360 Privacy, LLC
This Services Agreement (this “Agreement”) is made and entered into between 360 Privacy, LLC (“360 Privacy”), a Delaware limited liability company and the individual, corporation, or other entity that completes 360 Privacy’s Enrollment Form (“Enrollment Form”) or signs a Proposal for Service sent by a 360 Privacy employee or agent (“Proposal”). The Effective Date (“Effective Date”) of this contract shall be the date the Enrollment Form and Proposal are completed.
360 Privacy provides a personal data scanning and removal service for individuals and corporations that consists of use of its proprietary technology to search for personal information about its customers that has been posted to monitored websites, submission of requests for the removal of such personal information from such websites, and provision of one or more reports regarding the foregoing (the “Service”).
Customer desires to purchase the Service.
For good and valuable consideration, including the mutual covenants in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.
1. THE SERVICE.
1.1 Service. 360 Privacy offers various tier packages of the Service: 1) 360 Delete, 2) 360 Monitoring, and 3) 360 Concierge. Customer may elect any tier package of the Service and the selected tier shall be specified on the Customer’s order form. At an additional cost, Customer may additionally elect to have a representative from 360 Privacy (“360 Privacy Representative”) meet with Customer for an in-person or remote/virtual consultation on the Service. The 360 Monitoring and 360 Concierge packages include consultation services in the event of a security breach of Customer’s personal information: 1) 360 Monitoring includes a maximum of ten (10) hours of consultation per year from the Effective Date and 2) 360 Concierge includes a maximum of forty (40) hours of consultation per year from the Effective Date.
1.2 License. 360 Privacy will perform the Service as set forth in the tier package elected by Customer, which may include access to software or other technology to provide the Service (the “Technology”). 360 Privacy grants Customer a limited, non-exclusive, non-assignable and non-transferable license to use the Technology for the purpose of accessing the Services.
1.4 Authority. Customer acknowledges that provision of the Service involves 360 Privacy using a mixture of automated and manual means to discover and request the removal of Customer’s personal information from third party websites. Customer hereby appoints 360 Privacy as Customer’s agent with the authority necessary to provide the Service, including the right to request removal of Customer’s personal information from website operated by third parties, the right to create end user accounts in Customer’s name with such websites when reasonably necessary for the discovery or removal of Customer’s personal information and the right to create an e-mail account in Customer’s name for use in connection with the foregoing. For the avoidance of doubt, 360 Privacy has no authority to act on Customer’s behalf in any matter or manner in any way not expressly authorized under the foregoing.
1.5 Restrictions. Customer shall not, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the 360 Privacy Technology; (ii) modify, translate, or create derivative works based on any 360 Privacy Technology; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer Customer’s rights to receive the Service; (iv) use the Service for the benefit of any person or entity other than Customer; (v) impersonate any other person in connection with Customer’s registration for and use of the Service; (vi) remove any proprietary notices from any reports or content Customer receives through the Service; or (vii) publish or disclose to third parties any evaluation of the Service without 360 Privacy’s prior written consent.
1.6 Acknowledgement. 360 Privacy may provide guidelines on and assist Customer with recommended device security settings. Customer agrees to provide 360 Privacy with reasonable and timely access to Customer’s residence, equipment, assistance, cooperation, data, information and materials for performance of the Service. Customer acknowledges that use of the Internet is not risk-free, and no cybersecurity tool is able to completely protect Customer from all threats, malware, or other cybercrimes at all times. 360 Privacy is not liable for any threatened or actual breach of Customer’s personal information.
2. FEES AND PAYMENT.
2.1 Subscription Fees. Customer will pay the fees due for the Service as indicated on 360 Privacy’s invoice (“Subscription Fees”). Subscription Fees are due immediately via credit card or bank transfer through a third-party payment processor. Customer’s payment and related payment information is managed through such third-party payment processor, and 360 Privacy bears no responsibility for the third-party payment processor’s use of Customer’s payment information. Customer represents and warrants that it has the legal right to use the payment method submitted. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction. All amounts paid to 360 Privacy are non-refundable except as expressly set forth herein. Customer is responsible for any payment processing fees incurred as the result of the reversal of charges through the third-party payment processor.
2.2 Taxes. Customer shall pay all applicable sales, use and value-added taxes (except for taxes imposed on 360 Privacy’s net income) with respect to the Service.
2.3 Free Account. To the extent a subscription to the Service is made available to Customer at no charge, 360 Privacy reserves the right, at any time and without prior notice, to discontinue provision of such free subscription and require purchase of a paid subscription for further receipt of the Service.
3. NO WARRANTIES; DISCLAIMERS.
The Service is provided “AS IS” without any warranties, express or implied. RECEIPT OF AND RELIANCE ON THE SERVICE IS AT CUSTOMER’S OWN RISK. 360 PRIVACY DOES NOT MAKE, AND TO THE FULLEST EXTENT PROVIDED BY LAW, HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, AND QUALITY, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. 360 PRIVACY FURTHER DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONALITY OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE, NOR DOES 360 PRIVACY MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS CUSTOMER WILL ACHIEVE FROM RECEIVING THE SERVICE, INCLUDING ANY WARRANTY THAT THIRD PARTY WEBSITES WILL HONOR REQUESTS FOR CUSTOMER’S PERSONAL INFORMATION TO BE REMOVED. WITHOUT LIMITATION, THE SERVICE IS NOT INTENDED FOR USE IN MITIGATING OR REMOVING ANY RISK OF BODILY HARM, PROPERTY DAMAGE OR OTHER ACTUAL OR PROSPECTIVE LOSS OR DAMAGE OF ANY KIND.
Customer shall defend 360 Privacy and its affiliates, licensors, data providers, successors and assigns (and its and their officers, directors, employees, contractors and agents) (collectively “360 Privacy Indemnified Parties”) from and against any and all claims, actions, demands, and proceedings (each a “Claim”) and indemnify and hold the 360 Privacy Indemnified Parties harmless from losses, liabilities, damages, settlements, expenses, fines, penalties, judgments and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to: (a) Customer’s receipt of the Service (other than claims arising from 360 Privacy’s breach of this Agreement, gross negligence or willful misconduct); (b) any breach or alleged breach by Customer of any of Customer’s covenants, representations or warranties set forth in this Agreement; (c) Customer’s breach of any applicable law or regulation in connection with Customer’s use of the Service or Technology; or (d) any alleged infringement or misappropriation of any third-party intellectual property rights based on any modifications to the Technology made by Customer or Customer’s use of the Service or Technology other than as directed by 360 Privacy. Customer shall not settle any Claim for which defense is sought under this Section 4 without the prior written approval of 360 Privacy, which approval shall not be unreasonably withheld or delayed.
5. PROPRIETARY RIGHTS.
5.1 Ownership. Customer acknowledges that the Technology underlying the Service and all reports and other content made available in connection therewith, and all related intellectual property rights, are the sole and exclusive property of 360 Privacy and its licensors. Customer retains rights, title, and ownership of all its Data. Each party retains all other rights not expressly granted in this Agreement.
5.2 Feedback License. Customer hereby grants to 360 Privacy, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under Customer’s intellectual property rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Service that Customer may provide from time to time, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in relation to the Service or any other products or services. Feedback is provided “as is” without warranty of any kind.
6.1 Confidential Information. Customer agrees to maintain the confidentiality of all information supplied to it by or on behalf of 360 Privacy, that is non-public, that would be reasonably understood by Customer to be confidential, or marked or otherwise identified as confidential or proprietary at the time of disclosure, including without limitation all information concerning 360 Privacy’s past, present, future or potential employees, clients, customers, organization, services, software, know how, pricing, finances, strategies, plans, systems, software and products, and any logins or credentials provided hereunder (“Confidential Information”). Customer shall use reasonable measure to protect the Confidential Information and shall not disclose Confidential Information to any unauthorized third party. In the event of an unauthorized disclosure, Customer shall notify 360 Privacy immediately.
6.2 Exceptions to Confidentiality. Information shall not be deemed Confidential Information to the extent, but only to the extent, that such information is: (a) already rightfully known to Customer free of any restriction at the time it is obtained from 360 Privacy; (b) subsequently rightfully learned from an independent third party free of any restriction imposed by 360 Privacy and without breach of this Agreement; (c) is or becomes publicly available through no wrongful act of Customer; or (d) is independently developed by Customer without reference to any Confidential Information of the other as evidenced by written records.
6.3 Disclosures Required by Law. Notwithstanding anything to the contrary above, Confidential Information may be disclosed by Customer to the extent, but only to the extent, required by law, regulation, government agency or court order, subpoena, or civil investigative demand; provided, however, that Customer gives 360 Privacy prompt written notice of the disclosure obligation and cooperates with 360 Privacy, at 360 Privacy’s expense, in seeking to limit the disclosure to the greatest extent possible consistent with Customer’s legal obligations.
During the Term of this Agreement, 360 Privacy shall carry and maintain insurance coverage as follows:
a. Commercial General Liability Insurance, with a combined single limit for bodily injury and property damage liability of at least $2,000,000 per occurrence and in the aggregate;
b. Worker’s Compensation as required by statute;
c. Automobile Liability (owned, non-owned and hired) with a combined single limit of at least $1,000,000;
d. Errors and omissions insurance, including first and third party cyber-liability, privacy response, hacking/virus, and data breach, with a limit of liability not less than $5,000,000
Upon request, 360 Privacy shall provide Customer with certificates of insurance evidencing such coverage.
8. Limitation of Liability.
8.1 Disclaimer. 360 PRIVACY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, EVEN IF 360 PRIVACY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 360 PRIVACY WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. 360 PRIVACY SHALL NOT BE LIABLE FOR ANY DEATH, PERSONAL INJURY OR PROPERTY DAMAGE THAT OCCURS WHILE 360 PRIVACY OR ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES ARE ON CUSTOMER’S PREMISES UNLESS SUCH DAMAGE ARISES FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PARTY OF 360 PRIVACY OR ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES.
8.2 Limits on Liability. 360 PRIVACY SHALL NOT BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE IN EXCESS OF (1) THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID BY CUSTOMER TO 360 PRIVACY UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PRORATED PERIOD PRECEDING THE DATE THE CLAIM AROSE, MINUS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY 360 PRIVACY TO CUSTOMER IN SATISFACTION OF ANY LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND (2) TEN ($10) U.S. DOLLARS, WHICHEVER IS GREATER. CUSTOMER RELEASES 360 PRIVACY AND ITS SERVICE PROVIDERS FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE SERVICE AND THIS AGREEMENT IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 8.2.
8.3 Third Party Liability. To the maximum extent allowable under applicable law, IN NO EVENT SHALL 360 PRIVACY’S LICENSORS, DATA PROVIDERS or SERVICE PROVIDERS BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE, AND INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, EVEN IF they have BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.4 Essential Purpose. Customer acknowledges that the terms in this Section 8 are an essential basis of the bargain described in this Agreement and that, were 360 Privacy to assume any further liability, the fees payable for the Service would out of necessity, be set much higher. THE LIMITATIONS IN THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
9. TERM AND TERMINATION.
9.1 Term. This Agreement is effective as of the Effective Date and shall continue for a term of one year (“Term”). Customer may opt to renew after the Term for subsequent successive renewal periods of one year each upon the anniversary date of the Effective Date of this Agreement, subject to the payment of the then current Subscription Fees for the Service.
9.2 Termination. 360 Privacy reserves the right to terminate this Agreement for any or no reason in its sole discretion at any time; provided that, in the event of such termination without cause, 360 Privacy will provide a pro-rata refund to Customer of any pre-paid Subscription Fees for the then-current Term. Further, either party may terminate this Agreement (and all Term(s)) upon written notice to the other party in the event the other party (a) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree.
9.3 Effects of Termination. Upon expiration or termination of this Agreement, (i) 360 Privacy shall cease providing the Service; and (ii) all fees and other amounts owed under this Agreement shall be immediately due and payable by Customer. 360 Privacy shall have no obligation to maintain or provide Customer Data and may thereafter unless legally prohibited, delete Customer Data in its systems or otherwise in its possession or under its control.
9.4 Survival. This Section 9.4 and Sections 2. (Fees and Payment), 3 (No Warranties; Disclaimers), 4. (Indemnification), 5. (Proprietary Rights), 6. (Confidentiality), 8 (Limitation of Liability), 9.3 (Effects of Termination), 10 (Agreement to Arbitrate) and 11 (Miscellaneous) shall survive any termination or expiration of this Agreement.
10. AGREEMENT TO ARBITRATE.
10.3 Opt Out. Customer may opt out of this agreement to arbitrate in this Section 10 If Customer chooses to do so, neither Customer nor 360 Privacy can require the other to participate in an arbitration proceeding. To opt out, Customer must notify 360 Privacy in writing within thirty (30) days of the date that Customer first became subject to this arbitration provision. The opt out notice must state that Customer does not agree to the agreement to arbitrate and must include Customer’s name, address, phone number, and a clear statement that Customer wants to opt out of this agreement to arbitrate. Customer must sign the opt out notice for it to be effective. This procedure is the only way Customer can opt out of the agreement to arbitrate. Customer must use this address to opt out: 360 Privacy Inc., ATTN: Arbitration Opt-out, PO Box 3587, Brentwood, TN 37206.
10.4 Survival. This Section 10 will survive the termination of Customer’s relationship with 360 Privacy.
11.1 Notices. Customer hereby consents to electronic delivery for all notices. All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally or electronically, (b) on the first business day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
(i) if to 360 Privacy, to:
360 Privacy, LLC
Attn: Elizabeth Jackson
PO Box 3587
Brentwood, TN 37024
Phone: (812) 499-7999
(ii) if to Customer, to:
Address provided on Enrollment Form
11.2 Amendment; Waiver. This Agreement may be amended or supplemented only by an instrument in writing specifically designated as an amendment to this Agreement that is signed by duly authorized representatives of both parties. No term or provision hereof shall 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. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
11.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
11.4 Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the State of Tennessee as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles which would apply the laws of any other state or country. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Subject in all respects to Section 10, for any disputes arising out of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of Tennessee.
11.5 Attorneys’ Fees. In any action to enforce this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
11.6 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; epidemic, pandemic, unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, act of terror, insurrection, riot, act of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the party whose performance is to be excused, and whether or not foreseeable as of the Effective Date.
11.7 Assignment. Customer may not assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without 360 Privacy’s prior written consent. 360 Privacy may assign its rights or obligations under this Agreement without Customer’s prior written consent. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
11.8 Relationship of the Parties. 360 Privacy is an independent contractor to Customer. There is no relationship of partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
11.9 Construction of Agreement. Should any questions of construction or interpretation of this Agreement arise, then the parties agree that no presumption shall be applied against the party drafting this Agreement or any portion thereof and that the language of this Agreement shall, in all cases, be construed as a whole according to its fair meaning and not strictly for or against either party.
11.10 Counterparts. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all of which together will constitute one in the same document.
11.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
Version: April 19, 2022