SIGMA™ Terms of Service
last updated 05/10/2022
Subject to the terms and conditions of this agreement (this “Agreement”), we at Orbital Sidekick, Inc., a Delaware corporation (“we”), provide subscriptions to:
(1) our SIGMA™ web-based platform (the “Platform”), that is used to access and review reports and analyses that we’ve prepared for you (“Reports and Analyses”);
(2) a website (the “Site,” and, together with the Platform, the “Software”) through which you may access and use the Platform; and
(3) the Services described in further detail below
1. Acceptance. By executing an Order with us, you also accept the terms of this Agreement and agree you are legally bound by its terms. The individual registering to use the Platform on your behalf represents and warrants to us that such individual is fully and duly authorized to agree to be bound by this Agreement on your behalf. If you do not agree to this Agreement, do not register to use the Platform or otherwise access or use any Software.
2. Right to Access and Restrictions.
a. Platform Authorization. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, we authorize you and your Affiliates, during the Term, and on a non-exclusive and non-transferable (except as described in Section 13.e) basis, to access and use the Platform through the Site, including any Reports and Analyses that we provide to you through the Platform, in each case provided that such access and use is (i) by and through your Authorized Users only, (ii) solely as (and in the form) in which we have provided the Platform, (iii) solely for the Permitted Use, and (iv) strictly in accordance with this Agreement and the User Guide. This authorization also permits you and your Affiliates to access and use the User Guide during the Term in support of your permitted uses of the Software.
b. Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Software. You must not, and you must not permit any other person or entity to, access or use the Software except as we’ve specifically allowed in this Agreement and, in the case of any Third-Party Materials (as defined below) we provide with or as part of the Software, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, except as we’ve specifically allowed in this Agreement, you, your Affiliates and your Authorized Users must not do any of the following:
i. copy, modify, adapt, translate or create derivative works or improvements of the Software or any portion thereof;
ii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software to any other person or entity for any reason, including by making the Software available through any time-sharing, service bureau or software as a service arrangement;
iii. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Software;
iv. input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or that contain, transmit or activate any Harmful Code;
v. bypass, breach or disable any security device, copy control, digital rights management tool or other protection used by the Software;
vi. remove any proprietary notices from the Software;
vii. share an Authorized User’s access credentials with any person or permit use of an Authorized User’s access credentials by any person, other than the Authorized User with whom the access credentials are associated;
viii. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Software, (B) the server on which the Software are stored, (C) any server, computer or database connected to the Software, or (D) our ability to provide services to any other person or entity;
ix. access or use the Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
x. access or use the Software for purposes of (A) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Software, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Software; or
xi. knowingly aid or assist any Affiliate, Authorized User or other person or entity in taking any of the actions prohibited by this Section 2.b.
c. Responsibility for Affiliates and Authorized Users. You will ensure your Affiliates’ and Authorized Users’ compliance with this Agreement and be responsible and liable to us for any act or omission of an Affiliate or Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) that would be a breach or violation of this Agreement had you performed the act or omission yourself.
3. Our Services.
a. Services – Generally. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, we will provide to you the following services (the “Services”) during the Term: (i) the hosting, management and back-end operation of the Platform to make the same available for remote electronic access and use by you, your Affiliates and your Authorized Users through the Site in accordance with the authorizations granted above; (ii) generating and delivering the Reports and Analyses as described in your Order; (iii) the Support Services described in Section 4.a below; and (iv) any other Services we expressly agree to provide in your Order.
b. Changes to the Software. We may make any changes to the Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason, from time to time at our discretion. Such changes may include upgrades, bug fixes, patches, error corrections, modifications, enhancements, improvements and/or new features (collectively, “Updates”). All Updates shall be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto. If we make a change to the Software that has a material adverse effect on your operations, then you may notify us in writing of the material adverse effect and you may, immediately upon written notice to us, terminate this Agreement if we do not cure this condition within 30 days following receipt of your notice.
c. Subcontractors. You understand and agree that we may, in our discretion, engage subcontractors to aid us in providing the Software and performing our Services under this Agreement, but we will remain liable to you for any act or omission by such subcontractors that would be a breach or violation of this Agreement. For example, we may use Amazon Web Services, Microsoft Azure, Google Cloud Platform and/or such other reputable hosting provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies (the “Hosting Services Provider”) for cloud-based infrastructure and hosting and storage services for the Platform, and such Hosting Services Provider will host and store certain portions of Your Data that is processed through the Platform. You hereby specifically approve and consent to our use of a Hosting Services Provider in the manner described. Notwithstanding anything to the contrary in this Agreement, you further agree that we cannot guarantee or ensure the performance of any Hosting Services Provider to the terms of this Agreement, and remediation of a breach by a Hosting Services Provider is limited to the remedies specified the Hosting Services Provider’s standard service agreement.
d. Suspension of Software Access. We may suspend performance of our Services and/or suspend or deny access to or use of all or any part of the Software to one or more of your Authorized Users, without any liability to you or others, if (i) we’re required to do so by law or court order; or (ii) you have, your Affiliate has or your Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) has (A) accessed or used our Services or the Software in violation of this Agreement, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or the Software, or (C) otherwise failed to comply with this Agreement and have failed to cure such breach within 10 days after we provide written notice to you. Unless we have exercised our right to terminate this Agreement pursuant to Section 9.b, we will promptly restore access to the Software as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 9.b or any other rights or remedies under this Agreement, at law or in equity.
4. Support Services and Uptime.
a. Support Services. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, during the Term we will provide customer support services to you and your Authorized Users via e-mail and telephone during our standard support hours (9:00 a.m. to 5:00 p.m., Pacific time, Monday through Friday, but excluding federal holidays) (“Support Services”). Support Services include the following:
i. access to knowledge-base content, FAQs, training videos and community forums hosted and made available generally to customers by us from time to time through our learning management system;
ii. technical and operational assistance for the use of the Software, including responses to general, short-duration questions about the documented features and functionality of the Software and usage thereof, management of user accounts for Authorized Users, assistance with interpretation and use of the User Guide, and assistance with interpretation of error or warning messages appearing in platforms or alerts, in each case to the extent such inquiries and requests cannot be resolved by the User Contact as described in Section 4.b below;
iii. attempts to respond and resolve any Availability failure or other reproducible failure of the Software to perform in accordance with the User Guide (each, an “Error”), in each case in accordance with Section 4.c below;
iv. case management to help track the status of any failures reported to us; and
v. periodically providing to you all Updates to the Software that we make generally available to all of our customers free of additional charge.
However, Support Services do not include (1) support for software or hardware that is not part of the Software (including support for any part of your equipment, products or technology infrastructure), (2) on-site dispatch of our personnel, (3) formal, comprehensive training of Authorized Users on use of the Software, (4) on-site or remote support to configure or customize the Software for you, or (5) performance of any other professional, implementation, configuration, consulting or advisory services (provided that items (3) through (5) may be separately provided Services to the extent expressly agreed to in your Order). You must provide all information and assistance that we reasonably request in connection with providing such Support Services. We reserve the right to charge you at an hourly rate (on a time-and-materials basis) for support services provided (x) outside of our normal support hours, or (y) in connection with a request we reasonably determine is outside the scope of the Support Services described above.
b. User Contact for First-Tier Support. You will identify a system administrator or other employee (the “User Contact”) trained in use of the Software who will provide first level technical support to your Authorized Users. First level technical support involves assisting Authorized Users with help concerning Software usage, understanding Software functionality, and verifying Software Errors reported by Authorization Users.
c. Error Response Procedures. In the event of any Error in the Software reported by you to us in writing, the Error will be assigned a Severity Level by us and we will address the Error as follows:
i. Severity Level 1 means the Software is completely inoperable or inaccessible, there is no workaround and first level technical support could not resolve the problem. We will assign appropriate resources to resolve the Error, will use commercially reasonable efforts to resolve the Error as soon as possible, with a target resolution time of resolving the Error within four (4) standard support hours, and if needed will continue working during standard support hours until the Error is resolved.
ii. Severity Level 2 means that an Authorized User could not access or operate a critical portion of the Software’s functionality, there is no workaround and first level technical support could not resolve the problem. We will assign appropriate resources to resolve the Error, will use commercially reasonable efforts to resolve the Error as soon as practicable, with a target resolution time of resolving the Error within one (1) business day, and if needed will continue working during standard support hours until the Error is resolved.
iii. Severity Level 3 refers to all other Errors not included in Severity Level 1 or Severity Level 2 or Errors for which a workaround is available. We will use reasonable efforts to resolve such Errors in the next Update.
d. Platform Availability.
i. Provided that you, your Affiliates and your Authorized Users comply with this Agreement, during the Term we will make the Platform Available for access and use by you, your Affiliates and your Authorized Users over the Internet through the Site 24 hours a day, seven days a week, with ninety-nine and one-half percent (99.5%) Availability (calculated on a minutes per month basis), excluding un-Availability as a result of any of the Exceptions described below (the “Availability Requirement”).
ii. For purposes of this Agreement, the Platform is “Available” if you are able to log in to the Platform and access Your Data. For purposes of calculating the Availability Requirement, the following are “Exceptions,” and the Platform will not be considered un-Available in connection with any failure to meet the Availability Requirement or impaired ability of you, your Affiliates or your Authorized Users to access or use the Platform that is due, in whole or in part, to: (A) access to or use of the Software not in accordance with this Agreement and the User Guide; (B) your, your Affiliate’s or your Authorized User’s Internet connectivity; (C) any Force Majeure Event; (D) any failure, interruption, outage or other problem with any software, hardware, system, network, or other technology infrastructure that was not provided by us or that is not part of our systems (including, for the avoidance of doubt, any failure, interruption, outage or other problem with the Hosting Services Provider or any Third-Party Materials); (E) scheduled downtime for routine maintenance of the Software (not to exceed ten hours per month) that occurs between 8:00 pm and 4:00 am Pacific Time on weekdays and between 9:00 am and 5:00 pm Pacific Time on Saturdays and Sundays; or (F) periods of time in which the parties have mutually agreed that unavailability is necessary (such as time for implementation of changes in the Software requested by you).
iii. If we fail to meet the Availability Requirement described above, we will upon your written request credit your account in an amount equal to one-third (⅓) of the Pro-Rated Monthly Subscription Fee (as defined below) paid to us for each month in which the Platform was Available less than 99.5% of the time but more than 90% of the time, or two-thirds (⅔) of the Pro-Rated Monthly Subscription Fee paid to us for each month in which the Platform was Available less than 90% of the time, provided in each case that you have submitted to us a written request for credit within ninety (90) days of the end of the calendar month in which the Availability failure occurred. The “Pro-Rated Monthly Subscription Fee” shall mean one-twelfth (1/12th) of the subscription fee paid to us for the Platform on an annualized basis over the twelve months immediately prior to the calendar month in which the Availability failure occurred. In addition, if we fail to meet the Availability Requirement in three consecutive months or in four or more months in a rolling twelve-month period, then you may terminate this Agreement upon written notice to us given within ninety (90) days of the end of the calendar month in which the third such consecutive Availability failure occurred or the fourth such Availability failure in a rolling twelve-month period occurred, as applicable, and receive a Refund of Fees (as defined below). THE REMEDIES SET FORTH IN THIS SECTION 4.d.iii ARE YOUR EXCLUSIVE REMEDIES, AND OUR SOLE OBLIGATION AND LIABILITY TO YOU, FOR ANY FAILURE TO MEET THE ABOVE-DESCRIBED AVAILABILITY REQUIREMENT OR OTHER INTERRUPTION OR UNAVAILABILITY OF THE SOFTWARE DURING THE TERM.
5. Confidentiality.
a. General. In connection with receiving or providing the Software and Services during the Term, each party (each, a “Discloser”) may disclose to the other party (the “Recipient”) Confidential Information. During the Term and thereafter the Recipient will not without the Discloser’s written consent disclose Discloser’s Confidential Information to any third party (other than our subcontractors as permitted in Section 3.c above) nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. Subject to Section 5.b, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Discloser considers confidential or proprietary, including information consisting of or relating to the Discloser’s technology (including source code), trade secrets, know-how, business operations, plans, strategies, customers, pricing information, and information with respect to which the Discloser has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing: (a) all non-public information related to Software and the features, functionality and performance thereof and Software are our Confidential Information; (b) the terms and existence of this Agreement and your Order are Confidential Information of both of us; and (c) the customer-specific content of the Reports and Analyses and Your Data are your Confidential Information.
b. Exclusions and Exceptions. Confidential Information does not include information that the Recipient can demonstrate by written or other documentary records: (a) was rightfully known to the Recipient without restriction on use or disclosure prior to such information being disclosed or made available to the Recipient in connection with this Agreement; (b) was or becomes generally known by the public other than by noncompliance with this Agreement by the Recipient or any of its or its Affiliates’ employees, officers, directors, agents, independent contractors, subcontractors and legal advisors (“Representatives”); (c) was or is received by the Recipient on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Recipient can demonstrate by written or other documentary records was or is independently developed by the Recipient without reference to or use of any Confidential Information.
c. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Recipient shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted under the terms and conditions of Section 5.d, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Recipient’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Recipient’s obligations under this Section 5; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 5; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its confidential information and in no event less than a reasonable degree of care; (d) promptly notify the Discloser of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 5.
d. Compelled Disclosures. If the Recipient or any of its Representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law or the valid order of a court or governmental agency, the Recipient shall: (a) promptly, and prior to such disclosure, notify the Discloser in writing of such requirement so that the Discloser can seek a protective order or other remedy or waive its rights under Section 5.c; and (b) provide reasonable assistance to the Discloser, at the Discloser’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Discloser waives compliance or, after providing the notice and assistance required under this Section 5.d, the Recipient remains required by law or the valid order of a court or governmental agency to disclose any Confidential Information, the Recipient shall disclose only that portion of the Confidential Information that the Recipient is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
6. Privacy.
a. Data Privacy. We will store, use and otherwise process any of Your Data that constitutes “personal information,” “personal data” or “personally identifiable information” as defined in applicable laws (collectively “Personal Information”) in all material respects in accordance with all applicable laws relating to the privacy and protection of Personal Information (“Data Privacy Laws”), including but not limited to the California Consumer Privacy Act of 2018 and its implementing regulations (as amended, restated or supplemented from time to time, “CCPA”). We will not access, use, handle, maintain, process, dispose of, or disclose Personal Information other than as permitted or required under this Agreement or Data Privacy Laws. We will limit dissemination of Personal Information to our employees and subcontractors who (i) need to know the information to enable us to perform our obligations or exercise our rights under this Agreement, and (ii) are bound by confidentiality obligations substantially equivalent to those provided for in this Agreement. We will cooperate with you as may be reasonably required to enable you to comply with Data Privacy Laws, including by reasonably assisting you in complying with individuals’ rights in regards to their Personal Information under Data Privacy Laws. In furtherance of the foregoing, based on the data that you will process using the Software or otherwise provide to us, if and to the extent Data Privacy Laws require additional clauses to be executed by us beyond those set forth in this Agreement, then you must notify us in writing of such requirement and we will in good faith review, negotiate and consider adding such clauses as an addendum to this Agreement. In the absence of such notice you represent and warrant that no additional clauses are required.
b. California Consumer Privacy Act (CCPA) Compliance. You and we both agree that you are a business and we are a service provider under the CCPA. During the Term and thereafter, we will: (i) not retain, use or disclose personal information for any purpose (including any commercial purpose) other than for the specific purpose of providing the Software and performing the Services contemplated by this Agreement; (ii) not retain, use or disclose personal information outside of the direct business relationship between you and us; and (iii) not sell the personal information to any third parties. We certify that we understand and will comply with the restrictions, duties and obligations set forth in this Section 6.b. In the event that any consumer makes a request directly to us with respect to exercising its privacy rights under the CCPA, we will promptly notify you and provide you with a copy of the consumer request, inform the consumer that the consumer’s request cannot be acted upon because the request has been sent to a service provider, provide you with a copy of such response, and reasonably cooperate with you in your efforts to respond and act on the consumer’s request in accordance with the requirements of the CCPA, in each case unless legally prohibited from doing so. As permitted and provided by CCPA, nothing in this Section 6.b will prohibit us from retaining, using or disclosing the personal information in connection with: (z) retaining or employing another service provider as a subcontractor, provided the subcontractor meets the requirements for a service provider under the CCPA; (y) our internal use to build or improve the quality of our Software or Services, provided that the use does not include building or modifying household or consumer profiles for use in providing services to another business, or correcting or augmenting data acquired from another source; (x) detecting data security incidents, or protecting against fraudulent or illegal activity; (w) complying with applicable laws; (v) complying with a civil, criminal or regulatory inquiry, investigation, subpoena, or summons by governmental authorities; (u) cooperating with law enforcement agencies concerning conduct or activity that you, we or a third party reasonably and in good faith believes may violate applicable law; or (t) exercising or defending legal claims. For the purposes of this Section 6.b, the terms “business,” “commercial purpose,” “consumer,” “personal information,” “processing,” “sell” and “service provider” shall have the meanings given to such terms in CCPA.
c. No Sensitive Data. You understand and accept that the Software and our other systems and networks are not designed or intended for the storage, processing or protection of Sensitive Data and may not provide adequate or legally-required security or other protections for Sensitive Data. Therefore, notwithstanding anything to the contrary in this Agreement, we will have no responsibility or liability for any Sensitive Data that you, your Affiliate, your Authorized Users or any other employee, contractor or agent under your control or direction or acting on your behalf may voluntarily choose to input into the Software or otherwise provide to us in connection with the Services or our performance under this Agreement. For the purposes of this Agreement, “Sensitive Data” means the following: “protected health information” within the meaning of the Health Insurance Portability and Accountability Act; credit card, debit card or other payment card information; financial account information of any kind; identity numbers issued by any government agency such as driver’s license number, Social Security number or passport number; the results of background checks; passwords or other access credentials that would or could be used to access any personal accounts (other than passwords and/or access credentials used by Authorized Users to log in to and access the Software which shall not be excluded as a result of this provision); biometric information or genetic data.
7. Fees and Payment.
a. Fees. You will pay to us the fees and charges described in your Order (the “Fees”) in accordance with the Order and this Section 7. We will notify you of any pending Fee increase at least 60 days prior to the commencement of the upcoming renewal. All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement or in your Order) all Fees once paid are non-refundable.
b. Taxes. Our Fees do not include taxes and similar assessments. We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
c. Payment; Late Payment. You will make all payments in US dollars. Invoiced amounts are due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information. All amounts not paid in full by the applicable due date shall be subject to a late payment charge equal to 1.5% per month (or the maximum rate permitted under applicable law, if less).
8. Ownership and Intellectual Property Rights.
a. Orbital Sidekick Intellectual Property. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to the Software (for the avoidance of doubt excluding any of Your Data, Reports and Analyses and Confidential Information), including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, Updates, configurations, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods, concepts, templates and format underlying or embedded in the foregoing and all related intellectual property rights (collectively, the “OS IP”). For the avoidance of doubt, we are not granting you any right, license or authorization with respect to the OS IP, except as we’ve specifically provided in Section 2 above. We and the respective rights holders in any Third-Party Materials reserve all other rights in and to the OS IP. Additionally, for the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, we are not granting you any right, license or authorization with respect to (i) our proprietary Spectral Intelligence™ hyperspectral imagery technology, our satellites or any other equipment or technologies used to generate the images and data upon which the Reports and Analyses are based, (ii) any of the raw images or raw hyperspectral data used to generate the Reports and Analyses displayed in the Platform, or (iii) any intellectual property rights in or related to any of the foregoing (collectively, the “OS Data and Technology”). As between you and us, we reserve all rights in and to the OS Data and Technology.
b. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in this Section 8.b. You grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to: (i) perform the Services and provide the Software during the Term; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement.
c. Your Reports and Analyses. As between you and us, subject to our continued ownership of the general format, techniques, methodologies and templates used to produce the Reports and Analyses and the raw images and raw hyperspectral data used to generate the Reports and Analyses (which are and shall remain OS IP and OS Data and Technology respectively as described in Section 8.a above), and subject to your ongoing attribution obligations set forth in Section 8.e, you shall exclusively own the copyright in the Reports and Analyses, and the Reports and Analyses shall be, to the extent possible, “works made for hire” as that term is understood under the copyright laws of the United States (17 USC Section 101 et. seq.); and to the extent the Reports and Analyses are determined not to constitute “works made for hire” as a matter of law, we hereby irrevocably transfer, assign, and convey to you all right, title and interest in and to the copyright in the Reports and Analyses and the copies thereof made available to you through the Platform.
d. Publicity Rights. During the Term, you agree that we may, without separate written consent from you, include your name, trademarks and logos on our website and in other sales and marketing materials in order to factually identify you as a current customer.
e. Attribution. The Software is configured such that all downloaded, exported and/or printed copies of the Reports and Analyses will display conspicuously and in a reasonable manner our name, trademarks and/or logos as indicators of the source of the Reports and Analyses or otherwise conspicuously and in a reasonable manner provide attribution to us as the source of the Reports and Analyses (the “OS Attribution”). Unless otherwise expressly agreed by both you and us in an Order or otherwise in writing, during the Term and thereafter, if you reproduce, publicly display, publicly perform, distribute, disseminate, communicate or otherwise make available to others (collectively, “Share”) the Reports and Analyses (including in modified form), then (i) you will retain the OS Attribution in all Shared copies of the Reports and Analyses, and (ii) indicate and make clear to others the extent to which you modified the Reports and Analyses. You may satisfy the requirements of the preceding sentence in any reasonable manner based on the medium, means and context in which you Share the Reports and Analyses, including without limitation by providing a URL or hyperlink to our website homepage. For the avoidance of doubt, you may only use our name, trademarks, logos and other elements of the OS Attribution for the sole purpose of providing attribution to us as the source of the Reports and Analyses as described above, and you may not implicitly or explicitly assert or imply any connection with, sponsorship of or endorsement by us of you, of any of your uses of the Reports and Analyses or of any of your business or other activities without our separate, express prior written permission.
f. Third-Party Materials. Notwithstanding any contrary term in this Agreement, the Software may contain or be provided with open source software components and/or other software owned by third parties (“Third-Party Materials”), each of which has its own copyright and its own applicable license terms and conditions. You and your Affiliates will have the right to directly license any such open source software from the owner thereof, and will be licensed the right hereunder to use any other third-party software, in each case under the terms and subject to the conditions of the applicable open source license or other license terms and conditions and/or copyright notices that can be found in the information provided by us in the User Guide or in any “Third-Party Licenses ReadMe” file or similar file located in the installation directory for the applicable software (rather than the terms of this Agreement).
9. Term and Termination.
a. Term; Renewal. The initial term of this Agreement commences on the first date you accept this Agreement in accordance with Section 1 above and continues for the period specified in your Order as the “Initial Term” (the “Initial Term”). Thereafter, unless otherwise specified in your Order, this Agreement will automatically renew for successive periods equal to the length of the “Renewal Period” specified in the Order (each, a “Renewal Period”), unless one party provides written notice to the other of its intent not to renew at least 30 days prior to the end of the then-current Initial Term or Renewal Period. The Initial Term and each Renewal Period (if any) are referred to in this Agreement collectively as the “Term.”
b. Termination. In addition to any other termination rights described in this Agreement, this Agreement may be terminated prior to the end of the Term at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (i) remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach, or (ii) is the second (or higher ordinal) breach of the limitations and restrictions in Section 2.b.
c. Effect of Termination. The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by one party to the other will immediately terminate, (ii) we may disable your, your Affiliates’ and your Authorized Users’ access to the Software, and (iii) we each will cease all use of the other party’s Confidential Information and (at such other party’s request) promptly destroy or return all of the other party’s Confidential Information.
d. Surviving Terms. Sections 5 (Confidentiality), 8 (Intellectual Property Rights), 9.c (Effect of Termination), 11 (Indemnification), 12 (Limitations of Liability), 13 (Miscellaneous), 14 (Definitions) and this Section 9.d will survive any expiration or termination of this Agreement.
10. Representations and Warranties.
a. By You Regarding Your Data. You represent and warrant that: (i) your, your Affiliates’ and your Authorized Users’ collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software as contemplated in this Agreement) and your Confidential Information is consistent with your own privacy policy and your license agreements and other agreements with third parties; (ii) you either own, or have all rights, permissions and consents that are necessary to store, use and process, and to permit us, our subcontractors and the Software to store, use and otherwise process as contemplated in this Agreement, all of Your Data and your Confidential Information; (iii) our and our subcontractors’ access to and storage, use and other processing of Your Data and your Confidential Information (including all personal data included in Your Data and your Confidential Information) as contemplated by this Agreement does not and will not violate any applicable law, rule or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right or other right of any third party. You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you, your Affiliate, your Authorized Users or any other employee, contractor or agent under your control or direction or acting on your behalf have breached any representation or warranty in this Section a.
b. By Us Regarding Our Services. We warrant that we will perform all Services in a professional and workmanlike manner, using adequate resources and appropriately qualified personnel, and consistent with generally-accepted standards of quality in our industry. If we breach this warranty, we will promptly re-perform the non-conforming Services at no additional cost to you.
c. By Us Regarding Our Software. We warrant that the Software will at all times during the Term substantially conform in all material respects to its User Guide and the written specifications expressly set forth by you and us in your Order. However, the warranty in this Section does not apply to any non-conformance resulting from: (x) use of the Software in a manner inconsistent with this Agreement or its User Guide, (y) the operation of or access to your, your Affiliate’s or a third party’s system or network, or (z) Your Data or any Third-Party Materials.
d. Remedy for Breach of Software Warranty. If we breach the warranty set forth in Section 10.c, we will, at our sole option and expense, take any of the following steps to remedy such breach: (i) modify, fix or correct the Software to remedy such non-conformity; (ii) replace the non-conforming portion of the Software, as applicable, with functionally equivalent software; or (iii) if the remedies in clauses (i) and (ii) are not feasible by commercially reasonable standards, terminate this Agreement and promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination (a “Refund of Fees”). If we do not cure a warranty breach or terminate this Agreement as permitted by the immediately preceding sentence within 30 days after our receipt of written notice of such breach, you will have the right to terminate this Agreement and we will promptly provide to you a Refund of Fees.
e. Disclaimer of Warranties. THE EXPRESS LIMITED WARRANTIES IN SECTIONS 10.b AND 10.c AND THE AVAILABILITY REQUIREMENT SET FORTH IN SECTION 4.d ABOVE ARE OUR SOLE AND EXCLUSIVE WARRANTIES CONCERNING ALL SERVICES, THE SOFTWARE AND THE REPORTS AND ANALYSES, AND ALL SERVICES, THE SOFTWARE AND THE REPORTS AND ANALYSES ARE OTHERWISE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON-INFRINGEMENT, ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, AND EXCEPT FOR THE AVAILABILITY REQUIREMENT SET FORTH IN SECTION 4.d ABOVE, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE SERVICES, SOFTWARE OR REPORTS AND ANALYSES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES, SOFTWARE OR REPORTS AND ANALYSES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
11. Indemnification.
a. By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the Software or Reports and Analyses or your use thereof (excluding Your Data or Confidential Information) infringe any U.S. patent, copyright or trademark of such third party, or misappropriate the trade secret of such third party (each, an “Infringement Claim”).
b. Exclusions from Infringement Claims. Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software or Reports and Analyses (as applicable) in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the User Guide or otherwise in writing by us); (ii) modifications or configurations made to the Software or Reports and Analyses by anyone other than us or a party acting under our direction without our prior written consent; (iii) Third-Party Materials; or (iv) any action taken by you, your Affiliate or any Authorized User relating to use of the Software or Reports and Analyses that violates this Agreement.
c. Mitigation for Infringement Claims. If the Software and/or Reports and Analyses are, or in our opinion are likely to be, the subject of an Infringement Claim, or if your, your Affiliate’s or any Authorized User’s use of the Software and/or Reports and Analyses is enjoined or threatened to be enjoined, we will, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the allegedly infringing Software and/or Reports and Analyses (as applicable) as contemplated by this Agreement, (ii) modify or replace the allegedly infringing Software and/or Reports and Analyses to make the same (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and without any liability to you and we will promptly refund to you: (x) if the Software is the subject of the Infringement Claim, on a pro rata basis the share of any Software subscription fees prepaid by you to us for the future portion of the applicable subscription term that would have remained but for such termination, and/or (y) if one or more Reports and Analyses are the subject of the Infringement Claim, the fees specifically paid by you to us for the applicable Reports and Analyses.
d. Indemnification Procedures. If a party reasonably believes it is entitled to indemnification under this Agreement, such party (the “Indemnified Party”) promptly must give the other party (the “Indemnifying Party”) written notice of the claim of indemnification, provided that an Indemnified Party’s failure to notify the Indemnifying Party will not diminish the Indemnifying Party’s indemnification obligations except to the extent the Indemnifying Party is materially prejudiced as a result of such failure. Any such notice shall set forth in reasonable details the facts, circumstances and basis of the applicable Claim. Upon receipt of notice of the assertion of a Claim, the Indemnifying Party will have the right to control the defense or settlement of the matter at its own expense and with counsel of its choice, provided that the Indemnifying Party shall not enter into any settlement of the relevant Claim without written consent of the Indemnified Party (not to be unreasonably withheld). The Indemnified Party must cooperate reasonably with the Indemnifying Party, at the Indemnifying Party’s expense, to facilitate the defense, compromise or settlement of any Claims. The Indemnified Party may employ separate counsel and participate in any indemnified Claim, but the fees and expenses of such counsel will be at the expense of the Indemnified Party.
12. Limitation of Liability.
a. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON OR ENTITY FOR DIRECT DAMAGES IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY (THE “DAMAGES CAP”). ADDITIONALLY, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. Exclusions from Limitations. The exclusions and limitations of liability in Section 12.a will not apply to (i) a party’s indemnification obligations under this Agreement; (ii) a party’s fraud, gross negligence or willful misconduct; (iii) a party’s breach of its confidentiality obligations under Section 5; or (iv) a party’s (or your Affiliate’s) infringement or misappropriation of the other party’s intellectual property rights.
13. Miscellaneous.
a. Entire Agreement. This Agreement and your Order together constitute the entire agreement between the parties on the subject matter hereof, and supersede all prior negotiations, understandings or agreements (oral or written) and all past dealing or industry custom.
b. Amendment, Severability and Waiver. No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
c. Governing Law and Venue. Except as expressly provided in Section 6.b (CCPA Compliance) or otherwise expressly agreed by you and us, this Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in the State of Delaware, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
d. Notices. All notices under this Agreement must be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in your Order.
e. Assignment. Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party’s consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
f. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
g. Relationship of the Parties. The relationship between the parties is that of independent contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
h. Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation) following the first date you accept this Agreement, criminal acts of third parties, telecommunication failures not caused by a party, problems with equipment or software provided by other parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party’s reasonable control (each, a “Force Majeure Event”). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
i. Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2.b (Limitations and Restrictions) or Section 5 (Confidentiality) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
j. Conflict in Terms. If there is a conflict between this Agreement and your Order, the terms of the Order shall govern the provision of the Software or the Services involved; provided, however, that nothing in your Order may modify or supersede anything in Sections 2.b (Limitations and Restrictions), 8 (Ownership and Intellectual Property Rights), 10 (Representations and Warranties), 11 (Indemnification), 12 (Limitation of Liability), 13 (Miscellaneous) or 14 (Other Definitions) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the Order and the parties have expressly agreed in the Order to modify or alter the relevant provision of this Agreement.
k. Counterparts. The Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Order delivered by facsimile, e-mail or other electronic means is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
14. Other Definitions. Capitalized and other terms that are used in this Agreement have the meanings described below:
“Affiliate” means another entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with you. The term “control” (including the terms “controlled by” and “under common control with”) means the power to direct or cause the direction of the management and policies of an entity through the ownership of more than fifty percent (50%) of the voting securities of the entity.
“Authorized User” means your employees or employees of your Affiliates who have registered to use the Platform by and through your account and to whom we have provided access codes to log-in to the Platform through the Site. Unless we have provided prior written consent, “Authorized Users” shall not include any third parties, including but not limited to third party independent contractors, consultants, agents, subcontractors, vendors or service providers.
“Claim” means any investigation by a governmental body, claim, suit, action or proceeding.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
“Order” means the written Order executed by you and us that references this Agreement, and which forms a part of and is incorporated into this Agreement by reference for all purposes.
“Permitted Use” means your internal business purposes in the ordinary course of such business.
“User Guide” means the then-current online, electronic and written user documentation and guides we make available to you, your Affiliates and your Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.
“You” and “your” as used throughout this Agreement refers to the party (other than us) entering into this Agreement to obtain a subscription to the Platform, Reports and Analyses and our Services.
“Your Data” means information, data, records or other materials that are uploaded directly by you, your Affiliate or an Authorized User either (i) by or through the Software for the purposes of being stored or otherwise processed within the Software, or (ii) to a File Transfer Protocol (FTP) site provided to you by us for purposes of facilitating our provision of Support Services or other Services to you. For purposes of this Agreement, Your Data does not include Reports and Analyses.