Master License And Subscription Agreement

Last Updated: January 17, 2023

Welcome, and thank you for your interest in Thistle Technologies, Inc. (“Thistle Technologies”) and Thistle Technologies’ hosted platform and services for security and device updates (collectively, the “Thistle Technologies Services”).  Please read this Master License and Subscription Agreement (“Agreement”) carefully.  As part of Thistle Technologies’ registration process, the entity that is signing up for or purchasing a subscription to Thistle Technologies Services (“Customer”) must create an Account (as defined in Section 2.1) and agree to be bound by the terms and conditions of this Agreement.  Additionally, to sign-up for or purchase a subscription to any Thistle Technologies Services hereunder, or access our Downloadable Tools (as defined below), the Customer must execute an ordering document with Thistle Technologies that references this Agreement or sign-up for a subscription via our website located at https://auth.thistle.tech/signup (any such subscription request or order form that is accepted by Thistle is hereafter referred to as an “Order”).  Each Order will identify the applicable subscription tier and any usage caps or limitations with respect to the Thistle Technologies Services.  Thistle Technologies will not be required, by virtue of this Agreement or otherwise, to provide the Customer with any other features or functionality of the Thistle Technologies Services which are not expressly covered by such Order.  All Orders will be deemed to be a part of this Agreement and are hereby incorporated by reference.  

THIS AGREEMENT, TOGETHER WITH ANY APPLICABLE ORDER(S), SETS FORTH THE LEGALLY BINDING CONTRACT BETWEEN THISTLE TECHNOLOGIES AND THE CUSTOMER THAT GOVERNS THE USE OF THE SERVICES.  BY CLICKING “I ACCEPT,” OR EXECUTING AN ORDER, YOU REPRESENT AND WARRANT THAT: (A) YOU HAVE FULL LEGAL, RIGHT AUTHORITY AND CAPACITY TO BIND THE CUSTOMER TO THIS AGREEMENT; (B) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (C) YOU AGREE, ON BEHALF OF THE CUSTOMER, TO THIS AGREEMENT.   

This Agreement is subject to occasional revision, and Thistle Technologies reserves the right to modify fees for accessing or using the Thistle Technologies Product in the future.  See Section 10.4 of this Agreement for further information about changes to this Agreement.

  1. DEFINITIONS.  

    1. “Customer Content” means any content, materials, or data that is uploaded, transmitted, or otherwise provided to the Thistle Technologies Services by or on behalf of, or at the direction of, The Customer or its Authorized Users (as defined in Section 2.2) or via the Customer Devices. 

    2. “Customer Device” means hardware devices that are manufactured by, or on behalf of, or for Customer.

    3. “Downloadable Tools” means Thistle Technologies’s proprietary software and other documentation or materials that are made available to Customer in downloadable form under this Agreement for the purpose of assisting Customer in enabling the Customer Devices to interoperate with the Thistle Technologies Services, including: (i) Thistle Technologies’ Device Client (which may be made available in source code and/or executable code format), including any bug fixes, enhancements, additions, and/or other modifications thereto which are made available by Thistle Technologies to Customer under this Agreement (collectively, the “Device Client”), and (ii) any other executable software packages that are made available by Thistle Technologies to Customer under this Agreement, including without limitation Thistle Technologies’s Command Line Interface and Desktop Client, and any bug fixes, enhancements, additions, and/or other modifications thereto which are made available by Thistle Technologies to Customer under this Agreement (the “Executable Packages”). 

    4. “Thistle Technologies Product” means the Downloadable Tools, the Thistle Technologies Services, and any other software, services, or materials made available by or on behalf of Thistle Technologies through an Account.

  2. ACCOUNT ACCESS; LICENSE AND SERVICES

    1. Account Registration.  To assist Customer in using the Thistle Technologies Services and creating Customer Devices that interoperate with the Thistle Technologies Services, Customer may be given access to one or more online account(s) for the Thistle Technologies Services (“Account”) solely for Customer’s internal business use.  To access an Account, the Customer must complete the Account registration process.  As part of the Account registration process, the Customer may be required to provide Thistle Technologies with some information about the Customer, such as the Customer’s name, email address, mailing address, and other contact information.  Customer represents and warrants that the information Customer provides to Thistle Technologies is accurate and complete and Customer agrees that Customer will keep it accurate and up-to-date at all times.  When the Customer registers for an Account, the Customer may be asked to provide a password.  Customer is solely responsible for maintaining the confidentiality of Customer’s Account(s) and password(s), and Customer accepts responsibility for all activities that occur under Customer’s Account(s).  Customer will use reasonable efforts to prevent any unauthorized access or use of the Thistle Technologies Product and Customer agrees to immediately notify Thistle Technologies of any unauthorized use, or suspected unauthorized use, of the Account(s) or any other breach of security.  Additionally, if there is unauthorized access or use by anyone who obtained access directly or indirectly through Customer, Customer will also take all steps reasonably necessary to terminate the unauthorized access or use and cooperate and assist with any actions taken by Thistle Technologies to remediate any issues resulting from, or related to, such unauthorized access or use.  Thistle Technologies will not be liable for any loss or damage arising from any unauthorized use of the Account(s) or the Customer’s failure to comply with the above requirements.

    2. Authorized Users.  Customer will only permit the Thistle Technologies Services to be accessed by Customer’s employees and contractors that are authorized by Customer to access the Thistle Technologies Services (“Authorized Users”) solely for Customer’s internal business purposes, including updating Customer Devices, provided that Customer shall remain liable for all acts and omissions of such users.  Authorized Users may be granted Admin status.  “Admins” are users that are granted administrative privileges, such as the ability to invite additional users to access Accounts on the Thistle Technologies Services and set access levels and control privileges for Customer’s other Authorized Users.  The Customer is solely responsible for determining which Authorized Users should be granted Admin status and for the level of access and privileges granted to its Authorized Users.  Customer will ensure its Authorized Users’ use of the Thistle Technologies Services is in compliance with the terms of this Agreement and Customer will be solely responsible for enforcing any of Customer’s internal policies regarding its Authorized Users’ use of the Account(s), Thistle Technologies Services and other Thistle Technologies Product.

    3. License to Downloadable Tools.  Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Thistle Technologies grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive, revocable license to: (a) use, reproduce and modify the Device Client solely to enable the Customer Devices to interoperate with the Thistle Technologies Services; (b) reproduce, compile and install the Device Client (including as modified by Customer pursuant to subpart (a) above) in executable format on Customer Devices; (c) reproduce and install the other Executable Packages on Customer Devices; and (d) distribute the Executable Packages and Device Client solely as installed on Customer Devices in accordance with subparts (b) and (c) above.  For clarity, the Device Client and Executable Packages may only be distributed on Customer Devices as permitted above, and Customer agrees not to, directly or indirectly, distribute the Device Client or Executable Packages in any other manner (including on a stand-alone or software-as-a-service basis) or on any third-party devices, equipment, or hardware. 

    4. Open Source Materials.  The Customer acknowledges that the use, reproduction, and distribution of certain third-party materials included in the Downloadable Tools may be subject to open-source software license terms, which will be identified in the documentation for the Downloadable Tools.  Notwithstanding anything to the contrary in this Agreement, all such third-party materials are governed solely by the terms of the applicable third-party licenses and not this Agreement. 

    5. Access and Use of Thistle Technologies Services.  Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Thistle Technologies grants Customer a non-exclusive, non-transferable right and license, during the Subscription Term (as defined in Section 4.2 below) to access and use the Thistle Technologies Services in accordance with any usage caps or limitations set forth in the applicable Order solely for Customer’s internal business use, including (a) configuring Customer Devices so that they can interoperate with the Thistle Technologies Services, and (b) pushing updates to Customer Devices on which a copy of the Device Client has been installed in accordance with this Agreement.  For clarity, while Thistle Technologies may make Downloadable Tools available to Customer to enable Customer to distribute Customer Devices that are interoperable with the Thistle Technologies Services, Customer will be solely responsible for integrating and implementing the Downloadable Tools with the Customer Devices in a manner that complies with this Agreement and testing and maintaining such integration and/or implementation to ensure that the Customer Devices are and continue to be interoperable with the Thistle Technologies Services.  Thistle Technologies will not be liable for any loss or damage arising from any interoperability issues or problems with such integration and/or implementation.  

    6. Responsibility for Customer Devices.  Customer is solely responsible for all activities required by or otherwise related to the development and production of the Customer Devices, including without limitation the safety, quality, performance, accuracy, completeness, quality, legal right to use or possess, appropriateness, and reliability of the Customer Devices.  Customer shall comply with all laws and regulations applicable to the use, provision, and distribution of the Customer Devices, including export and import of the same.  

    7. Restrictions.  The Thistle Technologies Product is made available to the Customer solely for its own internal business use, including updating Customer Devices.  To the maximum extent permitted by applicable law, Customer will not, and will not permit or authorize any other person to, directly or indirectly, in whole or in part, do or attempt to do any of the following: (a) license, distribute, make available or otherwise transfer any Downloadable Tools or any modifications thereto as a stand-along product or as part of any software or software-as-a-service product or offering; (b) license, distribute, make available or otherwise transfer any Downloadable Tools other than as embedded on Customer Devices in accordance with Section 2.3; (c) use, or permit any user of a Customer Device to use, the Downloadable Tools or any modifications thereto for any purpose other than interoperating with the Thistle Technologies Services; (d) except for the sale and distribution of Customer Devices on which the Downloadable Tools are embedded in accordance with Section 2.3, distribute, make available, publicly perform, publicly display, license, sell, resell, share, rent, lease, sublease, assign, or otherwise transfer any of the Thistle Technologies Product to any third party without Thistle Technologies’ prior written consent; (e) access or use the Thistle Technologies Product for any purpose or use other than as expressly permitted by this Agreement and the applicable Order(s); (f) share Account credentials with any third party; (g) reproduce, modify, adapt, translate or create derivative works of any part of the Thistle Technologies Product (other than as expressly permitted by Section 2.3); (h) except with respect to Downloadable Tools that are provided to Customer by Thistle Technologies in source code format, disassemble, decompile, reverse engineer or reverse assemble any portion of the Thistle Technologies Product or attempt to discover any source code or underlying ideas, structure, organizations or algorithms of the Thistle Technologies Product; (i) access or use the Thistle Technologies Product in order to build a competitive product or service, or copy any features, functions or graphics of the Thistle Technologies Product; (j) use the Thistle Technologies Product to store or transmit material in violation of third party privacy or intellectual property rights or applicable privacy laws; (k) remove, modify tamper with, or alter any trademark, logo, copyright or other proprietary notices or legends associated with the Thistle Technologies Product; (l) use the Thistle Technologies Product for any unlawful purpose, in violation of any applicable law or in a manner that could otherwise give rise to civil liability; (m) alter or interfere with the normal operation, behavior, functionality or performance of, transmit malicious code to, or disrupt the integrity of third party data contained in or hosted on, the Thistle Technologies Services; (n) interfere with or circumvent any feature of the Thistle Technologies Product, including without limitation any security or access control mechanism; (o) interfere with or disrupt any network, equipment or server that is connected to or used by the Thistle Technologies Services; (p) upload or disseminate any virus, adware, spyware, worm or other malicious code or transmit unlawful, infringing or harmful data, content or code to or from the Thistle Technologies Product; (q) make any Thistle Technologies Product available to any third party on a service bureau, rent, lease, or software as a service basis; (r) engage in framing, mirroring, or otherwise simulating the appearance or function of the Thistle Technologies Product; (s) perform or publish any performance or benchmark tests or analyses relating to the Thistle Technologies Product; or (t) perform any fraudulent activity, including impersonating any person or entity, claiming a false affiliation, or accessing any Account without permission.  Thistle Technologies has the right, but not the obligation, to monitor Customer’s use of the Thistle Technologies Product to determine compliance with the terms and conditions of this Agreement.  

    8. Service Levels; Updates to the Thistle Technologies Services.  Each Order will identify any service level agreement and/or support policy that is applicable to the Thistle Technologies Services ordered by the Customer (“Support Policy”).  If no service level agreement and/or support policy is identified in the Order, then no Support Policy is applicable to such Thistle Technologies Services.  Thistle Technologies’ support and maintenance obligations, if any, with respect to the Thistle Technologies Services will be solely as set forth in such Support Policy.  Unless specified under the Support Policy, Thistle Technologies is under no obligation to make available to the Customer any new features, functionality, updates, or new versions of the Thistle Technologies Product.  Thistle Technologies reserves the right to modify or update the Thistle Technologies Product at any time, in its sole discretion.  The Customer is solely responsible for ensuring that the Thistle Technologies Product remains compatible with Customer Devices. 

    9. Trial or Unpaid Subscription Access.  If Thistle Technologies has made the Thistle Technologies Product (or any features or functionality thereof) available to Customer on a “trial” or “pre-release” basis, or otherwise under a free or unpaid subscription tier, then unless expressly indicated in the applicable Order: (i) Thistle Technologies will be free to terminate or suspend Customer’s access thereto for any reason at any time and without liability of any kind, and (ii) no Support Policy will be applicable thereto.  Notwithstanding any other provision of this Agreement, any such Thistle Technologies Product and access is provided on an “AS IS” and “AS AVAILABLE” basis without warranty or support of any kind, express or implied.  

  3. FEES; PAYMENT

    1. Fees.  Customer agrees to pay to Thistle Technologies the fees for the Thistle Technologies Services that Customer purchases or uses (including any overages based on consumption or usage) in accordance with the pricing and payment terms presented to Customer at the time Customer registers for a subscription or in the Order.  This information will be publicly available on the Thistle Technologies website pricing page thistle.tech/plans. Fees will not be reduced if actual usage is lower than the limits set forth in the applicable Order.  For subscriptions to the Thistle Technologies Services that automatically renew, the billing cycle (typically monthly or annually) will be indicated in the applicable Order, and in such case, the applicable subscription fees for any subsequent billing cycle will be charged at Thistle Technologies’ then-current published list price, until the subscription terminates in accordance with this Agreement.  Unless otherwise expressly set forth in an Order, any overage fees will be billed to Customer monthly in arrears.  Customer will be billed for all amounts due under this Agreement using the billing method Customer selects through its Account management page or other Customer-provided payment methods on file in accordance with the terms set forth in the Order.  The Customer must provide current, complete, and accurate information for the Customer’s billing account and promptly update all information to keep the Customer’s billing account current, complete, and accurate.  Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by law.  The Customer must terminate any automatically renewing subscription before it renews in accordance with this Agreement in order to avoid billing of the recurring subscription fees to Customer.  By choosing an automatically renewing subscription plan, Customer acknowledges that such Thistle Technologies Services have a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination.  If there are no valid payment methods on file for Customer, Thistle Technologies may send Customer invoices for the balance of any amounts due.  Thistle Technologies, at its sole discretion, may make promotional offers with different features and different pricing to any of our customers.  These promotional offers, unless made to Customer, will have no bearing whatsoever on Customer’s offer or contract.

    2. Taxes.  Prices do not include, and Customer must pay or reimburse Thistle Technologies for, all federal, state, local, sales, use, value-added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Thistle Technologies’ net income).  If Thistle Technologies has a legal obligation to pay or collect sales tax for which Customer is responsible, Thistle Technologies will calculate the sales tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer’s billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides Thistle Technologies with a valid tax exemption certificate acceptable to the appropriate taxing authority. 

    3. Overdue Amounts.  Thistle Technologies may charge the Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue. 

  4. TERM AND TERMINATION

    1. Term.  This Agreement will start on the effective date of Customer’s first Order and, unless terminated earlier in accordance with this Agreement, will continue until all Orders hereunder have expired or been terminated for ninety (90) days.  Additionally, in the event that all Orders have expired or terminated, then either party may terminate this Agreement upon written notice to the other party.  

    2. Subscription Term.  The duration of the Customer’s initial subscription term for each Order will be as set forth in such Order (“Initial Subscription Term”).  Unless otherwise expressly indicated in the Order, all Orders will automatically renew on a monthly or annual basis (as applicable, a “Renewal Subscription Term”) until terminated or canceled by Customer or Thistle Technologies as set forth below.  The Initial Subscription Term of an Order, together with any applicable Renewal Subscription Term(s) for such Order, are collectively, the “Subscription Term.”

    3. Termination of Recurring Subscriptions.  Unless otherwise set forth in an Order, either party may cancel any automatically renewing subscription(s) under this Agreement by providing the other party with at least thirty (30) days’ notice of its intent to terminate prior to the end of the then-current Subscription Term.  The Customer should send notices of termination to support@thistle.tech.  If Customer cancels or Thistle Technologies terminates a subscription as set forth above, then Customer will continue to have access to the Thistle Technologies Services until completion of Customer’s then-current Subscription Term, provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement.  If Customer or Thistle Technologies terminates a paid subscription as set forth above then Thistle Technologies, at its sole option and discretion, may continue to permit Customer to have access to all or part of the Thistle Technologies Services under a free subscription tier.

    4. Termination for Cause.  Thistle Technologies may terminate this Agreement and/or any applicable Order, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment of any amounts owed to Thistle Technologies.  Additionally, either party may terminate this Agreement and all Orders in the event that: (i) the other party is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; (ii) the other party files for or is adjudicated bankrupt or suffers any other analogous event, or (iii) it is legally required to do so.

    5. Effect of Termination.  Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and access to the Thistle Technologies Services will automatically terminate; (ii) all outstanding payment obligations of the Customer become due and payable immediately; and (iii) the Customer will immediately cease the use of all of the Thistle Technologies Product (including without limitation all Downloadable Tools) and destroy all copies of the Downloadable Tools and any other documentation and/or Confidential Information (as defined in Section 7) of Thistle Technologies that is in the Customer’s possession or control.  All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 2.1, 2.2, 2.4, 2.6, 2.7, 3, 4.5, and 5 through 10.

    6. Delinquent Accounts; Suspension.  Thistle Technologies reserves the right to suspend, terminate, or downgrade the Thistle Technologies Services to a free service tier, in its sole discretion, if any amount under an Order is due but unpaid until such time as all amounts due under this Agreement are paid in full.  In addition to the amount due for access to the Thistle Technologies Services, Customer will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees.  Additionally, Thistle Technologies reserves the right to suspend Customer and/or its Authorized Users’ access to the Thistle Technologies Product or any portion thereof at any time: (i) in the event that Thistle Technologies suspects in good faith that Customer or any of its Authorized Users is using any Thistle Technologies Product in violation of this Agreement, or otherwise in violation of applicable laws, (ii) as described in Thistle Technologies’ Copyright Policy, a copy of which is attached hereto as Exhibit A, or (iii) if Thistle Technologies otherwise believes such action is reasonable to comply with any applicable law, regulation or court order.  

  5. CUSTOMER RESPONSIBILITIES

    1. Customer Content.  The Customer hereby grants Thistle Technologies a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, irrevocable, right and license to (i) use, host and reproduce the Customer Content for the purpose of operating the Thistle Technologies Services as made available to the Customer hereunder, (ii) transmit and distribute the Customer Content in accordance with the features and functionality of the Thistle Technologies Services, including for the purpose of delivering new functionality, bug fixes or security updates to Customer Devices through the Thistle Technologies Product, and (iii) collect and analyze log and other data related to the Thistle Technologies Product and the provision, use and performance and various aspects of the Thistle Technologies Product and related systems technologies (“Performance Data”) and use such Performance Data and Customer Content internally to train Thistle Technologies’ algorithms, to troubleshoot, provide, administer, improve and enhance the Thistle Technologies Product and for other development, diagnostic, security and corrective purposes.  

    2. Customer Content Restrictions and Responsibilities. The Customer Content is the sole responsibility of the Customer.  This means that the Customer and not Thistle Technologies is solely responsible for all Customer Content that is uploaded to or accessible through the Thistle Technologies Services, including its accuracy, completeness, and suitability, and for backing up all Customer Content.  The Customer acknowledges that Thistle Technologies has no obligation to monitor or pre-screen Customer Content, although Thistle Technologies reserves the right in its sole discretion to pre-screen, refuse or remove any Customer Content from Thistle Technologies Services, including if Thistle Technologies believes it violates this Agreement or is otherwise objectionable.  The Customer agrees not to provide, and represents and warrants that the Customer Content will not contain: (i) any content, data or material that is illegal or violates, infringes or misappropriates any third party’s intellectual property rights, or constitutes an invasion of privacy or misappropriation of publicity rights; (ii) any content or material that is indecent or obscene; or (iii) any computer code, programs, or programming devices that are designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, the operation of the Thistle Technologies Services or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause any Thistle Technologies Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operation.  Thistle Technologies will not be liable to the Customer or any third party for any inability or failure to detect any malware or other suspicious, harmful code or components in Customer Content or other security issues with any Customer Content.  The Customer represents and warrants that it: (a) has all necessary rights, licenses, authorizations, and consents necessary to make the Customer Content available to Thistle Technologies and the Thistle Technologies Services and to permit Thistle Technologies to use and exercise its rights in the Customer Content and Performance Data as set forth in this Agreement; and (b) that the Customer Content does not and will not, when used as contemplated hereunder, infringe any third party’s intellectual property rights.  

    3. Use of Thistle Technologies Services; Devices.  The Customer is solely responsible for all activities required by or otherwise related to the development and production of Customer Devices and the safety, quality, performance, accuracy, completeness, quality, legal right to use or possess, appropriateness, and reliability of the Customer Devices.  The Customer shall comply with all laws and regulations applicable to the use, provision, and distribution of any Customer Devices and the use of the Thistle Technologies Services to push Customer Content, including updates to the same, including export laws and regulations.  The Customer will obtain all necessary consents, permissions, permits, approvals, or licenses to use and permit Thistle Technologies to transmit, distribute, import, and export the Customer Content (including to Customer Devices) in accordance with this Agreement, the functionality of the Thistle Technologies Product, and all applicable laws.  

  6. OWNERSHIP; INTELLECTUAL PROPERTY

    1. Thistle Technologies’ IP.  Subject only to the limited rights expressly granted under this Agreement, Thistle Technologies and/or its licensors shall retain all rights, titles, and interest in and to the Thistle Technologies Product, including all intellectual property rights therein and thereto.  ALL RIGHTS NOT EXPRESSLY GRANTED IN THIS AGREEMENT ARE RESERVED BY THISTLE TECHNOLOGIES (AND ITS LICENSORS).

    2. Customer IP.  As between the Customer and Thistle Technologies, and subject to Thistle Technologies’ intellectual property rights in and to the Thistle Technologies Product, the Customer shall retain ownership of all of the Customer’s right, title, and interest in and to its Customer Devices and Customer Content, including all of the Customer’s intellectual property rights embodied therein.  Notwithstanding the foregoing, the Customer covenants not to assert against Thistle Technologies, its affiliates, licensees, contractors, or users, any intellectual property rights in and to any modifications or derivative works made by the Customer to any of the Downloadable Tools.

    3. Feedback.  If the Customer or any of its Authorized Users provides Thistle Technologies with any suggestions, requests, report edits, corrections, or other feedback relating to the Thistle Technologies Product, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features (collectively, “Feedback”), the Customer hereby grants to Thistle Technologies a worldwide, perpetual, irrevocable, royalty-free, transferable, non-exclusive right to freely disclose, reproduce, distribute, sublicense, modify, exploit and otherwise use and commercialize the Feedback in connection with Thistle Technologies’ business and to include such Feedback in Thistle Technologies’ products and services, without any obligations or restrictions. 

    4. No Trademark Rights.  Nothing in this Agreement gives the Customer a right to use any of Thistle Technologies’ trade names, trademarks, service marks, logos, domain names, or other distinctive brand features.  The Customer agrees not to include the term “Thistle Technologies” as part of the name for any device that interoperates with the Thistle Technologies Services, or to adopt, use or attempt to register, whether as a corporate name, domain name, product name, trademark, service mark or other indication of origin, any trademark of Thistle Technologies or any mark that is confusingly similar to or will dilute the distinctive nature of the Thistle Technologies trademarks.

  7. CONFIDENTIALITY

    1. Definition of Confidential Information.  “Confidential Information” means (i) any information disclosed, directly or indirectly, by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself.  Without limiting the foregoing, the non-public features of the Thistle Technologies Product are the Confidential Information of Thistle Technologies.  However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without the use of, or reference to, the Disclosing Party’s Confidential Information.

    2. Use and Maintenance of Confidential Information.  Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement.  Neither party shall disclose any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality.  Notwithstanding the foregoing, Thistle Technologies may disclose the Customer Content to (i) Authorized Users as permitted by the features and functionality of the Thistle Technologies Services, and (ii) to Thistle Technologies’ service providers (such as Thistle Technologies’ hosting provider) so that these service providers can provide services on Thistle Technologies’ behalf, provided that such service providers are bound by confidentiality obligations.  Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party.  A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and, in such circumstance, will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment.  Notwithstanding the foregoing, Thistle Technologies may list the Customer as a customer in its promotional and marketing materials, including its website.

  8. INDEMNIFICATION

    1. By Thistle Technologies.  Thistle Technologies will defend at its expense any suit brought against the Customer and will pay any settlement Thistle Technologies 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 Thistle Technologies’ software used by Thistle Technologies to operate the Thistle Technologies Services, when used as authorized in this Agreement during the Subscription Term, constitutes a direct infringement of any third party’s U.S. copyright or trade secret; provided that the Customer provides Thistle Technologies with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Thistle Technologies in connection with the defense or settlement of, any such claim.  If any such claim is brought or threatened, Thistle Technologies may, at its sole option and expense: (a) procure for the Customer the right to continue to use the applicable Thistle Technologies Services; (b) modify the Thistle Technologies Services to make it non-infringing; (c) replace the Thistle Technologies Services with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the applicable Thistle Technologies Services, the applicable Order(s), and/or this Agreement and provide a pro-rata refund of any applicable prepaid fees for such terminated Thistle Technologies Services.  Notwithstanding the foregoing, Thistle Technologies will have no liability to the Customer for any claim arising out of or related to (I) the use of any Thistle Technologies Product in combination with software, technology, products, devices, data, or services not provided by Thistle Technologies, including without limitation the Customer Devices, (II) the Customer’s or its Authorized Users’ failure to use any Thistle Technologies Product in accordance with this Agreement or otherwise comply with the terms of this Agreement, or (III) any Customer Content.

    2. Disclaimer.  SECTION 8.1 STATES THE ENTIRE LIABILITY OF THISTLE TECHNOLOGIES, AND THE EXCLUSIVE REMEDY OF THE CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

    3. By Customer.  The Customer shall indemnify and hold harmless (and at Thistle Technologies’ request, defend) Thistle Technologies and its officers, directors, employees, suppliers, consultants, contractors affiliates, and agents (collectively, the “Thistle Technologies Entities”) from and against any and all third party claim, suit, actions, proceedings, losses, and/or damages (including reasonable attorney’s fees), arising out of or relating to (i) any allegation that the Customer Devices or any of the Customer Content infringes any third party’s intellectual property right, misappropriates any trade secret of any third party, or otherwise violates an individual’s rights of publicity or privacy; (ii) any violation by Customer of any applicable law or regulation; (iii) anything described in subparts I-III of Section 8.1 above; (iv) Customer’s violation or alleged violation of any term of this Agreement, including without limitation Sections 2.7 or 10.5; (v) the Customer Devices, or any other Customer Content, update, content or material that is pushed to any Customer Device by Customer, its Authorized Users, or via an Account on the Thistle Technologies Services; (vi) any personal injury or tangible property damage directly caused by the Customer or any the Customer Device(s); or (vii) any gross negligence, misrepresentation, or willful misconduct on the part of the Customer or its representatives or Authorized Users.  Thistle Technologies shall promptly notify the Customer when it becomes aware of any claim eligible for indemnification, provided that any delay in providing such notice shall not relieve the Customer of its indemnity obligations under this Agreement unless, and only to the extent, that the Customer was prejudiced by the delay.  If Thistle Technologies requests the Customer assume defense of the claim, then (a) Thistle Technologies shall reasonably cooperate with the Customer in the defense of such claim at the Customer’s expense, and (b) shall have the right to control the defense and all negotiations relative to the settlement of any such claim, including without limitation selection of counsel, provided that (I) no settlement imposing any affirmative or negative obligations on the part of the Thistle Technologies, including any settlement that includes admission of liability or wrongdoing by Thistle Technologies, may be made without the express written consent of the Thistle Technologies, and (II) Thistle Technologies reserves the right to participate through non-controlling counsel selected by Thistle Technologies at its own expense.

  9. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY

    1. Customer Warranties.  The Customer represents, warrants and covenants that it has and will maintain during the term of the Agreement all necessary right, title, interest, authorizations, and permissions to: (i) access, provide, disclose, or submit, any Customer Content and/or Feedback, as applicable, that the Customer or its Authorized Users provides, provides access to, discloses, or submits to Thistle Technologies or the Thistle Technologies Services; (ii) grant the rights and permissions granted hereunder with respect to any Customer Content or Feedback; and (iii) push any updates or Customer Content to Customer Devices via the Thistle Technologies Services.  

    2. Disclaimer.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE THISTLE TECHNOLOGIES PRODUCT, AND ANY MATERIALS AND CONTENT MADE AVAILABLE BY THISTLE TECHNOLOGIES OR THROUGH THE THISTLE TECHNOLOGIES PRODUCT, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS; (ii) THE THISTLE TECHNOLOGIES ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE THISTLE TECHNOLOGIES PRODUCT, AND ANY MATERIALS AND CONTENT MADE AVAILABLE BY THISTLE TECHNOLOGIES OR THROUGH THE THISTLE TECHNOLOGIES PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE OR RELIANCE.  THE THISTLE TECHNOLOGIES’ ENTITIES DO NOT WARRANT ANY THIRD PARTY WEBSITE CONTENT OR FUNCTIONALITY.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE THISTLE TECHNOLOGIES’ ENTITIES DO NOT WARRANT THAT THE THISTLE TECHNOLOGIES PRODUCT AND ANY OTHER MATERIALS, RECOMMENDATIONS OR CONTENT MADE AVAILABLE THROUGH THE THISTLE TECHNOLOGIES PRODUCT WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER OR ITS AUTHORIZED USERS FROM THISTLE TECHNOLOGIES OR THE THISTLE TECHNOLOGIES PRODUCT WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE THISTLE TECHNOLOGIES’ ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF OR ACCESS TO THE THISTLE TECHNOLOGIES PRODUCT OR ANY OTHER MATERIAL OR CONTENT THAT IS MADE AVAILABLE BY THISTLE TECHNOLOGIES OR THROUGH THE THISTLE TECHNOLOGIES PRODUCT.  THE CUSTOMER UNDERSTANDS AND AGREES THAT THE CUSTOMER’S AND ITS AUTHORIZED USERS’ USE OF THE THISTLE TECHNOLOGIES PRODUCT IS AT THE CUSTOMER’S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE THISTLE TECHNOLOGIES’ ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY DEVICES OR PROPERTY USED IN CONNECTION WITH THE THISTLE TECHNOLOGIES PRODUCT OR ANY LOSS OF DATA OR THIRD PARTY OR THE CUSTOMER CONTENT.  THE THISTLE TECHNOLOGIES PRODUCT IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE THISTLE TECHNOLOGIES PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.  THE THISTLE TECHNOLOGIES’ ENTITIES SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH ACTIVITIES.  NOTWITHSTANDING THE FOREGOING THE THISTLE TECHNOLOGIES’ ENTITIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT THE THISTLE TECHNOLOGIES’ ENTITIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

    3. Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE THISTLE TECHNOLOGIES’ ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE THISTLE TECHNOLOGIES’ ENTITIES’ TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (I) THE AMOUNT PAID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE, OR (II) FIVE HUNDRED DOLLARS ($500).  EXCEPT FOR ANY ACTION BY THISTLE TECHNOLOGIES FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS.  THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

  10. GENERAL PROVISIONS

    1. Assignment.  Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Thistle Technologies may assign this Agreement without the written consent of the Customer as part of the conversion to a corporation or other corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

    2. Force Majeure.  Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.  The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

    3. Governing Law.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  The Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

    4. Modifications to this Agreement.  PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY THISTLE TECHNOLOGIES IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Thistle Technologies will make a new copy available at thistle.tech/mlsa.  Thistle Technologies will also update the “Last Updated” date at the top of the Agreement.  If Thistle Technologies make any material changes, Thistle Technologies will also send an e-mail to the e-mail address associated with the Customer’s Account.  Any changes to the Agreement will be effective thirty (30) days after posting (or providing to the Customer, whichever comes first) notice of such changes.  Thistle Technologies may require the Customer to provide consent to the updated Agreement in a specified manner before further use of the Account is permitted.  If the Customer does not agree to any change(s), the Customer must provide written notice to Thistle Technologies within such thirty (30) day period, and Thistle Technologies (at its option and as the Customer’s exclusive remedy) will either: (i) permit Customer to continue under the existing version of the Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect unless Customer opts not to renew Customer’s subscription), or (ii) allow Customer to terminate this Agreement and receive a pro-rata refund of any pre-paid Thistle Technologies Services subscription fees allocable to the terminated portion of the applicable Subscription Term.  Unless Customers provides notice of objection to change(s), Customer’s continued use constitutes acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.  

    5. Export Controls; Government Rights.  Customer agrees that Customer will not, and will ensure that its Authorized Users will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Thistle Technologies Product or any technical information about the Thistle Technologies Product, or utilize the Thistle Technologies Product to export any Customer Content, to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export.  Customer hereby represents and warrants that (a) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) Customer is not listed on any U.S. Government list of prohibited or restricted parties.  Customer agree to comply with export requirements in Customer’s jurisdiction when uploading Customer Content to Thistle Technologies, and Customer agrees not to upload any Customer Content that is: (i) subject to the United States Export Administration Regulations, 15 C.F.R. Parts 730-774 or to the International Traffic in Arms Regulations, 22 C.F.R. Parts 120-130; or (ii) that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software and source code, without first obtaining that authorization.  The Thistle Technologies Product is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction release, performance, display or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

    6. Notices.  All legal notices and other communications required or permitted under this Agreement shall be in writing, addressed to the applicable party at its address set forth in this Agreement, and shall be deemed effectively delivered: (i) upon personal delivery, (ii) upon delivery by a courier service as confirmed by written delivery confirmation, (iii) five (5) days after deposit in the mail, postage prepaid.  Thistle Technologies may also provide electronic notices to Customer by general notice through Customer’s Account or by email to Customer’s email address(es) on record.

    7. Miscellaneous.  This Agreement (together with the Orders) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter.  In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement will apply unless the Order expressly indicates that a provision of the Order should supersede contrary language in the Agreement.  No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Thistle Technologies to object to such terms.  Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof.  Except as set forth in Section 10.4, this Agreement may only be amended by a writing signed by both parties.  This Agreement may be executed in counterparts.  The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement.  Any required notice shall be given in writing by customary means with receipt confirmed.  Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto.  The relationship between the parties shall be that of independent contractors.  Thistle Technologies may use subcontractors.  Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.  No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.  If any provision of this Agreement is determined to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary for this Agreement to remain enforceable, and the Agreement will continue in full force and effect with such provision limited or eliminated, as applicable.  

COPYRIGHT POLICY

It is Thistle Technologies’ policy to terminate the account of any user who repeatedly infringes copyright upon prompt notification to Thistle Technologies by the copyright owner or the copyright owner’s legal agent.  Without limiting the foregoing, if you believe that your work has been copied and posted on the Thistle Technologies website or service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Thistle Technologies website or service of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.  Contact information for Thistle Technologies’ Copyright Agent for notice of claims of copyright infringement is as follows: Window Snyder, CEO, 1459 18th St #324 San Francisco, CA 94107.