Prelude Research, Inc., including its affiliates, and suppliers (collectively "Prelude") sells licenses to the Prelude Detect software for lawful and ethical security testing purposes. Prelude Detect is meant for use by an extremely technical and skilled end user, and it is up to you to ensure the software meets your needs and behaves in a safe manner for your use cases. All users acknowledge that Prelude disclaims all liability for damages caused by use of Prelude Detect, even if Prelude has been advised of such potential damages.
Please make sure you read through, understand and agree with these terms before you use Prelude Detect.
This copy of Prelude Detect (“Prelude Detect”, or the "Services") and accompanying documentation is provided as a limited license and not sold. The software associated with the Services is protected by copyright laws and treaties, as well as laws and treaties related to other forms of intellectual property. Prelude owns all intellectual property rights in the Services. The Licensee's ("you" or "your") limited license to download, use, copy, or change the Services is subject to these rights and to all the terms and conditions of this Services Agreement (the "Agreement").
YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY REGISTERING FOR AN ACCOUNT AND USING THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT BEFORE YOU WILL BE ALLOWED TO USE PRELUDE DETECT.
You are entitled to the use of Prelude Detect unless the license is revoked by Prelude, including for any violations of this Agreement by you. Prelude hereby grants you, during the License Term only, a revocable, non-exclusive, non-transferable license to use Prelude Detect solely for its non-commercial internal business purposes.
You may only use the Services as explicitly set forth in this Agreement. You are solely responsible for determining whether the Services are sufficient for your purposes, including but not limited to, whether the Services satisfy your own legal and/or regulatory requirements.
You will (a) be responsible for compliance with this Agreement, (b) be responsible for the interoperation of any third party, non-Prelude applications with which you use Services, and (c) use Services only in accordance with this Agreement and applicable laws and government regulations.
You agree that you will not: (i) reproduce, modify, distribute, transfer, or make available the Services, or any portion thereof to any third party; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the underlying source code for the Services; (iii) tamper with or modify any data collected by the Services; (iv) create an account for anyone other than yourself; (v) use another user’s account; (vi) harass, abuse, or harm another person by use of the Services; (vii) bypass or circumvent any access controls or Services use limits; (viii) remove any proprietary rights notices or other notices contained in the Services; or (ix) publicly publish any performance or benchmark tests or analysis related to the Services, or use thereof, without Prelude’s prior written permission.
You acknowledge that the Services will require you to share with Prelude certain information which may include limited personal information (such as usernames, email address and/or phone number) solely for the purposes of providing and improving the Services. You warrant that, prior to registering to use the Services, all personal information that is transferred to Prelude has been collected, processed, and transferred in compliance with applicable law, in particular, that you have a valid legal basis for processing such personal information prior to transferring it to Prelude.
You own all data delivered to Prelude by you or collected by Prelude on your behalf (the “Customer Data”). You hereby grant to Prelude a fully paid, royalty-free, limited, worldwide, non-exclusive license to use Customer Data to provide the Services to you, to verify data integrity, and use data regarding the use of the Services in order to make improvements and enhancements to the Services. You grant to Prelude a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of the Services. You acknowledge that the Services are not intended to process personal data and agree to implement measures ensuring that no personal data are accessed by the services.
During the term of this Agreement, Prelude may make updates or modifications to the Services and its features or functionality. During the License Term only, Prelude grants the right to use, as part of the Services, software updates as they are made generally available to Prelude's customers (“Updates”). Prelude decides the frequency and content of Updates, including those that add additional methods for security testing. Users are encouraged to install Prelude Detect Updates and use them to maximize the effectiveness of the Services.
Prelude offers email support on a “best efforts” basis for the Services during the License Term only. Prelude shall not be obligated to support third-party products or dependencies used by or with the Services.
Neither party shall assign, subcontract or otherwise transfer any or all of its rights or obligations hereunder without the prior written consent of the other party; provided that Prelude may assign its rights and obligations under this Agreement without prior written notice or consent, to an affiliate or in conjunction with the sale or other transfer of all or substantially all of the business.
THE SERVICES ARE BEING PROVIDED "AS IS" AND UNLESS OTHERWISE EXPLICITLY AGREED TO IN WRITING BY PRELUDE, PRELUDE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OTHER THAN AS SET FORTH IN THIS AGREEMENT OR IN THE LIMITED WARRANTY DOCUMENTS PROVIDED WITH THE SERVICES.
YOU WARRANT THAT THE SERVICES WILL BE USED BY AN EXTREMELY TECHNICAL AND SKILLED USER AND WILL BE USED IN A SAFE AND ETHICAL MANNER.
Prelude makes no warranty that the Services will meet your requirements or operate under your specific conditions of use. Prelude makes no warranty that operation of the Services will be secure, error free, or free from interruption. YOU MUST DETERMINE WHETHER THE SERVICES SUFFICIENTLY MEET YOUR REQUIREMENTS FOR SECURITY AND UNINTERRUPTABILITY. YOU BEAR SOLE RESPONSIBILITY AND ALL LIABILITY FOR ANY LOSS INCURRED DUE TO FAILURE OF THE SERVICES TO MEET YOUR REQUIREMENTS. PRELUDE WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE FOR THE LOSS OF DATA ON ANY COMPUTER OR INFORMATION STORAGE DEVICE.
UNDER NO CIRCUMSTANCES SHALL PRELUDE, OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THIS AGREEMENT, OR FROM THE FURNISHING, PERFORMANCE, INSTALLATION, OR USE OF THE SERVICES, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR TORT (INCLUDING NEGLIGENCE) OF YOU OR ANY OTHER PARTY, EVEN IF PRELUDE IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES RELATING TO THE SERVICES SHALL BE LIMITED TO THE AMOUNT PAID AND PAYABLE FOR THE SERVICES LICENSES IN THE PREVIOUS TWELVE MONTH PERIOD OR $100, WHICHEVER IS LESS. TO THE EXTENT THAT THE APPLICABLE JURISDICTION LIMITS PRELUDE'S ABILITY TO DISCLAIM ANY IMPLIED WARRANTIES, THIS DISCLAIMER SHALL BE EFFECTIVE TO THE MAXIMUM EXTENT PERMITTED. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT PRELUDE’S LIABILITY FOR DIRECT DAMAGES RESULTING FROM MISAPPROPRIATION OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
You will indemnify and hold harmless Prelude and its affiliates, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any breach of any representation, warranty, covenant, or obligation in this Agreement or any intentional misconduct or negligence by you. In the event of any third-party claim, demand, suit, or action (a “Claim”), for which Prelude (or any of its affiliates, employees, or agents) is or may be entitled to indemnification hereunder, Prelude may, at its option, require you to defend such Claim at your sole expense. You may not agree to settle any such Claim without Prelude’s express prior written consent.
The Agreement and Services will be governed by New York law except for its conflicts of law principles. All claims arising out of or related to this Agreement or the Services must be litigated exclusively in the Federal or State courts of New York County (Manhattan Borough), New York, and the parties consent to venue and personal jurisdiction there.
If any provision of this Agreement shall be held to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. To the extent any express or implied restrictions are not permitted by applicable laws, these express or implied restrictions shall remain in force and effect to the maximum extent permitted by such applicable laws.
This Agreement shall be effective as of the date you agree to the terms herein, and continues until terminated by either party at any time. Upon termination or expiration of this Agreement, the rights and licenses granted to you under this Agreement shall automatically and immediately terminate, Prelude shall terminate your access to the Services, and you shall immediately cease using the Services. Any License subject to this Agreement will be forfeited if you fail to comply with any of the terms of this Agreement or are in breach of this Agreement.
All terms that must survive termination in order to have their customary effect, including terms related to confidentiality, indemnification, and limitation of damages and liability, will survive termination or expiration of this Agreement.
Upon termination of this Agreement, you shall be obligated to promptly, and in any event no later than 14 days after termination, remove all discontinued probes that were installed on your devices during the provision of the Services. Prelude shall not be liable for any damages or losses resulting from the your failure to comply with this obligation.
You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of Prelude products, including, without limitation, all applicable U.S. export control and economic sanctions laws, including the Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”) and Office of Foreign Asset Control Regulations (“OFAC”). You represent and warrant that you are not and will not be listed on any export control and economic sanctions lists, including those promulgated pursuant to the EAR, ITAR and OFAC, or on any other export exclusion list of any other U.S. or non-U.S. governmental agency. You warrant that you will not export Prelude products to: (1) destinations requiring a license, (2) persons or entities requiring a license, or (3) end-users and end-uses requiring a license, unless such license has been obtained pursuant to applicable provisions of the EAR, ITAR and/or OFAC regulations.
This section applies to all acquisitions of the Services by or for the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the federal government. The Services were developed at private expense and is Commercial Computer Software, as defined in Section 12.212 of the Federal Acquisition Regulation (48 CFR 12.212 (October 1995)) and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (48 CFR 227.7202-1, 227.7202-3 (June 1995)). If for any reason, Sections 12.212, 227.7202-1 or 227.7202-3 are deemed not applicable, then the Government's rights to use, duplicate or disclose the Software are limited to "Restricted Rights" as defined in 48 CFR Section 52.227-19(c)(1) and (2) (June 1987), or DFARS 252.227-7014(a)(14) (June 1995), as applicable.
"Confidential Information" means all non-public, confidential or proprietary information, in whatever form or medium, by one party to the other party or its affiliates, or to any of such party’s or its affiliates’ employees officers, directors, partners, members, shareholders, agents, attorneys, accountants, contractors or advisors, and shall include, but not be limited to, the Services licensed by Prelude to you, information relating to a party’s business concepts, non-public or personal information about customers, merchandising methods, ideas, processes, formulas, data programs, know-how, improvements, discoveries, business plans, financial information and compilations, developments, designs, inventions, techniques, marketing plans, strategies, forecasts, potential new product information, budgets, technology, projections, pricing strategies, costs, customer and supplier information, consumer personally identifiable information and all other information defined as a “trade secret” under the laws of the applicable jurisdictions.
Each party agrees that the party receiving Confidential Information (“Receiving Party”) shall hold in strictest confidence the Confidential Information of the party disclosing the Confidential Information (“Disclosing Party”) and shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Disclosing Party, without the prior written consent of the Disclosing Party, except the Receiving Party may disclose Confidential Information on a need-to-know basis, to affiliates, subsidiaries, employees, agents, contractors or representatives of the Receiving Party who are informed by the Receiving Party of the confidential nature of the Confidential Information and the obligations of the Receiving Party under this agreement or in accordance with a judicial or other governmental order, but only if the Receiving Party promptly notifies the Disclosing Party of the order and complies with any applicable protective or similar order. The Receiving Party will cause its affiliates, subsidiaries, employees, agents, contractors or representatives to comply with the provisions of this section and shall remain liable for any breaches of confidentiality by such affiliates, subsidiaries, employees, agents, contractors or representatives.
Prelude and you agree that the Receiving Party will promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement; and assist the Disclosing Party in every reasonable way to retrieve any Confidential Information that was used or disclosed by the Receiving Party or an employee, agent and representative of the Receiving Party without the Disclosing Party’s specific prior written authorization and to mitigate the harm caused by the unauthorized use or disclosure.
Prelude and you agree that the Receiving Party will not be in breach of this section by using or disclosing Confidential Information if the Receiving Party demonstrates that the information used or disclosed (a) is generally available to the public other than as a result of a disclosure by the Receiving Party or an employee, agent and representative of the Receiving Party; (b) was received by the Receiving Party from a third party without any limitations on use or disclosure; or (c) was independently developed by the Receiving Party without use of the Confidential Information.
Prelude and you agree that upon the request of the Disclosing Party, the Receiving Party will (a) promptly return to the Disclosing Party all materials furnished by the Disclosing Party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the Receiving Party, and provide written certification that all such Confidential Information has been returned to the Disclosing Party, or (b) promptly destroy all materials furnished by the Disclosing Party containing Confidential Information, together with all copies and summaries of Confidential Information in the possession or under the control of the Receiving Party, and provide written certification that all such Confidential Information has been destroyed by the Receiving Party.
Prelude and you acknowledge and agree that the remedies available at law for any breach of this Agreement will, by their nature, be inadequate. Accordingly, each Party may obtain injunctive relief or other equitable relief to restrain a breach or threatened breach of this Agreement or to specifically enforce this Agreement, without proving that any monetary damages have been sustained.
This Agreement is the final and complete Agreement between you and Prelude with respect to the subject matter in this Agreement and supersedes and replaces any prior proposal, representation, discussion or understanding between you and Prelude. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted.
This agreement does not create or imply any relationship in agency or partnership between you and Prelude.
This Agreement and the terms and conditions contained in this Agreement apply and are binding upon your successors and assignees.
We reserve the right to modify this Agreement at any time by providing such revised Agreement to you or by publishing the revised Agreement. Your continued use of the Products shall constitute your acceptance to be bound by the terms and conditions of the revised Agreement.
This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. The federal and state courts sitting in New York, New York, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement. Notwithstanding the foregoing, each party shall have the right to commence and prosecute any action for injunctive relief before any court of competent jurisdiction.
The failure of you or Prelude to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
Effective Date: March 30, 2023
