Terms of Service
This Subscription Agreement (“Agreement”) is entered into by the entity set forth on the signature page or on the Order Form (“Customer”) and Datajoy, Inc., a Delaware corporation (“Company”). This Agreement is effective as of the date executed by Company (“Effective Date”).
“Affiliate” means any company controlling, controlled by or under common control with a party, where “control” shall mean ownership, directly or indirectly, of the shares of a company representing fifty percent (50%) or more of the voting rights in this company.
“Documentation” means the documentation made available by Company with the Products, which may be modified from time to time.
“Fees” mean the fees for the Products and/or Support described in each Order Form.
“Order Form” means the mutually agreed ordering document setting forth the Products, Fees, and any Scope of Use. An Order Form may be the final quote issued by Company.
“Scope of Use” means the specific use case and deployment attributes for the Product as set forth in an Order Form.
“Products” means the Company’s analytics platform and modules made available under this Agreement and specified on an Order Form and all Updates that Company makes available during the Subscription Term.
“Support” means the technical support and maintenance for the Products.
“Update” means any updates to the Products made commercially available by Company during the Subscription Term.
Upon mutual execution of an Order Form, Company will make available the applicable Products set forth on an Order Form in accordance with this Agreement. Customer understands and agrees that: (a) the Products may not be accessed or used in excess of the Scope of Use set forth on the applicable Order Form; (b) the Products are for Customer’s internal business purposes. Any circumvention of technical measures included in the Products constitutes a material breach of this Agreement. If Customer exceeds the Scope of Use, Customer will promptly remit to Company the additional fees due for such over-deployment. Products may be modified from time to time in Company’s sole discretion, provided that any modifications will not materially reduce the benefits provided by Products under an applicable Order Form.
1 Customer will pay the Fees set forth on an Order Form. All Fees are non-refundable, non-cancelable, and exclusive of applicable taxes. Unless otherwise set forth on an Order Form, Customer will pay Fees within thirty (30) days of the date of Company’s invoice, without deduction or setoff. Company is entitled to charge Customer interest, at a rate equal to one and a half percent (1.5%) per month on any overdue or underpaid amounts. If Customer fails to pay Fees in accordance with this Section 2, Company may suspend provision of the Products until such payment is received by Company. Customer’s payment obligation will remain in effect during any such suspension. Unless otherwise set forth on an Order Form, Fees due in a Renewal Term will be Company’s then-current fees for Products.
2 Customer will pay directly any taxes arising out of this Agreement, including applicable local, state, federal and international sales taxes, value added taxes, withholding taxes, and any other taxes or duties of any kind, but excluding taxes on Company’s net income and all employer reporting and payment obligations with respect to Company’s personnel. If any applicable law requires Customer to withhold amounts from any payments to Company under this Agreement, (a) Customer will effect such withholding, remit such amounts to the appropriate taxing authorities and promptly furnish Company with tax receipts evidencing the payments of such amounts and (b) the sum payable by Customer upon which the deduction or withholding is based will be increased to the extent necessary to ensure that, after such deduction or withholding, Company receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount Company would have received and retained absent the required deduction or withholding.
3. Subscription License.
3.1 Subject to the payment of applicable Fees, Company grants to Customer a limited, non-exclusive, non-transferable license during the Subscription Term to access and use Products in accordance with the Scope of Use and solely in connection with Customer’s internal operations.
3.2 Customer will not and will not allow any third party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from any encrypted or encoded portion of the Products, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage or permit others to do so (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions), (b) sell, sublicense, rent, lease, distribute, market, or commercialize the Products for any purpose, including timesharing or service bureau purposes, (c) create, develop, license, install, use, or deploy any third party Products or services to circumvent, enable, modify or provide access, permissions or rights which violate the technical restrictions of the Products, (d) remove any product identification, proprietary, copyright or other notices contained in the Products, (e) modify or create a derivative work of any encrypted or encoded portion of the Products, or any other portion of the Products, (f) publicly disseminate performance information or analysis including, without limitation benchmarking test results; (g) use the Products other than as permitted by the Scope of Use; (h) provide any inaccurate or untrue information in connection with Customer’s use of Products, (i) share any user or login credentials to the Products, or (j) change any proprietary rights notices which appear in the Products or Documentation. Customer will be solely responsible for, and represents and warrants that it has, obtained all necessary consents and licenses in order for Company to make available the Products to Customer, and process any data submitted by Customer to Company or the Products.
4. Publicity and Confidentiality.
4.1 Company will be permitted to reference its relationship with Customer on its website, during discussions with analysts and reporters and in customer briefings and regulatory filings. Company will comply with Customer’s publicly available trademark usage policies.
4.2 For purposes of this Agreement, the party disclosing Confidential Information is the “Discloser,” and the party receiving Confidential Information is the “Recipient.” Confidential Information means all information that is marked or identified as confidential or proprietary at the time of disclosure or that would be reasonably understood to be confidential based on the nature and circumstances surrounding disclosure.
4.3 Confidential Information excludes information that is: (a) known to Recipient without restriction before receipt from Discloser; (b) publicly available through no fault of Recipient; (c) rightfully received by Recipient from a third party without a duty of confidentiality; or (d) independently developed by Recipient without use of or reference to Discloser’s Confidential Information. If Confidential Information is required to be produced by law, court order, or governmental authority, Recipient must (subject to legal prohibition) immediately notify Discloser and only disclose the information required. Recipient will use Discloser’s Confidential Information only for the purposes provided and as directed by Discloser. Confidential Information may not be disclosed to any third party other than Recipient’s employees and contractors that need to know such information and that are subject to obligations of confidentiality to Recipient no less restrictive than the terms set forth herein. At Discloser’s request, all written, recorded, graphical, or other tangible Confidential Information, including copies, must be returned to Discloser or destroyed by Recipient. At the request of Discloser, Recipient will certify in writing that any Confidential Information not returned to Discloser has been destroyed. Recipient may use Residuals for any purpose, including use in the acquisition, development, manufacture, promotion, sale, or maintenance of products and services; provided that the foregoing does not represent a license under any intellectual property or proprietary rights of disclosing party.
5. Intellectual Property.
5.1 Company owns all intellectual property and proprietary rights in the Products, Documentation, and related works, including but not limited to any modifications and derivative works of the foregoing (collectively, “Company IP”).
5.2 In the event that Customer provides Company with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback related to Company IP (collectively, “Communications”), Customer grants Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, modify, and distribute such Communications in any manner without compensation to Customer or attribution of any kind.
5.3 Customer acknowledges and agrees that Company may collect, review, process, and analyse certain metadata related to Customer’s use of the Product. Company will use such metadata for the purpose of product administration and improvement, and will not disclose such data to third parties.
6. Warranties and Disclaimers.
6.1 Company warrants that the Support and Professional Services will be performed in a professional and workmanlike manner consistent with applicable industry standards. If Customer believes there has been a breach of this warranty, Customer must notify Company in writing promptly following delivery of such Support or Professional Services stating in reasonable detail the nature of the alleged breach. As Company’s sole obligation and Customer’s exclusive remedy, Company will to correct or re-perform, at no additional charge, any non-conforming Support or Professional Services.
6.2 Customer represents and warrants that it and its use of the Products, Support, and Professional Services will at all time comply with applicable laws.
6.3 EXCEPT AS PROVIDED IN SECTION 6.1, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, THE PRODUCTS, SUPPORT, AND RELATED SERVICES INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
7. Limitation of Liability.
7.1 IN NO EVENT WILL COMPANY OR ITS AFFILIATES BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, RELIANCE, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND AND HOWEVER CAUSED EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
7.2 COMPANY AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO COMPANY PURSUANT TO THE ORDER FORM GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE TIME THE CLAIM AROSE.
7.3 THE PROVISIONS OF THIS SECTION 7 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND COMPANY. COMPANY’S FEES FOR THE PRODUCTS, SUPPORT AND SERVICES REFLECT THIS ALLOCATION OF RISKS AND LIMITATION OF LIABILITY.
8.1 Company will defend Customer against any third party claim brought against Customer claiming that such Products as licensed under this Agreement infringes such third party’s patent or copyright valid and enforceable in the United States (“Infringement Claim”) and indemnify Customer from the resulting costs and damages finally awarded by a court of competent jurisdiction against Customer to the third party making such Infringement Claim, provided that Customer gives Company: (a) prompt written notice of the Infringement Claim, (b) exclusive control over the defense and settlement of the Infringement Claim, and (c) reasonable cooperation in connection with the defense and settlement of the Infringement Claim. Company will have no liability if the alleged infringement is based on: (i) combination of the Products with other Products, data or business process not developed and provided by Company, (ii) use for a purpose or in a manner for which the Products was not designed, (iii) use of any older release of the Products when use of a newer revision would have avoided the infringement, (iv) any modification of the Products made by anyone other than Company, (v) Company’s compliance with any materials, designs, specifications or instructions provided by Customer, (vi) any third party or open source software, or (vii) Customer’s use of the Products after Company notifies Customer to discontinue running it due to an Infringement Claim.
8.2 Should Products become, or in Company’s opinion be likely to become, the subject of such an Infringement Claim, Company will, at its option and expense, (a) procure for Customer the right to make continued use of the Products, (b) replace or modify such so that it becomes non-infringing, or (c) terminate this Agreement and refund any prepaid but unused Fees paid therefor.
8.3 THIS SECTION 8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS.
9. Term and Termination.
1 This Agreement will be in effect until all outstanding Order Forms have expired to been terminated in accordance with this Agreement. Unless otherwise set forth in an Order Form, each Order Form will be in effect for a period of one (1) year from the Effective Date (the “Initial Term”) and will automatically renew for successive one (1) year periods (each a “Renewal Term” and together with the Initial Term, the “Subscription Term”). During the Subscription Term, Customer may purchase additional Products pursuant to an Order Form which will be co-terminus with the then-current Subscription Term. Either party may elect not to renew an Order Form by providing the other party with no less than sixty (60) days’ notice prior to the commencement of a Renewal Term. The expiration or termination of an Order Form will not terminate any other Order Form in effect. Either party may terminate this Agreement or Order Forms with immediate effect: (a) in the event that the other party breaches this Agreement and does not cure such breach within thirty (30) days following of written notice of such breach, (b) in the event that the other party ceases business, becomes insolvent or bankrupt or if a receiver, examiner, administrator or administrative receiver is appointed over any part of that party’s business or if anything analogous occurs in relation to that party under the laws of another jurisdiction, or (c) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings in relation to such party.
2 Sections 2 and 5 – 8, 9.2, 9.3, and 11 will survive the expiration or termination of this Agreement.
9.3 During the Subscription Term and for one (1) year following termination or expiration of this Agreement (but no more than once in a calendar year), Company and its auditors may inspect Customer’s records relating to its reproduction and use of the Products for the purposes of verifying Customer’s compliance with this Agreement and the Scope of Use. Customer will cooperate fully with Company and its auditors in conducting audits and provide reasonable assistance. If an underpayment is discovered, Customer will promptly pay such amount and Customer will reimburse Company for the reasonable cost of the audit.
10. Data Protection.
- “Applicable Privacy Law(s)” means all data protection and privacy laws applicable to the Personal Data in the European Union, United Kingdom, and the United States, including all applicable US federal and state laws and, in respect of Personal Data originating from the European Economic Area, EU Directive 95/46/EC (as superseded, amended or replaced); and
- “Personal Data”, “processing”, “Controller” and “Processor” shall have the meanings given to them in Applicable Privacy Law(s). If and to the extent that Applicable Privacy Law(s) do not define such terms, then the definitions given in EU Directive 95/46/EC (as amended, superseded or replaced) will apply.
- If Customer transfers, sends or otherwise discloses information containing Personal Data to Company in connection with its use of the Product, Customer is the Controller of the Personal Data and Company shall process the Personal Data as a Processor on Customer’s behalf. Further, the parties agree that:
- Customer shall be responsible for compliance with Applicable Privacy Law(s) and ensuring Customer has the right to transfer, or provide access, to Company for these purposes;
- Customer shall be responsible for taking any steps Customer considers necessary to protect any Personal Data, such as by removing, obfuscating or encrypting, prior to sending it to Company;
- Company will process such Personal Data only for the purpose of providing Products and in accordance with Customer’s lawful instructions;
- Company shall have in place appropriate technical and organizational measures designed to protect the Personal Data it processes from any unauthorized or unlawful processing and against accidental loss, destruction or damage; and
- If Customer is sending Personal Data originating from the European Economic Area and requires execution of standard contractual clauses for the transfer of Personal Data to Processors (as approved by the European Commission) and Company’s data processing addendum (“DPA”), Company will, upon Customer’s request, provide and execute such standard contractual clauses and DPA with Customer.
11.1 This Agreement, and any dispute relating to or arising out of this Agreement, will be governed by and in accordance with the laws of California, without giving effect to the conflict of laws provisions. For all disputes arising out of this Agreement, the parties consent to the exclusive jurisdiction of the federal and state courts located in San Francisco, California.
11.2 Unless otherwise specified in this Agreement, all notices will be in writing and will be mailed (via registered or certified mail, return receipt requested), delivered by a nationally recognized express courier service with the ability to track shipments, or personally delivered to the other party at the address set forth above (or at such other address as either party may designate in writing to the other party). All notices will be effective upon receipt.
11.3 This Agreement is binding on the parties to this Agreement, and there are no third party beneficiaries. This Agreement is assignable by either party only with the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement to an Affiliate in connection with a merger, acquisition, asset transfer, or corporate reorganization.
11.4 This Agreement together with all Order Forms is the entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. All amendments to this Agreement must be in writing, executed by both parties and expressly state that they are amending this Agreement. Any additional or conflicting terms set forth in a purchase orders or other ordering document received from Customer or its authorized representatives are void and unenforceable.
11.5 Failure to enforce any provision of this Agreement will not constitute a waiver thereof. No waiver will be effective unless it is in writing and signed by the waiving party. If a party waives any right, power, or remedy, the waiver will not waive any successive or other right, power, or remedy the party may have under this Agreement. If any provision is found to be unenforceable, it and any related provisions will be interpreted to best accomplish its essential purpose.
11.6 Neither party will be liable for failures or delays in performance due to causes beyond its reasonable control, including, but not limited to, any act of God, fire, earthquake, flood, storm, natural disaster, accident, pandemic, labor unrest, civil disobedience, act of terrorism or act of government; however, the inability to meet financial obligations is expressly excluded.