API in accordance with the Access Protocols. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the DeviceSHIELD Solution or API, and notify SHIELD promptly of any such unauthorized use known to Customer. In the event integration or other configuration services are required to implement the DeviceSHIELD Solution or API within Customer’s systems, such services shall be set forth in a separate Statement of Work (“SOW”). Customer agrees to reasonably cooperate with, and provide all requested documentation, information, and materials, as is required by SHIELD in connection with such integration or other configuration services.
  2. Support Services. Subject to the terms and conditions of this Agreement, SHIELD will exercise commercially reasonable efforts to (a) provide support for the use of the DeviceSHIELD Solution and API to Customer in accordance with SHIELD’s then-current support terms, (b) keep the DeviceSHIELD Solution and API operational and available to Customer, and (c) provide bug fixes or workarounds intended to correct any reproducible failures of the DeviceSHIELD Solution (“Errors”) in the DeviceSHIELD Solution, in each case in accordance with its standard policies and procedures.
  1. INTELLECTUAL PROPERTY
  1. Grant of Rights. Subject to the terms and conditions of this Agreement, SHIELD grants to Customer a non-exclusive, non-transferable (except as permitted under Section 11) right during the Term (as defined below), for Customer’s internal business purposes and in accordance with any usage limitations, (a) to access and use the DeviceSHIELD Solution in accordance with the technical materials provided by SHIELD to Customer in hard copy or electronic form describing the use and operation of the DeviceSHIELD Solution (“Documentation”); and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the DeviceSHIELD Solution; and (c) to make calls from the websites and/or platforms owned by or under the control of the Customer (“Customer Platform”) to the API solely using the API key issued to Customer and solely to enable data interchange between the Customer Platform and the DeviceShield Solution.. Customer may permit any Authorized Users to access and use the features and functions of the DeviceSHIELD Solution and to make API calls as contemplated by this Agreement.
  2. Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the DeviceSHIELD Solution, API, or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the DeviceSHIELD Solution, API, or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the DeviceSHIELD Solution, API, or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the DeviceSHIELD Solution or API, except as permitted by law; (e) interfere in any manner with the operation of the DeviceSHIELD Solution or API, or the hardware and network used to operate the DeviceSHIELD Solution or API; (f) modify, copy or make derivative works based on any part of the DeviceSHIELD Solution, API, or Documentation; (g) access or use the DeviceSHIELD Solution, API, to build a similar or competitive product or service; (h) attempt to access the DeviceSHIELD Solution or API through any unapproved interface; or (i) otherwise use the DeviceSHIELD Solution, API, or Documentation in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Customer acknowledges and agrees that the DeviceSHIELD Solution and API will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions.
  3. Ownership. The DeviceSHIELD Solution, API, and Documentation, and all worldwide intellectual property rights in each of the foregoing, are the exclusive property of SHIELD and its suppliers. All rights in and to the DeviceSHIELD Solution, API and Documentation not expressly granted to Customer in this Agreement are reserved by SHIELD and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the DeviceSHIELD Solution, API, Documentation, or any part thereof.
  4. Open Source Software. Certain items of software may be provided to Customer with the DeviceSHIELD Solution and API and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 2.1 or 10. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, SHIELD makes such Open Source Software, and SHIELD’s modifications to that Open Source Software, available by written request at the notice address specified below.
  5. Feedback. Customer hereby grants to SHIELD a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any services provided by SHIELD to Customer under this Agreement, including, but not limited to, provision of the DeviceSHIELD Solution, API, and Professional Services (collectively, the “Services”) any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. SHIELD will not identify Customer as the source of any such feedback.
  1. FEES AND EXPENSES; PAYMENTS. Customer agrees to pay the Fees (if any) charged to Customer’s account each month. Customer may elect to use a “Free” plan, under which the number of API calls in the DeviceSHIELD Solution is restricted. In the event Customer and its Authorized Users desire to exceed the threshold for API calls allowable under the “Free” plan, Customer may elect to convert to the “Pro” plan. If Customer converts to the “Pro” plan, SHIELD shall commence charging Customer a monthly subscription fee for the remainder of the Term, and the number of API calls that Customer and its Authorized Users make during any given month using the API will be charged at prevailing plan rates. All Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. SHIELD reserves the right to modify the Fees payable hereunder upon written notice to Customer at least thirty (30) days prior to the end of the then-current term. SHIELD reserves the right (in addition to any other rights or remedies SHIELD may have) to discontinue the DeviceSHIELD Solution or API and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Customer will maintain complete, accurate and up-to-date Customer billing and contact information at all times. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on SHIELD’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the DeviceSHIELD Solution to Customer.
  2. CUSTOMER DATA AND RESPONSIBILITIES
  1. License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services and/or set forth on or in the Customer Platform (“Customer Data”).  Customer will obtain all third party licenses, consents and permissions needed for SHIELD to use the Customer Data to provide the Services.  Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for SHIELD to use the Customer Data submitted by or on behalf of Authorized Users for the purposes set forth in this Agreement. Customer grants SHIELD a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Customer Data as necessary for purposes of providing and improving the Services, (b) to use the Customer trademarks, service marks, and logos as required to provide the Services, and (c) use the Customer Data in an aggregated and anonymized form to: (i) improve the Services and SHIELD’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose any information collected or deduced by SHIELD and/or the Services based on Customer’s and its Authorized Users’ use of the DeviceSHIELD Solution thereof (“Usage Data”) and other statistics regarding use of the Services, provided, however, that no Customer-only statistics will be disclosed to third parties without Customer’s consent. The Customer Data, and all worldwide intellectual property rights in it, is the exclusive property of Customer. SHIELD shall own all rights, title and interest in and to Usage Data. All rights in and to the Customer Data not expressly granted to SHIELD in this Agreement are reserved by Customer.
  2. Personal Data. SHIELD generally does not process Personal Data under applicable national, federal, state and provincial laws relating to data privacy, the protection of Personal Data, and the cross-border transfer of Personal Data (the “Data Privacy Laws”). “Personal Data” means (i) any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier; or (ii) as defined by applicable Data Privacy Laws (e.g., CCPA or GDPR). If SHIELD processes Personal Data on behalf of Customer pursuant to this Agreement, then the terms of such processing shall be set forth in a separate SOW.
  1. PROFESSIONAL SERVICES. Where the parties have agreed to SHIELD’s provision of professional services provided by SHIELD, including configuration or customization services (“Professional Services”), the details of such Professional Services will be set out in a SOW.  The SOW will include: (a) a description of the Professional Services; (b) the schedule for the performance of the Professional Services; and (c) the Fees applicable for the performance of the Professional Services. Each SOW will incorporate the terms and conditions of this Agreement.  To the extent that a conflict arises between the terms and conditions of an SOW and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the SOW, as applicable, expressly states that it supersedes specific language in the Agreement.  
  2. WARRANTIES AND DISCLAIMERS
  1. Limited Warranty. SHIELD represents and warrants that it will provide the Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards. Provided that Customer notifies SHIELD in writing of the breach within thirty (30) days following performance of the defective Services, specifying the breach in reasonable detail, SHIELD will, as Customer’s sole and exclusive remedy, for any breach of the foregoing, re-perform the Services which gave rise to the breach. SHIELD further warrants to Customer that the DeviceSHIELD Solution will operate free from Errors during the Term, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (a) any use of the DeviceSHIELD Solution not in accordance with this Agreement or as specified in the Documentation; (b) any use of the DeviceSHIELD Solution in combination with other products, equipment, software or data not supplied by SHIELD; or (c) any modification of the DeviceSHIELD Solution by any person other than SHIELD or its authorized agents. Provided that Customer notifies SHIELD in writing of any breach of the foregoing warranty during the Term, SHIELD will, as Customer’s sole and exclusive remedy, provide the support described in Section 1.2.
  2. Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 6.1 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND SHIELD MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, SYSTEM INTEGRATION, DATA ACCURACY, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. SHIELD DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE DEVICESHIELD SOLUTION WILL BE UNINTERRUPTED OR ERROR-FREE.
  1. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED SHIELD’S FEES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL SHIELD’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
  2. CONFIDENTIALITY. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party. The Services, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of SHIELD. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to SHIELD). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence. The confidentiality obligations set forth in Section 8.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
  3. INDEMNIFICATION
  1. By SHIELD. SHIELD will defend at its expense any suit brought against Customer, and will pay any settlement SHIELD makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the DeviceSHIELD Solution infringes such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the DeviceSHIELD Solution becomes, or in SHIELD’s opinion is likely to become, the subject of a claim of infringement, SHIELD may, at SHIELD’s option: (a) procure for Customer the right to continue using the DeviceSHIELD Solution; (b) replace the DeviceSHIELD Solution with non-infringing software or services which do not materially impair the functionality of the DeviceSHIELD Solution; (c) modify the DeviceSHIELD Solution so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the DeviceSHIELD Solution and Documentation. Notwithstanding the foregoing, SHIELD will have no obligation under this Section 9.1 or otherwise with respect to any infringement claim based upon (i) any use of the DeviceSHIELD Solution not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the DeviceSHIELD Solution in combination with other products, equipment, software or data not supplied by SHIELD; or (iii) any modification of the DeviceSHIELD Solution by any person other than SHIELD or its authorized agents (collectively, the “Exclusions” and each, an “Exclusion”). This Section 9.1 states the sole and exclusive remedy of Customer and the entire liability of SHIELD, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
  2. By Customer. Customer will defend at its expense any suit brought against SHIELD, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to an Exclusion. This Section 9.2 states the sole and exclusive remedy of SHIELD and the entire liability of Customer, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for the claims and actions described herein.
  3. Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
  1. TERM AND TERMINATION. This Agreement will begin on the Effective Date and continue in full force and effect for an initial term of one (1) year (the “Initial Term”), automatically renew for additional terms of one (1) month (each, a “Renewal Term”) unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current term (the Initial Term and any Renewal Terms, collectively, the “Term”). Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in the Section 9; and (c) any amounts owed to SHIELD under this Agreement will become immediately due and payable. Sections 2.2, 2.3, 2.5, 3, 6.2, 7, 8, 9, 10 and 11 will survive expiration or termination of this Agreement for any reason.
  2. MISCELLANEOUS. The parties are independent contractors. Nothing herein will be construed as creating any agency, partnership, or other form of joint enterprise between the parties, and neither party may create any obligations or responsibilities on behalf of the other party.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of laws provisions thereof. Exclusive jurisdiction and venue for any action arising under this Agreement shall be in the federal and state courts located in the State of Delaware, and both parties hereby consent to such jurisdiction and venue for this purpose. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from SHIELD, or any products utilizing such data, in violation of the United States export laws or regulations. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Services and Documentation. All notices required or permitted under this agreement must be delivered in writing, if to SHIELD, at 1 Fifth Avenue, Guthrie House #03-14, Singapore 268802, or by emailing legal@shield.com and if to Customer by emailing the Customer Point of Contact email address listed when signing up for the DeviceSHIELD Solution, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement shall remain in effect. Any failure of a party to exercise or enforce any of its rights under the Agreement will not act as a waiver of such rights. Customer may not assign this Agreement, in whole or in part, or any of its rights and obligations hereunder, without the prior written consent of SHIELD. This Agreement, including any SOW now or hereafter agreed to, represents the entire agreement and supersedes all previous agreements and understandings between the parties relating to the subject matter hereof, and may be changed only in a writing signed by both parties. This Agreement may be executed in counterparts, each of which is an original but all of which, together, shall constitute but one and the same instrument.