This Master Subscription Agreement (“Agreement”) is entered into by and between Datameer, Inc. (“Datameer”) and the entity or person placing an order for or accessing the Service (“Customer” or “you”). This Agreement is effective as of (a) the Customer’s initial access to the Service through any online registration process or order process or (b) the effective date identified in an Order Form, whichever is earlier (“Effective Date”). This Agreement, including all Order Form(s), Statement(s) of Work, and any data processing addendum(s) (each, where applicable), constitutes the entire agreement between Customer and Datameer with regard to the Service to be provided, whether in connection with a paid or free trial subscription to the Service. Capitalized terms in this Agreement are defined in Section 1 (Definitions) and elsewhere in this Agreement. In the event of any inconsistency or conflict between the terms of this Agreement and the terms of any Order Form, data processing addendum, and/or SOW, the terms of the Order Form, data processing addendum and/or SOW (each, where applicable) will prevail over this Agreement solely with respect to their respective subject matter. If Customer registers for a free trial of the Service, the applicable provisions of this Agreement will also govern that free trial.
BY SIGNING AN ORDER FORM, CLICKING “ACCEPT” (OR SIMILAR BUTTON), ACCESSING OR USING THE SERVICE, OR AUTHORIZING OR PERMITTING ANY AGENT OR USER TO ACCESS OR USE THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR ANOTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CUSTOMER” AND “YOU” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT USE OR AUTHORIZE ANY USE OF THE SERVICE.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity.
“Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service.
“Documentation” means the user guides, manuals, instructions, specifications, notes, documentation, printed updates, release notes and other materials related to the Service, its use, operation or maintenance, together with all enhancements, modifications, derivative works, and amendments to those documents, that Datameer publishes or provides under this Agreement.
“Education Services” means the education and training services provided by Datameer as described more fully in an applicable Order Form or SOW.
“Internal Business Purpose” means Customer’s use of the Service for its own internal business operations. Such use does not include use by Customer on a service bureau basis or otherwise provide services to, or process data for, any third party, or otherwise use to monitor or service the system, networks, and devices of third parties.
“Order Form” means a separate executed order form, order confirmation or any other ordering document (including online order form) under which Customer subscribes to the Service or any other products or services ordered pursuant to this Agreement. Order Form also includes, without limitation, ordering documents issued by Customer via Customer’s purchase order system or other ordering document submitted to Datameer, which references applicable terms set forth in the Datameer-issued quote or ordering document. Order Form does not include the terms of any preprinted terms on a Customer purchase order or other terms on a purchase order that are additional or inconsistent with the terms of this Agreement.
“Personal Data” means any information relating to an identified or identifiable natural person. An identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity.“Planned Downtime” means a scheduled time period in which the Service is unavailable for use and access, and upon notice to Customer where practical.
“Professional Services” means the deployment, migration, upgrading, configuration, consulting, or other professional services as described in an Order Form or Statement of Work.
“Regulated Data” means (i) any special categories of personal data enumerated in the European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) as amended and supplemented by the Health Information Technology for Economic and Clinical Health Act, including the HIPAA omnibus final rule; or (iii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standard (PCI DSS).
“Usage Limit” means the maximum usage of the Service that is permitted under the type of subscription included in the applicable order, which may include, without limitation, number of Users authorized to use the Service under the subscription and limitations to particular business units/departments.
“User” means individuals who are authorized by Customer to use the Service, for whom a subscription has been procured. Users may include, for example, Customer’s employees, consultants, and contractors.
“Service” means the products and services that are ordered by Customer under an Order Form or online portal, whether on a free trial or paid basis, and made generally available by Datameer. “Service” excludes Third Party Services as that term is defined in this Agreement and any additional features or associated services that are not provided under this Agreement.
“Service Data” means data and data elements (excluding Customer Data) collected by the Service or Datameer’s computer systems regarding configuration, environmental, usage and performance of the Service that may be used to generate log, statistics and reports regarding performance, availability, integrity and security of the Service.
“Statement of Work” or “SOW” means a document, work authorization(s) or other contract(s) that describes certain Professional Services and/or Education Services purchased by Customer under this Agreement. Each Statement of Work will incorporate this Agreement by reference.
“Subscription Term” means the period during which Customer has agreed to subscribe to a Service.
“Support Services” means the support services provided by Datameer in accordance with Datameer’s then-current support policy and as identified in an Order Form.
- ACCESS TO AND USE OF THE SERVICE.
2.1 Access Grant. Subject to the terms and conditions of this Agreement and any applicable Order Form(s), Datameer grants to Customer a limited, non-exclusive, non-transferable (except as specified in Section 13.3 Assignment) limited right during the Subscription Term to allow its Users to access and use the Service in accordance with the Documentation, solely for Customer’s Internal Business Purpose. Except as otherwise stated under this Agreement, the rights granted to the Customer in this Section 2.1 are non-exclusive, non-sublicensable, and non-transferable.
2.2 Usage Limits. Customer may only access and use the Service within the Usage Limit specified in the applicable Order Form. Subject to any limitation on the number of Users allowed under the type of subscription to which Customer subscribed, access to and use of the Service is restricted to Customer’s business unit(s) and/or department(s) identified in the Order Form. Customer will pay any invoice for excess usage beyond the Usage Limit in accordance with Section 8.1.
2.3 Availability. Datameer will use commercially reasonable efforts to make the Service available to Customer during the Subscription Term pursuant to this Agreement and the applicable Order Form, except (i) for Planned Downtime of which Datameer will use commercially reasonable efforts to notify Customer in advance and (ii) for any unavailability caused by circumstances beyond Datameer’s reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Datameer’s employees), Internet service provider failure or delay, Third-Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
2.4 Support Services. During the Subscription Term, Datameer will provide Support Services to Customer in accordance with Datameer’s Support Policy located at https://supportpolicy.neebo.ai. In the event that the level of support is not identified in the Order Form, Customer will receive a “standard” level of support that is included in the Service. Customer may upgrade to premium support services for an added cost.
2.5 Free Trial Services. If Customer registers on Datameer’s website for a limited free trial, Datameer will make the Service available to Customer on a trial basis free of charge (“Limited Free Trial Service”) until the earlier of (i) the end of the limited free trial period for which Customer registered to use the Service, (ii) the start date of any purchased subscription to a Service ordered by Customer for such Service or (iii) termination by Datameer in its sole discretion. The use of any Limited Free Trial Service will be for the term specified by Datameer and may have limited features, functions, capacity, data storage, data security, data continuity, data retention or other limitations as determined by Datameer. Any Customer Data entered into the Free Trial Service, and any configurations or customizations made to the Free Trial Service by or for Customer, during the Limited Free Trial Service will be permanently lost unless Customer purchases a subscription to the same Service as covered by the trial. Customer understands that only Sections 1-7, 10.2-10.3, 11.2 -11.3, 12 and 13 of this Agreement apply to a free trial version of the Service. The Limited Free Trial Service is provided “AS IS” without warranty or condition of any kind.
2.6 Beta Services. From time to time, Datameer may make a product, service, or functionality available to try at Customer’s sole discretion at no additional charge, which is designated as beta, pilot, limited release, non-production, early access, evaluation, or by a similar description (“Beta Services”). Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to the Customer before access. Beta Services are not considered “Service” under this Agreement; however, all restrictions, reservations of rights and Customer’s obligations concerning the Service, and use of any Third-Party Services will apply equally to Customer’s use of Beta Services. Datameer may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Datameer will have no liability for any harm or damage arising out of or in connection with Beta Services. Customer understands that only Sections 1 – 7, 10.2-10.3, 11.2 -11.3, 12 and 13 of this Agreement apply to Beta Services. Beta Services are provided “AS IS” without warranty or condition of any kind.
2.7 Professional & Education Services. Subject to Customer’s payment of any applicable fees due, Datameer will provide Professional Services and/or Education Services, as described in a mutually agreed upon Statement of Work or as otherwise outlined in an applicable Order Form in accordance with Datameer’s Professional and Education Services Terms located at https://www.datameer.com/professional-services-agreement/.
- CUSTOMER’S OBLIGATIONS AND RESPONSIBILITIES.
3.1 In General. Customer is solely responsible for its Users and for complying with all laws and regulations applicable to Customer’s use of the Service. User IDs are granted to individual, named persons and may not be shared – i.e., a single login may not be shared by multiple people. Customer must require that all Users keep their user IDs and passwords for the Service strictly confidential and do not share such information with any unauthorized person. Customer must (i) notify Datameer promptly upon becoming aware of any unauthorized use of any Customer password or username (or any other breach of security of the Service), and (ii) notify Datameer promptly upon becoming aware of, and make a reasonable effort to stop any unauthorized copying, distribution or other misuse or any aspect of the Service.
3.2 Restrictions. Customer agrees not to use or permit the use of the Service: (i) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene, (ii) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity, (iii) in any manner that may be unlawful or give rise to civil or criminal liability, (iv) in any manner that is likely to damage, disable, overburden (exceeding the fair use policy), impair the Service or interfere in any way with the use or enjoyment of the Service by others, (v) to introduce, store, download or transmit any viruses, malware, “Trojan Horses” or other harmful code, (vi) use the Service for competitive analysis or to build competitive products, or (vii) in violation of any applicable export law or regulation. Customer will not transfer, rent, resell, charge or otherwise commercialize any use of the Service. Customer will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Datameer or authorized within the Service), use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or remove any proprietary notices or labels.
3.3 Regulated Data. Customer may not transmit, upload, or store any Regulated Data within the Service unless Customer has specifically entered into a supplemental agreement (e.g., DPA) with Datameer governing transmission, storage, and upload of Regulated Data in the Service. Unless such supplemental agreement is in place, Datameer will have no liability under this Agreement for Regulated Data, notwithstanding anything to the contrary to this Agreement or any federal or state laws.
3.4 Export Control. Customer may not remove or export from the United States or allow the export or re-export of the Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
3.5 High-Risk Activities. The Service is not developed or intended for use in high-risk hazardous environments requiring fail-safe performance, including without limitation in the operation of nuclear facilities, aircraft navigation or controls systems, air traffic control, or weapons systems, or any other application in which the failure of the Service could lead to severe physical or environmental damages (“High-Risk Activities”). Customer will not use the Service for High-Risk Activities.
3.6 Equipment. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, Customer account, usernames, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4.1 Definition of Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose any confidential, proprietary or trade secret information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Datameer includes non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes non-public information provided by Customer to Datameer to enable the provision of the Services. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, any Personal Data uploaded to the Service by Customer.
4.2 Receiving Party’s Obligations. The Receiving Party agrees: (i) to maintain the confidentiality of the Confidential Information with at least the same degree of care it uses to protect its own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances (ii) not to use any of the Disclosing Party’s Confidential Information for any purpose other than carrying out the Receiving Party’s obligations or exercising its rights under this Agreement (the “Purpose”). The Receiving Party must not disclose to any third party any Confidential Information, other than to the Receiving Party’s Affiliates, employees, contractors, and consultants who (i) need to know such information in order to fulfill the Purpose, and (ii) are bound by confidentiality obligations substantially similar to the Receiving Party’s under this Agreement. Each party is fully responsible for its respective Affiliates’, contractors’, and consultants’ compliance with this Agreement.
4.3 Exceptions; Compelled Disclosure. The Disclosing Party agrees that the foregoing will not apply to any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, (iv) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law; provided, however, that the Receiving Party must give the Disclosing Party reasonable notice before this disclosure, and seek a protective order, confidential treatment, or other remedy, if available, to limit the scope of the required disclosure.
- PROPRIETARY RIGHTS.
5.1 Customer Data. As between the parties, Customer will own all right, title and interest in and to the Customer Data. Subject to the terms of this Agreement, Customer grants to Datameer a non-exclusive, worldwide, royalty-free right to use, process, copy, store, transmit, modify and disclose the Customer Data solely to the extent necessary to provide the Service to Customer or any User, or to prevent or address service or technical problems under this Agreement, or as may be required by law. Customer is responsible for obtaining all necessary consents, authorizations and rights and providing all necessary notifications in order to provide Customer Data to Datameer and for Datameer to use Customer Data in the performance of its obligations in accordance with the terms and conditions of this Agreement. Customer must not include or provide data that subjects Datameer to data privacy laws based on the storage or processing of Customer Data by the Service where compliance with such laws is not addressed by this Agreement. Customer will be responsible for providing Customer Data in a format consistent with the requirements set forth in the applicable Documentation (or as otherwise specified by Datameer).
5.2 Datameer Ownership of the Service. Datameer will own and retain all right, title and interest in and to (i) the Service and Software, all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with Professional Services, Education Services and/or Support Services, and (iii) all intellectual property rights related to any of the foregoing. Datameer’s Service is made available on a limited access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale.”
5.3 Feedback. If Customer provides any suggestions, ideas, enhancement requests, recommendations or feedback regarding the Service or any other products or services provided by Datameer (“Feedback”), Datameer may freely use and incorporate such Feedback in Datameer’s products and services. Customer will have no obligation to provide Feedback, and all Feedback is provided by Customer “as is” and without warranty of any kind.
5.4 Service Data. Datameer may or may engage third party analytics providers to collect, analyze, and use the Service Data. Datameer will be free (during and after the Subscription Term) to (i) use the Service Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Datameer offerings, and (ii) disclose such Service Data solely in aggregate or other de-identified forms in connection with its internal business operation purposes.
- CONTENT SECURITY; DATA PRIVACY.
6.1 Security. Datameer will, consistent with commercially reasonable industry-standard practices, maintain appropriate physical, administrative and technical safeguards and other security measures: (i) to maintain the security and confidentiality of Customer Data and (ii) to protect Customer Data from threats or hazards to its security, availability and integrity, including accidental loss, unauthorized use, access, alteration or disclosure. Datameer will safeguard Customer Data with at least the degree of care it uses to protect its own sensitive information of a like nature and no less than a reasonable degree of care.
6.2 Compliance with Privacy Laws. Each party will comply with all applicable country-specific data protection laws, regulations, and other legal requirements applicable to the processing of Personal Data under this Agreement, including without limitation, the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq. (“CCPA”) and the laws and the General Data Protection Regulation 2016/679 of the European Parliament and of the Council, and any implementation thereof in national law (“GDPR”).
6.3 CCPA. To the extent that Datameer’s processing of personal information (as such term is defined in the CCPA) on behalf of Customer falls within the scope of the CCPA, the parties agree that (i) Customer is considered a “Business” under the CCPA and (ii) Datameer acts as a “Service Provider,” as such terms are defined in the current version of the CCPA. Customer as the “Business” bears the primary responsibility for ensuring that any processing of Personal Data is compliant with the CCPA. Datameer will use, process and transfer any Personal Data provided by Customer solely for the purpose of performing Datameer’s obligations under this Agreement, and for no commercial purpose other than the performance of such obligations and improvement of the Service. For the avoidance of any doubt, Datameer will not sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate customer’s personal information to a third party for monetary or other valuable consideration. Datameer may share aggregated and/or anonymized information regarding Customer’s use of the Service with third parties to help Datameer develop and improve the Service in accordance with Section 5.4.
6.4 GDPR. If the Personal Data is regarding individuals in the European Economic Area (“EEA”), the United Kingdom and Switzerland, Datameer and Customer agree to be bound the Data Processing Addendum (“DPA”) located at https://neebo.ai/DPA or other terms and conditions agreed upon by Customer and Datameer that reflect their respective legal obligations with respect to Personal Data, and any applicable data transfer mechanisms.
6.5 Onward Transfer of Data. The parties agree to comply with the applicable data protection laws and regulations for onward transfer of personal data. To the extent that Personal Data from the EEA, the United Kingdom and Switzerland is processed by Datameer, the EU-US and/or Swiss-US Privacy Shield and/or the Standard Contractual Clauses will apply, as applicable. For the purposes of the Standard Contractual Clauses, Customer and its applicable affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and execution of an Order Form will be treated as its execution of the Standard Contractual Clauses and Appendices.
- THIRD-PARTY PRODUCTS AND SERVICES.
7.1 Third-Party Products & Services. Datameer’s Service may contain features or functions that enable the integration or interoperation of the Service with third-party applications, services or products, which are licensed by their respective provider to Customer (“Third-Party Services”). To use such features or functions, however, Customer may be required to obtain access separately to such Third-Party Services from the respective providers, and Customer may be further required to grant Datameer access to Customer accounts with such providers to the extent necessary for Datameer to provide the Service. By requesting or allowing Datameer to enable access to such Third-Party Services, Customer acknowledges that it has accepted all terms related to the Third-Party Services and agrees to use the Third-Party Services in accordance with the license or service terms provided by such provider. If Customer installs or enables (or directs or otherwise authorizes Datameer to install or enable) Third-Party Services for use with any Service, Customer hereby authorizes Datameer to allow the provider of such Third-Party Services to access Customer Data as necessary for the interoperation of Third-Party Services. Customer agrees that Datameer is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Services, or for the security or privacy practices of any third-party provider or its products or services. Customer is solely responsible for its decision to permit any third-party provider product or service to use Customer Data. DATAMEER DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSION OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
- ORDER PROCESS; FEES AND PAYMENT.
8.1 Order Process. Customer may order a Service via one or more Order Forms. If Customer requires that a purchase order (“PO”) to be issued before making payment under an Order Form, Customer must provide to Datameer such valid PO conforming to the applicable Order Form in time for Customer to meet its payment obligations. The terms and conditions of any PO (or any other unilateral Customer document not agreed in writing by authorized representatives of both parties) will have no effect on the rights or obligations of the parties, regardless of any failure to object to such terms and conditions. Customer agrees to provide Datameer accurate billing and other contact information for each Order Form at all times during the Subscription Term, including the name of Customer’s applicable legal entity and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer will update this information within thirty (30) days after any changes, via email to Datameer’s Finance Team at [email protected]
8.2 Fees and Payment. Customer must pay Datameer all applicable fees and charges described in an Order Form in accordance with the terms therein (the “Fees”). If Customer’s use of the Service exceeds the Usage Limit set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and the Fees are non-refundable. Datameer reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Subscription Term or the then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Datameer has billed Customer incorrectly, Customer must contact Datameer no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Datameer’s Finance team at [email protected] for billing related questions.
8.3 Invoice. Datameer may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Datameer thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Service.
8.4 Taxes. Datameer’s Fees do not include taxes, levies, or duties imposed by taxing authorities (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement other than taxes based on income, property, or employees of Datameer. If Datameer has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Datameer a valid tax exemption certificate authorized by the appropriate taxing authority.
8.5 Authorized Reseller. If Customer acquires a subscription to the Service through an authorized reseller of Datameer (“Authorized Reseller”), then, notwithstanding anything to the contrary above, Customer agrees to pay the Authorized Reseller the subscription fees associated with such subscription, and Customer will have no direct payment obligations to Datameer for such fees. However, for the avoidance of doubt, no agreement between Customer and an Authorized Reseller is binding on Datameer or will have any force or effect concerning the operation, use or provision of the Service. Furthermore, for the avoidance of doubt, the foregoing will not limit Datameer’s right to directly charge Customer for overages under Section 2.2.
- TERM AND TERMINATION.
9.1 Term and Renewal. Subject to earlier termination as provided below, this Agreement is for the initial Subscription Term as specified in the Order Form, and will be automatically renewed for additional periods of the same duration as the Initial Subscription Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
9.2 Termination for Cause. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Service up to and including the last day on which the Service is provided.
9.3 Effects of Termination. Upon termination or expiration of the Service or this Agreement, Customer’s right to use the Service will immediately terminate, and Customer’s access to the Service maybe be disabled and discontinued. Datameer will have no obligation to retain or maintain any Customer Data that is in its possession for longer than thirty (30) days after termination or expiration of Customer’s subscription to the Service unless otherwise agreed in advance by the parties in writing.
9.4 Suspension of Service. If any charge owing by Customer is thirty (30) days or more overdue, Datameer may, without limiting its other rights and remedies, suspend the applicable Service until such amounts are paid in full, provided that, Datameer will give Customer at least ten (10) days’ prior notice that its payment is overdue before suspending services to Customer. For the avoidance of doubt, suspensions of applicable Service will have no impact on the then-current Subscription Term, its associated payments or the relevant duration of the Service.
9.5 Survival. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1, 4, 5, 6, 7, 8, 9, 10.3, 11, 12 and 13.
- WARRANTY AND DISCLAIMER.
10.1 Datameer Warranty. Datameer warrants that during the Subscription Period, the Service will perform substantially in accordance with the functions specified in the applicable Documentation when used in a manner that conforms to the terms and conditions of this Agreement and the Documentation. Subject to the notice and cure provisions of Section 10.1, Customer’s sole and exclusive remedy and Datameer’s entire liability for a breach of this warranty will be for Datameer to use commercially reasonable efforts to modify the Service to substantially achieve in all respects the functionality described in the applicable Documentation. If Datameer is unable to restore such functionality, Customer will be entitled to terminate the applicable Service and receive a pro-rated refund of the fees prepaid by Customer for the corresponding unused portion of the Subscription Period. The warranties set forth herein are made to and for the benefit of Customer only. This warranty will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services.
10.2 Mutual Warranties. Each party represents and warrants that it will comply with all applicable international, national, state and local laws, ordinances, rules, regulations, and orders, as amended from time to time, in its performance under this Agreement. Each party represents and warrants that: (i) it has full power and authority to execute, enter into and perform this Agreement and the execution and delivery of this Agreement has been duly authorized; and (ii) this Agreement and such party’s performance hereunder will not breach any other agreement to which the party is a party or is abound or violate any obligation owed by such party to any third party.
10.3 DISCLAIMER. EXCEPT FOR WARRANTIES SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT. DATAMEER DOES NOT WARRANT THAT: (A) THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR (B) THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT, THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
11.1 Indemnification by Datameer. Datameer will indemnify and hold Customer harmless from and against any claim brought by a third party against Customer alleging that the Service infringes or misappropriates such third party’s United States patent, copyright, trademark or trade secret. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Datameer, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Datameer, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or is believed by Datameer to be infringing, Datameer may, at its option and expense (i) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain for Customer a license to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service. The provisions of this Section 11.1 state the sole, exclusive and entire liability of Datameer to Customer and constitute Customer’s sole remedy with respect to an intellectual property claim brought by reason of access to or use of a Service by Customer or Users.
11.2 Indemnification by Customer. Customer will indemnify and hold Datameer harmless against any claim (i) arising from or related to use of a Service by Customer or Users in breach of this Agreement; or (ii) alleging that Customer’s use of the Service or Customer Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret. Customer will, with respect to any claim against Datameer that is subject to this Section 11.2, indemnify Datameer for the resulting costs and damages finally awarded against Datameer to such third party by a court of competent jurisdiction or agreed to in settlement.
11.3 Process. The party(ies) seeking indemnification pursuant to this Section 11 (each, an “Indemnified Party” and collectively, the “Indemnified Parties”) will give the other party (the “Indemnifying Party”) prompt notice of each claim for which it seeks indemnification under this Section 11, provided that failure or delay in providing such notice will not release the Indemnifying Party from any obligations hereunder except to the extent that the Indemnifying Party is prejudiced by such failure. The Indemnified Parties will provide the Indemnifying Party with: (i) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission if the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim, such permission not to be unreasonably withheld, delayed or conditioned); and (ii) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
- LIMITATION OF LIABILITY.
12.1 LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ANY OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER AND ITS AFFILIATES TO DATAMEER FOR THE SERVICE GIVING RISING TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE FIRST EVENT WHICH GIVES RISE TO LIABILITY UNDER THIS AGREEMENT; PROVIDED HOWEVER, THIS LIMITATION WILL NOT APPLY TO CUSTOMER’S USE OF THE LIMITED FREE TRIAL SERVICE, AND IN THIS CASE, IF DATAMEER IS DETERMINED TO HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING FROM CUSTOMER’S USE OF THE LIMITED FREE TRIAL SERVICE, THEN DATAMEER’S AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
12.2 WAIVER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY TO THIS AGREEMENT OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER, LOSS OF PROFITS OR REVENUE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR LOSS OF DATA) HOWEVER CAUSED, WHETHER BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS EXCLUSION WILL NOT APPLY TO THE EXTENT THE EXCLUSION IS PROHIBITED BY LAW.
13.1 Severability. If any provision of this Agreement is found to be unenforceable or invalid, 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.
13.2 Nonwaiver. Any failure or delay by either party to exercise any right, power or privilege under this Agreement will not be deemed a waiver of any such right, power or privilege under this Agreement. No waiver by either party of a breach of any term, provision or condition of this Agreement by the other party will constitute a waiver of any succeeding breaching of the same or any other provision hereof. No such waiver will be valid unless executed in writing by the party making the waiver.
13.3 Assignment. Neither party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a party’s rights or obligations under this Agreement, to any third party without the other party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other party, either party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or to its Affiliate.
13.4 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
13.5 Changes to this Agreement. Datameer may modify this Agreement from time to time. Unless otherwise specified by Datameer, changes become effective for Customer upon renewal of the then-current Subscription Term or entering into a new Order Form after the updated version of this Agreement goes into effect. Datameer will use reasonable efforts to notify Customer of the changes through email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
13.6 Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Datameer in any respect whatsoever.
13.7 Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
13.8 Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
13.9 Governing Law. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.
13.10 Publicity. Subject to Customer’s approval of the content, Datameer may issue a press release announcing the execution of this Agreement and/or commencement or extension of the parties’ business relationship, develop written and/or video testimonials, or include Customer’s name and logo on its website. Customer’s approval will not be unreasonably withheld, delayed, or conditioned.
13.11 U.S. Government Rights. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. 2.101, and are being licensed to U.S. government User as commercial computer software subject to the restricted rights described in 48 C.F.R.2.101 and 12.212.