Part 1: Incorporation of a Contract
If you have requested a Proof of Value (POV) and are reading these terms and conditions on behalf of a company, organisation, limited partnership or any other form of legal entity (an “Entity”), then you are agreeing for and on behalf of that Entity and thereby representing and stating to Netacea that you have the requisite consents and authorisations to contractually bind such Entity to receive a POV in accordance with these terms and conditions. Therefore, the terms “You”, “Your” or any other related capitalised term used throughout will be deemed to mean such Entity. If You do not have all requisite consents and authorisations, or if You do not agree to any of the terms set out here, You must not accept these Bot Management POV Terms and Conditions and You must not receive a POV from Netacea.
Company Details: Which Netacea entity you contract with depends on where you are based. So:
- if You are based anywhere outside of the USA, Your contract is with Netacea Limited (company number 11566936), a company registered in England and Wales with its registered office at 4th Floor Maybrook House, 40 Blackfriars Street, Manchester, M3 2EG; and
- if You are based in the USA, Your contract is with Netacea, Inc. a company incorporated and registered in Delaware, USA (company number 5482825) with its registered office at 3500 S Dupont Hwy, Dover, Kent, DE, 19901, each separately and both collectively referred to as “Netacea” throughout these Bot Management POV Terms and Conditions.
Contacting Us: To contact us, please contact Your designated account manager or email Netacea at firstname.lastname@example.org.
When we refer to a POV we mean a free and limited trial of the Netacea Bot Management Solution, which will be granted or demonstrated to you through one of three types of POV that we conduct and call (i) “Log-File”, (ii) “In-Line” and (iii) “Live Mitigation” (or any other terms we use from time to time). Which type you receive will depend on things like Your website, technical environment, and the outcomes of our discovery exercise with You, and sometimes we may start providing one type to You and by the end of the POV we might have provided another. Which type of POV You receive and any changes to it are at our entire discretion. To receive a Log-File POV or an In-Line POV, You will need to send to us what we call the Minimum Data Set. During our discovery exercise with You we will explain how You will need to send us the data and what the Minimum Data Set consists of, and please also see the Acceptable Use Policy and other Netacea Documentation for more detail. We will always tell You exactly what You need to send to us in any event.
Forming the Agreement
- WE PARTICULARLY DRAW YOUR ATTENTION TO CLAUSES 4, 7 AND 9 OF PART 2 OF THESE TERMS.
- These Terms apply to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
- The Agreement is the entire agreement between us for your POV. You acknowledge that You have not relied upon any statement or warranty made or given by or on behalf of Netacea which is not set out in these Terms, and that You shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
- This Agreement takes effect when You sign Your Order Form, complete our web form online, or by using or accessing the POV, (whichever is earliest event) and Netacea has confirmed it will deliver a POV to You. You agree to be bound by these Terms for the duration of Your receipt of the POV. Netacea may make changes to these Terms from time to time at its discretion, and such change(s) will be incorporated into Your Agreement upon 30 days’ notice to You of the change(s).
- If there is a conflict between these Terms and Your Order Form or online web form that you signed up to, then these Terms shall take precedence.
- These Terms were last updated in December 2022.
- Some clauses only apply if You are contracting with Netacea Limited, and likewise if You are contracting with Netacea, Inc. It is clearly pointed out what will apply to You if something is different.
Definitions and interpretation
- The following definitions and rules of interpretation apply to this Agreement.
- Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, include the singular.
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
- A reference to writing or written includes e-mail.
- References to parts and clauses are to the parts and clauses of this Agreement.
“Applicable Law” any laws or regulations, regulatory policies, or guidelines or industry codes issued by a competent authority which apply to the Agreement or its subject matter which are in force from time to time;
“Authorised Users” personnel who are authorised by You to use the POV;
“Bot” means a program uniquely identified by the Netacea Platform as an agent for a user or another program or which simulates human activity on the Internet including but not limited to spiders or crawlers that access websites to gather content for search engine indexes etc;
“Confidential Information” means any and all information relating to the trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of the parties and/or to their customers, suppliers, and clients in or on any medium or format. For the avoidance of doubt Netacea Materials, Netacea’s Intellectual Property Rights, and the methods, techniques, knowhow and ideas used or learned by Netacea in providing the POV are the confidential information of Netacea;
“POV Period” means the period from your acceptance of these Terms until the earlier of the following events occurring: (1) the date on which Netacea confirms to You that the POV is complete, (2) You sign an agreement for paid provision of Netacea’s products and services, (3) the expiry of 90 days and (4) either of us decide to terminate the POV;
”Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Minimum Data Set” means the required data that Netacea requires in order to provide the POV, set out in Netacea’s standard POV instructions, Acceptable Use Policy or other accompanying documentation in place from time to time (“Netacea’s POV Documents”) and which are communicated to you in the discovery phase of the POV;
“Netacea Materials” means any of the items developed and/or licenced by Netacea to You in connection with the performance of the POV, including without limitation any technical or functional specifications, schematics, plans or diagrams;
“Netacea Platform” means the Intent Analytics® and Malicious Intent Detection™ management platform developed and owned by Netacea;
“Non-Netacea Services” means systems, software and hosted services provided by You or by a third party with which the Netacea Platform connects or interacts; “Personal Data” means any personal data which is processed by Netacea in the performance of the POV for You, including to the extent that such data constitutes personal data, IP addresses of users who access Your Website;
“Potential Threat List” means a list of Bots stored & maintained by the Netacea Platform which maintains a list of Bots that could be threatening to Your Website, which could be provided by You to Netacea in some circumstances, and a “Shared Potential Threat List” of Bots which may consist of Your Potential Threat List and Bots identified by any other Netacea customer or third party websites;
“Solution” means Netacea’s proprietary source code capable of detecting, analysing and mitigating against bots within traffic to Your Website that is provided to You;
“Third Party Software” any software proprietary to a third party which is licenced to Netacea and which You may receive the benefit of as part of the POV, including Amazon Web Services, provided by Amazon Web Services EMEA SARL, Microsoft Azure Databricks, Google RECAPTCHA v2, and Sumologic;
"Your Materials” means any of the items provided to Netacea by You in connection with the Agreement, including Log Files and Live Streaming Data; and
“Your Website” means Your website URL, pathway and/or use case that you wish to receive a POV for and which Netacea agrees to conduct a POV against.
Part 2: Standard POV Terms
- In all cases You agree to send us all requisite and relevant data to provide the POV to You and You agree for us to perform the POV. In some POVs it is necessary to direct the transfer of Your Website(s) traffic to the Netacea Platform or allow for copies of Your Website traffic to go to the Netacea Platform in real time. In this case then you expressly give us Your consent to receive Your Website traffic (or copies of it) and to integrate all necessary tools, code, workers, buckets, or other integration elements into, besides, behind or in front of Your Website in order to facilitate such re-direction. We will agree with You what integration work will be required during or after a discovery, but You remain wholly responsible for the integration work that takes place unless we expressly agree otherwise.
- You acknowledge and agree that You are solely responsible for the development, content, operation, maintenance, hosting and use of Your Website and for backing up all data inputted to and/or held in respect of Your Website; and Netacea shall not be liable to You for any interruptions to the POV or other losses or costs incurred by You arising out of Your failure to do any of the things in this clause 2.2.
DATA, SECURITY AND PRIVACY
- You agree that Netacea may use data gathered or generated by it in the provision of the POV to monitor, evaluate, and improve its POVs, the Netacea Platform, and the Solution, including to improve and develop the Potential Threat List, and to aggregate and combine such data with other data held by Netacea in relation to the POV.
- You agree that Netacea can include any Bots stored in Your Potential Threat List in the Shared Potential Threat List and You hereby acknowledge that the contents of the Shared Potential Threat List are to be maintained entirely at Netacea’s discretion.
- The Netacea Platform is built on and hosted by Amazon Web Services (AWS). You may specify the AWS regions used by the Netacea Platform in which the POV are provided. Netacea will not provide the POV contrary to Your selected AWS region(s) without notifying You, unless required to comply with Applicable Laws or requests of government entities. You consent to our collection, use and disclosure of information associated with the POV and the Netacea Platform in accordance with our internal security standards, privacy policies, and (if applicable) a separately agreed Data Processing Addendum.
- You acknowledge that Netacea may delete any type of data (including Personal Data) sent to it that is outside of the Minimum Data Set without any liability to You, and You agree to indemnify us against all costs, damages, claims and expenses relating to sending us any such data, including investigations and fines from a regulatory body.
WARRANTIES & INDEMNITIES
- To the fullest extent permissible by law, Netacea excludes any warranties of any kind whatsoever in respect of the POV and Netacea makes no warranties, representations, or other agreements, express or implied with respect to the POV.
- You warrant and represent that:
- You shall comply with all Applicable Laws in respect of Your use of the POV;
- You shall comply with all terms applicable to the use of Third Party Software provided by Netacea under this Agreement;
- You have all rights, licences, consents and permissions required to provide Your Materials to Netacea for the purposes of providing the POV, and to authorise Netacea to provide the POV; and
- Netacea’s use of Your Materials in accordance with the terms of the Agreement will not infringe the Intellectual Property Rights of any third party.
- This clause 5 is supplemental to any existing non-disclosure agreement or equivalent document we have already entered into with You and nothing in it is intended to invalidate any previously agreed provisions. Each party shall keep all Confidential Information that it receives from the other strictly confidential unless permitted by the discloser and only use it for the purposes set out in this Agreement, and take all necessary steps to prevent loss or theft of any Confidential Information that it receives.
- Each party may disclose and allow the use of Confidential Information it receives to its employees and directors who require its use and to its auditors and professional advisors for the sole purpose of providing professional advice to it, provided that each party ensures that any person receiving Confidential Information under this clause 5.2 only receives it under an obligation of confidentiality at the least the same standard as under this clause 5.
- However, the restrictions in clause 5.1 do not apply to any information to the extent that it:
- is or comes within the public domain other than through a breach of clause 5.1;
- is in the recipient’s possession (with full right to disclose) before receiving it from the other party;
- is lawfully received from a third party (with full right to disclose it); or
- is required to do so by court order of a court of competent jurisdiction.
- Each party’s obligations with respect to the other party’s Confidential Information shall survive for three (3) years from termination or expiry of the POV Period unless you purchase Netacea’s services, in which case these obligations shall survive for three (3) years from termination or expiry of our agreement for paid services.
INTELLECTUAL PROPERTY RIGHTS
- All Intellectual Property Rights in Your Materials will remain owned by You. You hereby grant to Netacea a worldwide, non-exclusive, royalty-free licence to use Your Materials to the extent necessary to provide the POV and perform its other obligations under the Agreement.
- If You provide any suggestions to Netacea or its affiliates for changes or enhancements to any element of the POV, including the Netacea Platform and Solution, Netacea will own all right, title, and interest in and to such changes or enhancements as it may develop and may use the same without restriction.
- You acknowledge and agree that the Netacea Platform, Solution, and all other Netacea Materials, and all Intellectual Property Rights therein (existing now or in the future) are and shall remain the exclusive property of Netacea and its licensors (such as the Third Party Software) and You shall not acquire or claim any title to them. If Netacea undertakes any bespoke development, implementation or configuration of any Service for You, all products of such development (including any software developed) and all the Intellectual Property Rights therein shall be the exclusive property of Netacea. Except as expressly stated in the Agreement, the Agreement does not grant You any rights (including Intellectual Property Rights) to, under or in the same.
- Netacea shall retain ownership in the Intellectual Property Rights contained within any reports, assessments or other analytical data (POV Reports) arising out of or related to the provision of the POV to You, and you are only granted a licence to use the POV Reports for the purpose of considering the purchase of Netacea’s products and services. Furthermore, the contents of any POV Reports are indicative only, Netacea does not give any statement or warranty as to their accuracy, and You shall not rely upon them save for the purpose of the POV.
- Any Third Party Software is subject to, and You shall comply with, the terms and conditions of the relevant Third Party Software owner and remains owned by each respective Third Party Software licensor.
LIMITS ON LIABILITY
- This clause sets out the entire liability of Netacea (including any liability for the acts or omissions of its employees, agents and sub-contractors) to You in respect of any breach of our Agreement with you for a POV and any statements, acts or omissions made in connection with this Agreement (both in contract and in tort).
- Nothing in these terms and conditions excludes or limits the liability of Netacea:
- for death or personal injury caused by Netacea’s negligence;
- for any matter which it would be illegal for Netacea to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
- You acknowledge that the purpose of the Agreement is to demonstrate Netacea’s capabilities and for You to assess whether to purchase our products and services, therefore Netacea does not warrant that the results obtained from the POV will meet Your requirements.
- Netacea shall in no circumstances whatsoever have any liability in respect of any loss or damage, or any failure, delay or interruption in the POV, or any delay, interruption or unavailability of any POV Website, as a result of:
- any error or omission in any information or instructions, or inaccurate data or information, provided by You in connection with the Agreement or any actions taken by Netacea at the Your direction;
- any criminal, fraudulent, dishonest or negligent act or omission, misrepresentation or default by or on behalf of You or any of Your representatives;
- any fault, error or problem relating to the Non Netacea Service or Your software, hardware, devices, equipment, network or infrastructure, or any Third Party Software, or Your internet service provider;
- use of the POV (or any part thereof) in combination or conjunction with any Non Netacea Service, software, hardware, device or equipment that is not approved by Netacea;
- You exceeding any Usage Limits or abnormally using the Netacea Platform;
- Your failure to implement appropriate technical and organisational security measures in respect of Your Website(s) and/or Your IT systems (including such measures as are required to protect against viruses, denial-of-service attacks and distributed denial-of-service attacks); or
- You making any modifications to any part of Your Website or component to your technical environment that affects the POV without the written approval of Netacea.
- Subject to clauses 7.2 and 7.3, Netacea’s total liability to You under or in connection with the performance of any of its obligations under this Agreement shall be limited to $25,000 USD if Your Agreement is with Netacea Inc. and £20,000 GBP if Your Agreement is with Netacea Limited, whether in contract, tort (including negligence), breach of statutory duty, or otherwise.
- Netacea shall have no liability to You whatsoever for indirect or consequential costs, losses, expenses of any kind, including any loss of profit; loss of business; loss or corruption of data, records or information; failure to make anticipated savings; depletion of goodwill; damage to reputation; losses in connection with a failure to complete transactions through Your Website by any third parties; or any costs or losses relating to the maintenance and development of Your Website.
EFFECTS OF TERMINATION
- Except as provided in clause 10.2 neither party may assign, transfer, charge or deal in any other manner with the Agreement or any of its rights under it, or purport to do any of these things, or sub-contract any or all of its obligations under the Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
- Netacea may sub-contract any or all of its obligations under the Agreement to a sub-contractor, and you acknowledge that if your Agreement is with Netacea, Inc. that the provision of the POV is subcontracted to Netacea Limited throughout the POV Period.
- Each party shall comply with all Applicable Laws in the USA and UK relating to anti-bribery and anti-corruption.
- Nothing in the Agreement is intended to, or shall, operate to create a partnership or joint venture of any kind between You and Netacea; authorise either party to act as agent for the other party; authorise either party to act in the name or on behalf of, or otherwise to bind, the other party in any way.
- Any notices to be sent by one party to the other in connection with the Agreement except for the service of Court proceedings shall be in writing and shall be delivered personally or sent by special delivery post (or equivalent service offered by the postal service from time to time) or if sent by email will be deemed to be received at 9.00am on the next Business Day after transmission (provided no delivery notification is received)to the addresses of each party as set out on the front page of the Agreement or as otherwise notified in accordance with the provisions of this condition.
- Save for as stated in clause 10.3 above, the parties hereby agree that nothing in the Agreement shall be construed as creating a right which is enforceable by any person who is not a party to the Agreement.
- If any provision or part-provision of the Agreement is or becomes invalid, illegal, or unenforceable it shall be deemed deleted, but such deletion shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision is deemed deleted under this clause, then the parties shall negotiate in good faith to agree a replacement provision.
Governing Law and Jurisdiction.
- If Your Agreement is with Netacea Limited, the Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or its formation shall be governed by and construed in accordance with English law. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement, its subject matter or its formation. Notwithstanding the foregoing, nothing in the Agreement shall prevent Netacea from taking court proceedings or bringing claims in any jurisdiction in which You are resident, is operating and/or has assets.
- If Your Agreement is with Netacea, Inc. the Agreement shall be governed by and construed in accordance with the laws of the United States and the State of Delaware applicable to agreements negotiated, executed and performed in Delaware by Delaware parties, without giving effect to conflicts of laws rules or principles. The parties hereto submit to the exclusive jurisdiction of the state or Federal courts located in, or for, the City of Wilmington in the State of Delaware, and any appellate court from any such state or Federal court, and hereby irrevocably and unconditionally agree that all claims with respect to any such claim shall be heard and determined in such Delaware court or, to the extent required by applicable law, in such Federal court. The parties agree that a final judgment in any such claim is conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law. Each of the parties hereby waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any related matter in any Delaware state or Federal court located in the State of Delaware and the defense of an inconvenient forum to the maintenance of such claim in any such court, and hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts. Notwithstanding the foregoing, (i) in actions seeking to enforce any order or any judgment of any such courts located in Delaware, personal jurisdiction shall be nonexclusive, and (ii) Notwithstanding the foregoing, nothing in the Agreement shall prevent Netacea from taking court proceedings or bringing claims in any jurisdiction in which You are resident, is operating and/or has assets.
Part 3: Solution and Platform Licence
- You shall only send the Minimum Data Set to Netacea and only through the method prescribed by Netacea. You must follow all of Netacea’s instructions (including in Netacea’s POV Documents) to securely send the data to Netacea. Netacea shall not be responsible for the transfer of any type of data (including the Minimum Data Set) while in transit outside of Netacea’s technical environment, including the Netacea Platform.
- The provision of the POV might be supported by or rely upon integrations and other connections within Your technical environment to certain Non-Netacea Services. If You use a Non-Netacea Service alongside or intraoperatively with the POV, You hereby grant to Netacea permission to interoperate with each relevant Non-Netacea Service, and You warrant that You have all rights, licences and permissions to do so. Your use of any Non-Netacea Services is governed solely by the terms agreed between You and the provider of Your Non-Netacea Services and You acknowledge and agree that: (a) Netacea does not control and is not responsible for any Non-Netacea Services; (b) Netacea has no liability with respect to any use of Non-Netacea Services or any disruption caused to the Netacea Platform as a result of Non-Netacea Services; and (c) You are responsible for complying with any licences and other terms applicable to the Non-Netacea Services.
- You are solely responsible for the maintenance of Your Website and Netacea is not responsible for any failure or interruption to the POV as a result of an issue with Your Website.
- Except as may be allowed by any Applicable Laws which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under the Agreement, you shall not:
- attempt to copy or clone, modify, create derivative works from, republish, download, transmit, or distribute all or any element of the POV, Solution or Netacea Platform and/or any Third Party Software (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any element of the POV, Solution or Netacea Platform and/or any Third Party Software under the Agreement;
- access all or any element of the POV, Solution or Netacea Platform in order to develop a product or service which competes with Netacea and its products or services;
- use any element of the POV, Solution or Netacea Platform to provide services to third parties;
- commercially exploit in any way, or otherwise make any element of the POV, Solution or Netacea Platform available, to any third party;
- make a competitive or functional assessment of any element of the POV, Solution or Netacea Platform (other than assessing Netacea’s ability to meet Your own internal business purposes) on behalf of third parties (including any of Netacea’s competitors) or with the intention of publishing or making information about the POV available to third parties that we have not previously consented to in writing; or
- attempt to obtain, or assist third parties in obtaining, access to any element of the POV, Solution or Netacea Platform other than as permitted under the Agreement.
- You shall only use the Netacea Platform and Solution in accordance with Netacea’s POV Documents and Netacea’s instructions.
- You will ensure that all data that you supply to Netacea is complete, accurate and in the format Netacea has agreed with You and it is solely Your responsibility to keep these accurate and up to date, and Netacea will not be liable to You for any data provided which is outside of the Minimum Data Set. Netacea will inform You if it becomes aware of any data received other than or outside of the Minimum Data Set and You acknowledge that Netacea will immediately delete any such data in accordance with its data retention and destruction policies without any liability to You. In particular, You must not provide personal data and any data relating to any credit, debit, charge, purchase card or other card issued by a financial institution, or in relation to the cardholder.
- You must keep all access keys, codes, passwords, or other items required for the Netacea Platform secure and confidential, and not allow anyone other than Authorised Users to access the Netacea Platform. You must return any such access keys, codes, or passwords to Netacea at the end of the POV if Netacea instructs You to do so.
- Except as may be allowed by any Applicable Laws which is incapable of exclusion by agreement between the parties, and except to the extent expressly permitted under the Agreement, you shall not: