Addendum A
TERMS & CONDITIONS
This Addendum A to that certain Hosted Services Agreement Order Form (“Order Form”) by and between by and between Customer (as identified on the Order Form) and DataSifter, Inc. (“Provider”), contains the complete legal terms and conditions that govern the Order Form and the Services to be provided by Provider to Customer (“Agreement”). This Agreement is entered and made effective as of the date of execution of the Order Form. Any initial-capped terms not explicitly defined in the Order Form shall have the meanings assigned to them in this Agreement.
1. Service
1.1. Access and Use. During the Subscription Period and subject to the terms of this Agreement, Customer may (a) access and use the Service; and (b) use any included Software and Documentation only as needed to access and use the Service, in each case, for its internal business purposes and without any right to prepare derivative works. If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.
1.2. Support. During the Subscription Period, Provider will provide Technical Support as described in the Order Form.
1.3. User Accounts. Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
1.4. Feedback and Usage Data. Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.
1.5. Customer Content. Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.
1.6. Machine Learning. The Product may include features that utilize artificial intelligence or machine learning technologies. Provider shall not use Customer Content to develop, train, or enhance artificial intelligence or machine learning models. Customer Content will be processed solely as necessary to provide and operate the Product and related services for Customer. Customer hereby understands and agrees that (x) due to the nature of artificial intelligence and machine learning technologies, information generated by such features may be incomplete, inaccurate, or misleading and (y) Product features that include the use of artificial intelligence or machine learning models are not a substitute for human judgment or oversight, including by each of Customer’s users.
2. Restrictions & Obligations
2.1. Restrictions on Customer.
(a) Except as expressly permitted by this Agreement, Customer shall not (and shall not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product or any related Intellectual Property Rights; (viii) use the Product with or for any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorized access to anyone else’s networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.
(b) Use of the Product must comply with all Documentation, any Use Limitations and all Applicable Laws.
2.2. Suspension. If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days; (b) breaches Section 2.1 (Restrictions on Customer); or (c) uses the Product in violation of the Agreement, or (d) uses the Product in a way that materially exceeds reasonable or documented usage limits, or negatively impacts the stability or performance of the Product for others, then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only to the extent (a) the nature of the breach or violation is not material or irremediable, and (b) Customer resolves the underlying issue to the sole satisfaction of Provider.
3. Privacy & Security
3.1. Personal Data. The Service is intended for use by US-based customers. Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement (“DPA”) with Provider. If the parties put in place a DPA in connection with this Agreement, each Party will comply with its obligations in the DPA, the terms of the DPA will control each Party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.
3.2. Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by the Order Form or Key Terms.
3.3. Privacy Policy. Provider maintains a Privacy Policy at its website. The Privacy Policy describes how Provider does or may use Customer or User data, and those terms and conditions are incorporated herein by reference.
3.4. Security.
(a) Provider shall implement, maintain, and follow reasonable, industry-standard technical and organizational measures to secure and protect Customer Content provided to the Product in compliance with all Applicable Laws. Customer understands and agrees that the Product as of the Effective Date is hosted by Amazon Web Services (AWS). All Customer Content transmitted to or created using the Product will be stored, processed, and maintained within the broader AWS environment, or the cloud services environment of any other cloud hosting provider subsequently utilized by Provider (the “Hosting Provider”). The Customer Content will be stored, processed and maintained in accordance with the Hosting Provider’s applicable terms and conditions. Provider makes no guarantees as to the availability of the Hosting Provider’s services nor any representations or warranties about the Hosting Provider’s service level agreements, data security practices or operating procedures, including, but not limited to, disaster recovery.
(b) The Hosting Provider used for the Service includes incidental backup procedures for User roles and certain account information, but back-up services are not included with the Product. Provider will have no responsibility for making or retaining back-up copies of Customer Content. In the event of any loss of or damage to Customer Content hosted by or on behalf of Provider, Customer’s sole remedy shall be for Provider to use commercially reasonable efforts to restore such lost or damaged Customer Content from the latest back-up of such Customer Content.
4. Payment & Taxes
4.1. Fees. Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.
4.2. Invoicing. For a Payment Process with invoicing, Provider will send invoices for usage-based Fees and any other Fees in arrears, in each case according to the Payment Process.
4.3. Automatic Payment. For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorizes all such charges.
4.4. Taxes. Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.
4.5. Payment. Customer will pay Provider Fees and taxes in U.S. Dollars, unless the Order Form specifies a different currency, according to the Payment Process. Provider is entitled to add interest at the rate of three percent (3%) per month for any undisputed Fees that are not paid when due.
4.6. Payment Dispute. If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each Party may pursue any remedies available under the Agreement or Applicable Laws.
5. Term & Termination
5.1. Order Form and Agreement. For each Order Form, the Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one Party gives written notice of non-renewal to the other Party before the Non-Renewal Notice Date.
5.2. Terms & Conditions. The Subscription Terms will start on the Effective Date and continue for the longer of one year or until all Order Forms governed by the Subscription Terms have ended.
5.3. Termination. Either Party may terminate the Subscription Terms or an Order Form immediately:
(a) if the other Party fails to cure a material breach of the Subscription Terms or an Order Form following 30 days written notice;
(b) upon notice if the other Party (i) materially breaches the Subscription Terms or an Order Form in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.
5.4. Force Majeure. Either Party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer's obligation to pay Fees accrued prior to termination.
5.5. Effect of Termination. Termination of the Subscription Terms will automatically terminate all Order Forms governed by the Subscription Terms. Upon any expiration or termination:
(a) Customer will no longer have any right to use the Product.
(b) Upon Customer’s request, Provider will delete Customer Content within 60 days.
(c) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
(d) Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes).
5.6. Survival.
(a) The following sections will survive expiration or termination of the Agreement: Section 1.4 (Feedback and Usage Data), Section 1.6 (Machine Learning), Section 2.1 (Restrictions on Customer), Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination, Section 5.5 (Effect of Termination), Section 5.6 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of Rights), Section 12 (General Terms), Section 13 (Definitions), and the portions of a Cover Page referenced by these sections.
(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.
6. Representations & Warranties
6.1. Mutual. Each Party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties (if any).
6.2. From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement. Additionally, further to Section 2.1(a), customer represents and warrants that it, all Users, and anyone submitting Customer Content shall not submit Customer Content that contains instructions, prompts, viruses, trojan horses, malware, or the like that may cause damage to Products or the network environment of Provider or its Product hosts.
6.3. From Provider. Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Service during the Subscription Period.
6.4. Provider Warranty Remedy. If Provider breaches the warranty in Section 6.3 (Representations & Warranties from Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Service. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s sole remedies if Provider does not meet the warranty in Section 6.3 (Representations & Warranties from Provider).
7. Disclaimer of Warranties
7.1. Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6 (Representations & Warranties) do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6 (Representations & Warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.
8. Limitation of Liability
8.1. Liability Cap. Except as provided in Section 8.4 (Exceptions), each Party’s total cumulative liability for all claims arising out of or relating to this Agreement will not be more than the General Cap Amount.
8.2. Damages Waiver. Except as provided in Section 8.4 (Exceptions), under no circumstances will either Party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the Party is informed of the possibility of this type of damage in advance.
8.3. Applicability. The limitations and waivers contained in Sections 8.1 (Liability Cap) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.
8.4. Exceptions. Section 8.1 (Liability Cap) does not apply to a claim under Section 9 (Indemnification) or Section 10 (Confidentiality), with such claims being subject to the Greater Cap Amount. Section 8.2 (Damages Waiver) does not apply to a breach of Section 2.1(a) (Restrictions & Obligations). Nothing in this Agreement will limit, exclude, or restrict a Party's liability to the extent prohibited by Applicable Laws.
9. Indemnification
9.1. Protection by Provider. Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claims.
9.2. Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claims.
9.3. Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
9.4. Changes to Product. If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.
9.5. Exclusions.
(a) Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim.
(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.
9.6. Exclusive Remedy. This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.
10. Confidentiality
10.1. Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
10.2. Exclusions. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
10.3. Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
10.4. Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).
11. Reservation of Rights
11.1. Except for the limited license to use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product and any improvements or enhancements thereto, including all Intellectual Property Rights therein, whether developed before or after the Effective Date. Except for the limited rights in Section 1.5 (Customer Content) and 1.6 (Machine Learning), Customer retains all right, title, and interest in and to the Customer Content, including all Intellectual Property Rights therein.
12. General Terms
12.1. Entire Agreement. This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer's use of the Product unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say.
12.2. Modifications, Severability, and Waiver. Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each Party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a Party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that Party of the term, option, or right.
12.3. Governing Law and Chosen Courts. The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The Parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each Party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
12.4. Injunctive Relief. Despite Section 12.3 (Governing Law and Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a Party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a Party’s intellectual property rights, the non-breaching or non-violating Party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
12.5. Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a Party.
12.6. Assignment. Neither Party may assign any rights or obligations under this Agreement without the prior written consent of the other Party. However, either Party may assign this Agreement upon notice if the assigning Party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
12.7. Beta Products. If Provider gives Customer access to a Beta Product, the Beta Product is provided “AS IS” and Section 6.3 (Representations & Warranty From Provider) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider's discretion with or without notice.
12.8. Logo Rights. Provider may identify Customer and use Customer's name and logo in marketing to identify Customer as a user of Provider's products and services.
12.9. Notices. Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
12.10. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers. Neither Party is authorized to bind the other to any liability or obligation.
12.11. No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.
12.12. Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.
12.13. Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate this Agreement immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.
12.14. Government Rights. The Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.
12.15. Anti-Bribery. Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
12.16. Titles and Interpretation. Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.
12.17. Signature. This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.
13. Definitions.
13.1. “Additional Warranties” means any explicit warranties offered and agreed to by either Party on a Cover Page.
13.2. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a Party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
13.3. “Agreement” means the Order Form between Provider and Customer as governed by the Subscription Terms.
13.4. “Applicable Data Protection Laws” means the Applicable Laws that govern how the Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
13.5. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
13.6. “Beta Product” means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.
13.7. “Chosen Courts” means a state or federal court, located within Santa Clara County, California, having jurisdiction over the subject matter of a dispute to be litigated.
13.8. “Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Cover Page. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product, including the Product architecture, pricing, and technical specifications.
13.9. “Cover Page” means a document that is signed or electronically accepted by the parties, incorporates these Standard Terms or is governed by the Subscription Terms, and identifies Provider and Customer. A Cover Page may include an Order Form, Key Terms, or both.
13.10. “Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.
13.11. “Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback and Usage Data.
13.12. “Customer Covered Claims” means any action, proceeding, or claim that (a) the Customer Content, when used according to the Subscription Terms, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights; or (b) results from Customer’s breach or alleged breach of Section 2.1 (Restrictions on Customer).
13.13. “Discloser” means a Party to this Agreement when the Party is providing or disclosing Confidential Information to the other Party.
13.14. “Documentation” means the usage manuals and guidance materials for the Service or Software that are made available by Provider.
13.15. “Embargoed Country” means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.
13.16. “Feedback” means suggestions, feedback, or comments about the Product or related offerings.
13.17. "Fees" means the applicable amounts described in an Order Form.
13.18. “Force Majeure Event” means an unforeseen event with significant impact on a Party’s business operations that are outside of the affected Party’s reasonable control, where the affected Party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, wildfire, war, pandemic, riot, act of terrorism, or public utility or internet failure.
13.19. “General Cap Amount” means the Fees paid by Customer during the preceding twelve (12) month period.
13.20. “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
13.21. “Governing Law” means the laws of the state of California, United States of America.
13.22. “Greater Cap Amount” means two million dollars (US$2,000,000).
13.23. “Hosting Provider” means the cloud host provider for the Product utilized by Provider, currently Amazon Web Services.
13.24. “Indemnifying Party” means a Party to this Agreement when the Party is providing protection for a particular Covered Claim.
13.25. “Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets, know-how rights, design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
13.26. "Key Terms” means a Cover Page that includes the key legal details and for this Agreement. The Key Terms may include details about Covered Claims, set the Governing Law, or contain other details about this Agreement.
13.27. “Non-Renewal Notice Date” means the last date prior to the end of a Subscription Period, specified in an Order Form, by which either Party may inform the other Party regarding non-renewal of the relevant Service.
13.28. “Notice Address” means the contact information provided for a Party in the Cover Page.
13.29. "OFAC" means the United States Department of Treasury's Office of Foreign Assets Control.
13.30. “Order Form” means a Cover Page or other document that includes the key business details for this Agreement that are not defined in the Subscription Terms. An Order Form includes the policies and documents referenced in or attached to the Order Form. An Order Form may include details about the level of access and use granted to the Service, length of Subscription Period, or other details about the Product.
13.31. “Payment Process” means the process for Customer submitting payment to Provider as designated on the Order Form
13.32. “Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.
13.33. “Privacy Policy” means that certain policy concerning data protection and data privacy retrievable at https://datasifter.io/privacy-policy as updated from time to time
13.34. "Product” means the Service, Software, and Documentation.
13.35. “Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (HIPAA); (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
13.36. “Protected Party” means a Party to this Agreement when the Party is receiving the benefit of protection for a particular Covered Claim.
13.37. “Provider Covered Claims” means any action, proceeding, or claim that the Service, when used by Customer according to the Subscription Terms, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights.
13.38. “Recipient” means a Party to this Agreement when the Party receives Confidential Information from the other Party.
13.39. “Service” means the product or online service described in the Order Form.
13.40. “Software” means the client-side software functionality, applications or tools made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.
13.41. "Standard Terms" means these terms and conditions, which are derived from Common Paper Service Agreement Standard Terms Version 2.0 (made available under a Creative Commons CC-BY-4.0 license).
13.42. “Subscription Terms” means these Standard Terms, the Key Terms between Provider and Customer, and any policies and documents referenced in or attached to the Key Terms.
13.43. “Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.
13.44. “Use Limitations” mean any restrictions, guidelines or conditions on use or other engagement with the Product that may be specified in the Documentation, Cover Page or related document made available to Customer.
13.45. “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.
Addendum A
TERMS & CONDITIONS
This Addendum A to that certain Hosted Services Agreement Order Form (“Order Form”) by and between by and between Customer (as identified on the Order Form) and DataSifter, Inc. (“Provider”), contains the complete legal terms and conditions that govern the Order Form and the Services to be provided by Provider to Customer (“Agreement”). This Agreement is entered and made effective as of the date of execution of the Order Form. Any initial-capped terms not explicitly defined in the Order Form shall have the meanings assigned to them in this Agreement.
1. Service
1.1. Access and Use. During the Subscription Period and subject to the terms of this Agreement, Customer may (a) access and use the Service; and (b) use any included Software and Documentation only as needed to access and use the Service, in each case, for its internal business purposes and without any right to prepare derivative works. If a Customer Affiliate enters a separate Order Form with Provider, the Customer’s Affiliate creates a separate agreement between Provider and that Affiliate, where Provider’s responsibility to the Affiliate is individual and separate from Customer and Customer is not responsible for its Affiliates’ agreement.
1.2. Support. During the Subscription Period, Provider will provide Technical Support as described in the Order Form.
1.3. User Accounts. Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
1.4. Feedback and Usage Data. Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.
1.5. Customer Content. Provider may copy, display, modify, and use Customer Content only as needed to provide and maintain the Product and related offerings. Customer is responsible for the accuracy and content of Customer Content.
1.6. Machine Learning. The Product may include features that utilize artificial intelligence or machine learning technologies. Provider shall not use Customer Content to develop, train, or enhance artificial intelligence or machine learning models. Customer Content will be processed solely as necessary to provide and operate the Product and related services for Customer. Customer hereby understands and agrees that (x) due to the nature of artificial intelligence and machine learning technologies, information generated by such features may be incomplete, inaccurate, or misleading and (y) Product features that include the use of artificial intelligence or machine learning models are not a substitute for human judgment or oversight, including by each of Customer’s users.
2. Restrictions & Obligations
2.1. Restrictions on Customer.
(a) Except as expressly permitted by this Agreement, Customer shall not (and shall not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product or any related Intellectual Property Rights; (viii) use the Product with or for any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorized access to anyone else’s networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights.
(b) Use of the Product must comply with all Documentation, any Use Limitations and all Applicable Laws.
2.2. Suspension. If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days; (b) breaches Section 2.1 (Restrictions on Customer); or (c) uses the Product in violation of the Agreement, or (d) uses the Product in a way that materially exceeds reasonable or documented usage limits, or negatively impacts the stability or performance of the Product for others, then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only to the extent (a) the nature of the breach or violation is not material or irremediable, and (b) Customer resolves the underlying issue to the sole satisfaction of Provider.
3. Privacy & Security
3.1. Personal Data. The Service is intended for use by US-based customers. Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement (“DPA”) with Provider. If the parties put in place a DPA in connection with this Agreement, each Party will comply with its obligations in the DPA, the terms of the DPA will control each Party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.
3.2. Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product unless authorized by the Order Form or Key Terms.
3.3. Privacy Policy. Provider maintains a Privacy Policy at its website. The Privacy Policy describes how Provider does or may use Customer or User data, and those terms and conditions are incorporated herein by reference.
3.4. Security.
(a) Provider shall implement, maintain, and follow reasonable, industry-standard technical and organizational measures to secure and protect Customer Content provided to the Product in compliance with all Applicable Laws. Customer understands and agrees that the Product as of the Effective Date is hosted by Amazon Web Services (AWS). All Customer Content transmitted to or created using the Product will be stored, processed, and maintained within the broader AWS environment, or the cloud services environment of any other cloud hosting provider subsequently utilized by Provider (the “Hosting Provider”). The Customer Content will be stored, processed and maintained in accordance with the Hosting Provider’s applicable terms and conditions. Provider makes no guarantees as to the availability of the Hosting Provider’s services nor any representations or warranties about the Hosting Provider’s service level agreements, data security practices or operating procedures, including, but not limited to, disaster recovery.
(b) The Hosting Provider used for the Service includes incidental backup procedures for User roles and certain account information, but back-up services are not included with the Product. Provider will have no responsibility for making or retaining back-up copies of Customer Content. In the event of any loss of or damage to Customer Content hosted by or on behalf of Provider, Customer’s sole remedy shall be for Provider to use commercially reasonable efforts to restore such lost or damaged Customer Content from the latest back-up of such Customer Content.
4. Payment & Taxes
4.1. Fees. Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.
4.2. Invoicing. For a Payment Process with invoicing, Provider will send invoices for usage-based Fees and any other Fees in arrears, in each case according to the Payment Process.
4.3. Automatic Payment. For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorizes all such charges.
4.4. Taxes. Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.
4.5. Payment. Customer will pay Provider Fees and taxes in U.S. Dollars, unless the Order Form specifies a different currency, according to the Payment Process. Provider is entitled to add interest at the rate of three percent (3%) per month for any undisputed Fees that are not paid when due.
4.6. Payment Dispute. If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each Party may pursue any remedies available under the Agreement or Applicable Laws.
5. Term & Termination
5.1. Order Form and Agreement. For each Order Form, the Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one Party gives written notice of non-renewal to the other Party before the Non-Renewal Notice Date.
5.2. Terms & Conditions. The Subscription Terms will start on the Effective Date and continue for the longer of one year or until all Order Forms governed by the Subscription Terms have ended.
5.3. Termination. Either Party may terminate the Subscription Terms or an Order Form immediately:
(a) if the other Party fails to cure a material breach of the Subscription Terms or an Order Form following 30 days written notice;
(b) upon notice if the other Party (i) materially breaches the Subscription Terms or an Order Form in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.
5.4. Force Majeure. Either Party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer's obligation to pay Fees accrued prior to termination.
5.5. Effect of Termination. Termination of the Subscription Terms will automatically terminate all Order Forms governed by the Subscription Terms. Upon any expiration or termination:
(a) Customer will no longer have any right to use the Product.
(b) Upon Customer’s request, Provider will delete Customer Content within 60 days.
(c) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
(d) Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes).
5.6. Survival.
(a) The following sections will survive expiration or termination of the Agreement: Section 1.4 (Feedback and Usage Data), Section 1.6 (Machine Learning), Section 2.1 (Restrictions on Customer), Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination, Section 5.5 (Effect of Termination), Section 5.6 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of Rights), Section 12 (General Terms), Section 13 (Definitions), and the portions of a Cover Page referenced by these sections.
(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.
6. Representations & Warranties
6.1. Mutual. Each Party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties (if any).
6.2. From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement. Additionally, further to Section 2.1(a), customer represents and warrants that it, all Users, and anyone submitting Customer Content shall not submit Customer Content that contains instructions, prompts, viruses, trojan horses, malware, or the like that may cause damage to Products or the network environment of Provider or its Product hosts.
6.3. From Provider. Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Service during the Subscription Period.
6.4. Provider Warranty Remedy. If Provider breaches the warranty in Section 6.3 (Representations & Warranties from Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Service. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, are Customer’s sole remedies if Provider does not meet the warranty in Section 6.3 (Representations & Warranties from Provider).
7. Disclaimer of Warranties
7.1. Provider makes no guarantees that the Product will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. The warranties in Section 6 (Representations & Warranties) do not apply to any misuse or unauthorized modification of the Product, nor to any product or service provided by anyone other than Provider. Except for the warranties in Section 6 (Representations & Warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.
8. Limitation of Liability
8.1. Liability Cap. Except as provided in Section 8.4 (Exceptions), each Party’s total cumulative liability for all claims arising out of or relating to this Agreement will not be more than the General Cap Amount.
8.2. Damages Waiver. Except as provided in Section 8.4 (Exceptions), under no circumstances will either Party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the Party is informed of the possibility of this type of damage in advance.
8.3. Applicability. The limitations and waivers contained in Sections 8.1 (Liability Cap) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.
8.4. Exceptions. Section 8.1 (Liability Cap) does not apply to a claim under Section 9 (Indemnification) or Section 10 (Confidentiality), with such claims being subject to the Greater Cap Amount. Section 8.2 (Damages Waiver) does not apply to a breach of Section 2.1(a) (Restrictions & Obligations). Nothing in this Agreement will limit, exclude, or restrict a Party's liability to the extent prohibited by Applicable Laws.
9. Indemnification
9.1. Protection by Provider. Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claims.
9.2. Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claims.
9.3. Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
9.4. Changes to Product. If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Product; (b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or (c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid Fees for the remainder of the Subscription Period.
9.5. Exclusions.
(a) Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Product, including use in violation of this Agreement; (iii) use of the Product in combination with items not provided by Provider; or (iv) use of an old version of the Product where a newer release would avoid the Provider Covered Claim.
(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.
9.6. Exclusive Remedy. This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.
10. Confidentiality
10.1. Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
10.2. Exclusions. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
10.3. Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
10.4. Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).
11. Reservation of Rights
11.1. Except for the limited license to use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product and any improvements or enhancements thereto, including all Intellectual Property Rights therein, whether developed before or after the Effective Date. Except for the limited rights in Section 1.5 (Customer Content) and 1.6 (Machine Learning), Customer retains all right, title, and interest in and to the Customer Content, including all Intellectual Property Rights therein.
12. General Terms
12.1. Entire Agreement. This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer's use of the Product unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say.
12.2. Modifications, Severability, and Waiver. Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each Party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a Party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that Party of the term, option, or right.
12.3. Governing Law and Chosen Courts. The Governing Law will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The Parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts and each Party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
12.4. Injunctive Relief. Despite Section 12.3 (Governing Law and Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a Party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a Party’s intellectual property rights, the non-breaching or non-violating Party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
12.5. Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a Party.
12.6. Assignment. Neither Party may assign any rights or obligations under this Agreement without the prior written consent of the other Party. However, either Party may assign this Agreement upon notice if the assigning Party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.
12.7. Beta Products. If Provider gives Customer access to a Beta Product, the Beta Product is provided “AS IS” and Section 6.3 (Representations & Warranty From Provider) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider's discretion with or without notice.
12.8. Logo Rights. Provider may identify Customer and use Customer's name and logo in marketing to identify Customer as a user of Provider's products and services.
12.9. Notices. Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
12.10. Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers. Neither Party is authorized to bind the other to any liability or obligation.
12.11. No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.
12.12. Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.
12.13. Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate this Agreement immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.
12.14. Government Rights. The Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.
12.15. Anti-Bribery. Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
12.16. Titles and Interpretation. Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.
12.17. Signature. This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.
13. Definitions.
13.1. “Additional Warranties” means any explicit warranties offered and agreed to by either Party on a Cover Page.
13.2. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a Party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
13.3. “Agreement” means the Order Form between Provider and Customer as governed by the Subscription Terms.
13.4. “Applicable Data Protection Laws” means the Applicable Laws that govern how the Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
13.5. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
13.6. “Beta Product” means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.
13.7. “Chosen Courts” means a state or federal court, located within Santa Clara County, California, having jurisdiction over the subject matter of a dispute to be litigated.
13.8. “Confidential Information” means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as “confidential”, “proprietary”, or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Cover Page. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product, including the Product architecture, pricing, and technical specifications.
13.9. “Cover Page” means a document that is signed or electronically accepted by the parties, incorporates these Standard Terms or is governed by the Subscription Terms, and identifies Provider and Customer. A Cover Page may include an Order Form, Key Terms, or both.
13.10. “Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.
13.11. “Customer Content” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback and Usage Data.
13.12. “Customer Covered Claims” means any action, proceeding, or claim that (a) the Customer Content, when used according to the Subscription Terms, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights; or (b) results from Customer’s breach or alleged breach of Section 2.1 (Restrictions on Customer).
13.13. “Discloser” means a Party to this Agreement when the Party is providing or disclosing Confidential Information to the other Party.
13.14. “Documentation” means the usage manuals and guidance materials for the Service or Software that are made available by Provider.
13.15. “Embargoed Country” means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.
13.16. “Feedback” means suggestions, feedback, or comments about the Product or related offerings.
13.17. "Fees" means the applicable amounts described in an Order Form.
13.18. “Force Majeure Event” means an unforeseen event with significant impact on a Party’s business operations that are outside of the affected Party’s reasonable control, where the affected Party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, wildfire, war, pandemic, riot, act of terrorism, or public utility or internet failure.
13.19. “General Cap Amount” means the Fees paid by Customer during the preceding twelve (12) month period.
13.20. “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
13.21. “Governing Law” means the laws of the state of California, United States of America.
13.22. “Greater Cap Amount” means two million dollars (US$2,000,000).
13.23. “Hosting Provider” means the cloud host provider for the Product utilized by Provider, currently Amazon Web Services.
13.24. “Indemnifying Party” means a Party to this Agreement when the Party is providing protection for a particular Covered Claim.
13.25. “Intellectual Property Rights” means all patent rights, copyrights, trademark rights, rights in trade secrets, know-how rights, design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
13.26. "Key Terms” means a Cover Page that includes the key legal details and for this Agreement. The Key Terms may include details about Covered Claims, set the Governing Law, or contain other details about this Agreement.
13.27. “Non-Renewal Notice Date” means the last date prior to the end of a Subscription Period, specified in an Order Form, by which either Party may inform the other Party regarding non-renewal of the relevant Service.
13.28. “Notice Address” means the contact information provided for a Party in the Cover Page.
13.29. "OFAC" means the United States Department of Treasury's Office of Foreign Assets Control.
13.30. “Order Form” means a Cover Page or other document that includes the key business details for this Agreement that are not defined in the Subscription Terms. An Order Form includes the policies and documents referenced in or attached to the Order Form. An Order Form may include details about the level of access and use granted to the Service, length of Subscription Period, or other details about the Product.
13.31. “Payment Process” means the process for Customer submitting payment to Provider as designated on the Order Form
13.32. “Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.
13.33. “Privacy Policy” means that certain policy concerning data protection and data privacy retrievable at https://datasifter.io/privacy-policy as updated from time to time
13.34. "Product” means the Service, Software, and Documentation.
13.35. “Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (HIPAA); (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
13.36. “Protected Party” means a Party to this Agreement when the Party is receiving the benefit of protection for a particular Covered Claim.
13.37. “Provider Covered Claims” means any action, proceeding, or claim that the Service, when used by Customer according to the Subscription Terms, violates, misappropriates, or otherwise infringes upon anyone else’s intellectual property or other proprietary rights.
13.38. “Recipient” means a Party to this Agreement when the Party receives Confidential Information from the other Party.
13.39. “Service” means the product or online service described in the Order Form.
13.40. “Software” means the client-side software functionality, applications or tools made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.
13.41. "Standard Terms" means these terms and conditions, which are derived from Common Paper Service Agreement Standard Terms Version 2.0 (made available under a Creative Commons CC-BY-4.0 license).
13.42. “Subscription Terms” means these Standard Terms, the Key Terms between Provider and Customer, and any policies and documents referenced in or attached to the Key Terms.
13.43. “Usage Data” means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.
13.44. “Use Limitations” mean any restrictions, guidelines or conditions on use or other engagement with the Product that may be specified in the Documentation, Cover Page or related document made available to Customer.
13.45. “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account.