Anti-Piracy Terms and Conditions
Customer agrees and acknowledges the following “Terms and Conditions” which apply to Customer (“Customer “or “You”) for each use of any services available through the OpSec website.
Services/Projects/Titles: OpSec agrees to provide Anti-Piracy Services under the terms and conditions of this agreement and as described in any applicable Order Form.
Payment Terms. Payments shall be made within thirty (30) days of the date of invoice. Late charges of 1% will apply to amounts not received by OpSec by the due date. All Services are non-refundable.
Term. Unless otherwise agreed in writing, the term of the Services shall be for a one-year period and continue on a month-to-month basis thereafter, unless terminated in writing by a party.
Data Storage. OpSec shall maintain back-up copies of the evidence for as long as reasonably requested in writing by Customer as allowed by the applicable laws. Data will be supplied to Customer by email, on DVD or as otherwise requested by Customer. OpSec ensures that the transport of evidence is done in a manner approved by both Parties. OpSec agrees to process and use the Data solely for the purposes set forth in this Agreement.
Disclaimer of Warranties. OpSec assumes no liability for any damages suffered by you, including, but not limited to, mistakes, omissions, loss of data, delays in operation or transmission, non-deliveries, deletion of files or e-mail, errors, defects, computer viruses, or service interruptions of any kind, or any failure of performance, communications failure, destruction or unauthorized access to OpSec’s records, program, information or services. OpSec assumes no liability for the quality, accuracy, or validity of the data/information gathered by this service. Use of information gathered through OpSec’s services is at your risk. No oral advice or written information given by OpSec, its employees, agents, or third-party providers shall create a warranty or license; nor shall you be entitled to rely on such information or advice.
OPSEC MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO ITS SERVICE OR SERVICES ON THE INTERNET GENERALLY. OPSEC SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM YOUR RELIANCE OR USE OF THE SERVICE. YOU ARE ENTIRELY RESPONSIBLE FOR ALL CONTENT THAT YOU UPLOAD, E-MAIL OR OTHERWISE TRANSMIT VIA THE SERVICES. OPSEC DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. OPSEC DOES NOT PROVIDE ANY LEGAL OPINIONS OR LEGAL ADVICE WITH RESPECT TO THE RESULTS OF THE SEARCHES PERFORMED BY OPSEC. OPSEC IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES OR LEGAL OPINIONS. ANY LEGAL QUESTIONS WITH RESPECT TO INTELLECTUAL PROPERTY LAW SHOULD BE DIRECTED TO LEGAL COUNSEL.
THE AGGREGATE LIABILITY OF OPSEC ARISING OUT OF A CLAIM FOR LOSS RELATED TO THE SERVICES AVAILABLE THROUGH OPSEC SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC SERVICE AFFECTED BY THE CLAIM. IN NO EVENT SHALL OPSEC BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES ARISING OUT OF OPSEC’S SERVICES, INCLUDING LOST PROFITS, EVEN IF OPSEC HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Intellectual Property Rights
Ownership of Titles/Customer Content and Infringing Copies Thereof: As between Customer and OpSec, all right, title and interest in and to the Titles and/or Customer Content, and any elements thereof, shall remain with Customer. Customer warrants that it has, at all relevant times, the exclusive right and title to deal with and/or enforce the rights associated with the Customer Content for which OpSec is to provide certain anti-piracy services, and will provide written confirmation of such exclusive right and title from time to time and in a form requested by OpSec.
Ownership of Technology: Customer acknowledges and agrees that, as between the parties, OpSec holds all right, title and interest in and to any technology and software used by OpSec in providing the Services (subject to any third party rights or restrictions), including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto.
Ownership of Data: As between Customer and OpSec, Customer shall have the ownership to the customer data provided to OpSec as well as the data contained in the reports prepared by OpSec pursuant to this Agreement (“Data”). In relation to all Personal Information made available to OpSec by Customer or which OpSec processes on behalf of Customer under this agreement, OpSec shall comply with the applicable data protection laws and regulations.
Unauthorized Use of Services. Customer is responsible for the use of the Services by any employee of Customer, any person to whom Customer have given access to the Services, and any person who gains access to Customer’s data or the Services as a result of Customer’s failure to use reasonable security precautions, even if such use was not authorized by Customer. Customer agrees to assume sole responsibility for the security of any and all passwords issued by OpSec for purposes of accessing the data provided under this Agreement and shall promptly notify OpSec of the loss or theft of any password.
- For the purposes hereof, “Confidential Information” is any information disclosed to the other Party whether orally or in writing that is either nonpublic, confidential or proprietary in nature, which may include (i) information relating to the financial marketing, organizational and trading position of the applicable Party including any details of industry, customers, suppliers, advertisers, debtors or creditors, (ii) technical information relating to any product or service supplied by the applicable Party, (iii) information relating to intellectual property rights in respect of the applicable Party, (iv) information relating to the officers, directors or employees of the applicable Party including their terms and conditions of employment or engagement, or (v) any other information which may from time to time be identified by the applicable Party as being of a confidential nature and as being subject to the terms of this Agreement. Confidential Information shall include Data, as well as the prices and terms of this Agreement.
- Each of the Parties shall: (i) utilize the other Party’s Confidential Information exclusively for the purpose of this Agreement, and (ii) not disclose the other Party’s Confidential Information to any person other than: (a) the applicable Party’s directors and officers or other employees whose knowledge of such information is appropriate for the said purposes, (b) any professional advisers acting on the applicable Party’s behalf in connection with the said purposes, (c) any representative of any financial institution or investor as part of the “due diligence” in connection with any potential loan, investment, merger or acquisition, or (d) any other person approved in writing by the disclosing Party.
- It is accepted by the Parties that nothing contained in this Agreement shall in any way restrict either of the Parties’ right to use, disclose or otherwise deal with any of the Confidential Information which (i) is rightfully obtained by the receiving Party without breach of any obligation to maintain its confidentiality; (ii) is or becomes known to the public through no act or omission of the receiving Party; (iii) the receiving Party develops independently without using the Confidential Information of the other Party; (iv) was in the Recipient’s possession prior to its being disclosed; or (v) is disclosed in response to a valid court or governmental order if the receiving Party has complied with the requirements set forth in Section D below.
- In the event that a Party receives a request or demand, by subpoena or otherwise, from any person or by court or governmental order that appears to call for the disclosure or production of any Confidential Information, such Party shall, in addition to preserving and invoking all applicable privileges, immunities and protections as required by this Agreement, immediately notify, unless prohibited by law, the other Party of such request and shall not voluntarily surrender or disclose any Confidential Information without first providing, to the extent legally permissible, the other Party a reasonable opportunity to protect its interests in an appropriate court, or in such other manner as may be appropriate having regard to the nature and source of the request or demand. Each Party shall take all steps necessary to permit the assertion of all applicable rights and privileges with respect to all Confidential Information and will cooperate fully with the other Party to this Agreement in any judicial proceeding relating to the disclosure of Confidential Information. Nothing in this Agreement shall require any Party or representative thereof to go into contempt of court for violating a court order.
- Termination for Cause by Either Party: This Agreement may be terminated by either party if the other party is in breach of any of its material obligations contained herein and such breach is not reasonably cured by the breaching party within thirty (30) days of receipt of written notice of an alleged breach.
- By OpSec: OpSec may terminate this Agreement immediately upon written notice to Customer, if it is advised by competent outside counsel through a legal opinion of such counsel that (i) the provision of any or all of the such Services will be rendered illegal as a result of legislation or a regulation then in effect or (ii) OpSec is at risk of being sued by a third party as a result of its provision of any of such Services.
- By Customer: Customer may immediately terminate this Agreement if Customer is advised by competent outside counsel through a legal opinion of such counsel that (i) the provision of any or all of the Services will be rendered illegal as a result of legislation or a regulation then in effect or (ii) Customer is at risk of being sued by a third party in connection with the Services or the Agreement.
Indemnification. OpSec shall defend, indemnify and hold harmless Customer, its affiliates, and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) OpSec’s gross negligence or willful misconduct relating to the terms of this Agreement or the Services provided hereunder; or (ii) any claim that the Services infringe any U.S. patents, trade secrets, copyrights, trademarks or any other rights, including privacy rights, of any third party. OpSec’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.
Customer shall defend, indemnify and hold harmless OpSec, its affiliates and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) Customer’s intentional or negligent misrepresentation of fact or data relating to the terms of this Agreement or the Services provided hereunder; (ii) any claim that the materials or records supplied to OpSec by Customer infringe any U.S. copyright, trademark, patent or trade secret rights of any third party on account of the use or possession of said materials or records by OpSec as contemplated within the course and scope of OpSec Services under this Agreement; or (iii) any claim arising from OpSec undertaking any enforcement action contemplated within the course and scope of the Services under this Agreement. Customer’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.
If either Party receives notice of a claim that is covered by this Section, such notice must be promptly forwarded to the financially responsible Party. The Party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible Party. The Party against whom the claim is made may not settle the claim without the consent of the financially responsible Party, although such consent may not be unreasonably withheld.
Governing Law. The Agreement is governed by the laws of the State of Idaho, exclusive of its choice of law principles, and the laws of the United States of America.
Notices. Notices hereunder regarding any non-routine legal matter (such as breach, indemnification, termination or arbitration) shall be in writing and deemed sufficient and received if delivered in person or when sent via pre-paid overnight courier or Certified Mail, to the address of the party set forth in the Order Form.
No Waiver of Breach: Any waiver, express or implied, or any other failure to exercise a right (including any termination right) or insist on a condition, by either Customer or OpSec with respect to any breach of any of the provisions of this Agreement shall not operate as a waiver of such right or as a waiver in respect of any subsequent breach of any of the provisions of this Agreement.
Data Protection and Permitted Purpose
When using the Anti-Piracy Service, Customer will (and Customer represents and warrants that it will) comply with: (i) the General Data Protection Regulation (2016/679) and any national laws made pursuant to it; and (ii) any other similar national privacy law (together, the “Data Protection Legislation“) in respect of its processing of any personal data (as such term is defined in Data Protection Legislation) made available by or on behalf of OpSec in connection with the Anti-Piracy Service.
Customer acknowledges that any Whois information may contain personal data and that, to the extent Customer records and uses that personal data, Customer is a separate data controller of that personal data (and not a joint controller).
Customer will only use the Anti-Piracy Service (and any personal data contained in Whois information) for the following “Permitted Purposes“: (i) to investigate IP infringement, fraud and other improper uses of domain names and connected email addresses, as well as to take enforcement action in relation to such infringement, fraud or improper uses; (ii) to identify the entity or individual that “owns” and controls a domain as part of due diligence undertaken in connection with corporate or financial transactions; or (iii) to comply with a requirement forming part of generally accepted principles of good practice for the furtherance of internet security.
Where required by Data Protection Legislation, Customer will carry out a legitimate interests assessment in respect of the processing by it of personal data contained in Whois information (including any such data accessed by Customer in connection with the Anti-Piracy Service), and shall only carry out the processing of such personal data if the assessment confirms that Customer’s processing complies with the Data Protection Legislation.
OpSec makes available a privacy notice for the Anti-Piracy Service available on its website in respect of OpSec’s own processing of personal data.