Master Services Agreement | Civis Analytics

Master Services Agreement


BY ACCEPTING THIS MASTER SERVICES AGREEMENT (“AGREEMENT”), EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE (A) TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND (B) THAT YOU ARE OF A LEGAL AGE (AT LEAST 18 YEARS OLD IN MANY JURISDICTIONS) AND LAWFULLY ABLE TO ENTER INTO CONTRACTS.  IF YOU ARE AGREEING TO THESE TERMS OF USE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND THAT ENTITY.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE OUR SERVICES OR THE PLATFORM.  AS USED IN THIS AGREEMENT, “CUSTOMER” MEANS YOU AND THE LEGAL ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT (IF APPLICABLE) AND “COMPANY” MEANS CIVIS ANALYTICS, INC., A DELAWARE CORPORATION.

  1. FREE TRIAL.

If Customer registered on Company’s website for a free trial or otherwise receives access to a free trial, Company will make one or more Services or Platform available to the Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s) or Platform, or (b) the start date of any Order or SOW for paid Services or Platform, or (c) termination by Company in our sole discretion.  The terms of Section 13 of this Agreement apply to all free trials.  Additional trial terms and conditions may appear on the trial registration web page.  Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA CUSTOMER ENTERS INTO THE PLATFORM OR SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE PLATFORM OR SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES OR PLATFORM AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

1. DEFINITIONS.

    1. “Customer Data” means, as between Company and Customer, any and all data owned by Customer or provided to Company by or on behalf of Customer (except when licensed from the Company) that is uploaded or imported into the Platform by or on behalf of Customer or provided to Company by Customer for in connection with Company’s performance of Services to Customer.
    2. “End Users” means Customer’s individual employees authorized to use the Platform.
    3. “Fees” means, individually and collectively, the fees and expenses set forth in each Order and SOW hereunder.
    4. “Implementation” means the Platform configuration and integration Services to be performed by Company pursuant to a separate, signed SOW.
    5. “Intellectual Property Rights” means all forms of proprietary rights, titles, interests, and ownership relating to patents, copyrights, trademarks, trade dresses, trade secrets, know-how, mask works, droit moral (moral rights), and all similar rights of every type that may exist now or in the future in any jurisdiction, including without limitation all applications and registrations therefore and rights to apply for any of the foregoing.
    6. “Order” means a document which is executed by authorized representatives of each party and which may set forth the Platform version subscribed to by Customer, applicable Usage Limitations, the number and identities of the End Users authorized to use the Platform and the Fees due for all of the foregoing.
    7. “Platform” means the data analytics platform hosted and made available by Company as a software-as-a-service into which Company’s customers can upload sets of data and query, analyze and visualize such data.  References to the “Platform” in this Agreement shall be deemed to refer to the specific version of the Platform, including all features and functionality created under SOW(s), subscribed to by Customer pursuant to an Order, and any future updates, features, and functionality that Company may make available to Customer from time-to-time.
    8. “Services” means any services relating to the Platform or Company’s business which Company may agree to perform for Customer hereunder, including (by way of example) configuration services, analytics services, training services, development and provision of custom features or functionality, user interface customizations and new integrations with third party data providers.  Services shall only be provided pursuant to a Statement of Work mutually executed by the parties.
    9. “Statement of Work” or “SOW” means each written agreement for Services to be performed subject to this Agreement which is executed by authorized representatives of each party.
    10. “Usage Limitations” means the Customer Data storage limits, monthly bandwidth caps and other limits and restrictions applicable to Customer’s use of the Platform, as set forth in an Order.
    11. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity

2. SERVICES

    1. Implementation. If the Parties enter into an SOW for Implementation, the Implementation constitutes the performance of Services by Company hereunder.  The Implementation shall be deemed complete on the earlier of: (i) all of the milestones in the SOW being met; (ii) Customer notifying Company that the Implementation is complete; or (iii) Customer commencing use of the Platform.
    2. SOWs.  The parties may agree from time to time that Company shall perform additional Services for Customer pursuant to an SOW.  Each SOW shall identify the following: (i) the nature of the Services; (ii) the deliverables, if any, to be provided by Company to Customer in connection with the Services and the acceptance criteria and process therefor; (iii) a time schedule for estimated performance of Services by Company; and (iv) labor rates and/or amount of payment for Services, including any expenses which are to be reimbursed.  Unless otherwise agreed in writing by both parties, the labor rates delineated in each Statement of Work shall apply to that Statement of Work.  Except to the extent otherwise provided for in an SOW, any deliverables under an SOW that are Platform features or functionality shall, upon payment therefor by Customer under such SOW, constitute part of the Platform made available to Customer hereunder.  Customer’s rights with respect to any tangible deliverables that are provided to Customer shall be as set forth in the applicable SOW.  For the avoidance of doubt, any Platform features or functionality do not constitute Work Product.
    3. Performance of Services.  Customer acknowledges that the Services will be performed on the basis of Company using its reasonable efforts and judgment based on the information available to Company.  To the extent Company utilizes subcontractors in the performance of the Services, it shall remain liable for their performance hereunder.
    4. Customer Resources.  Customer shall provide, maintain and make available to Company, at Customer’s expense and in a timely manner, the following resources, and such other additional resources as are specified in the applicable SOW or as Company may from time to time reasonably request in connection with Company’s performance of the Services: (i) qualified Customer personnel or representatives who will be designated by Customer to consult with Company on a regular basis in connection with the Services and provide Company with documentation or other information necessary to perform the Services; (ii) access to Customer’s premises and appropriate systems and/or workspace for Company personnel at Customer’s premises as necessary for performance of those portions of the Services to be performed at Customer’s premises; and (iii) access to Customer Data, as necessary to perform Services (collectively, the “Customer Resources”).
    5. Effect of Customer Failure or Delay. In the event Customer does not provide Customer Resources in a timely manner (regardless of whether such failure is by Customer or by any third party vendor, supplier, licensor or contractor of Customer), Company’s time for performance of the applicable services may, following written notice to Customer, be extended by the amount of time corresponding to such delay.
    6. Project Management. Each party shall, throughout the Term, maintain within its organization a project manager to serve as such party’s primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each such project manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its project manager has the requisite organizational authority, skill, experience and other qualifications to perform in such capacity. The parties’ project managers will be identified in each SOW. Each party shall use commercially reasonable efforts to maintain the same project manager in place throughout the Term. If either party’s project manager ceases to be employed by such party or such party otherwise wishes to replace its project manager, such party shall promptly name a new project manager by written notice to the other party.
    7. Third Party Materials.  The Services and related deliverables may include or operate in conjunction with Third-Party Materials. “Third Party Materials” means materials and information, in any form or medium, including any software (including open-source software), documents, data, content, specifications, products, equipment or components of or relating to the Services or deliverables that are not proprietary to the Company. For any Third Party Materials that are provided by Company, the Company will obtain the necessary rights, licenses, and permissions to permit the Customer to use the Services and Work Product as contemplated by this Agreement.
    8. Changes. Either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and agree on factors that, at a minimum, include scope of the changes and additional deliverables, commensurate fee increases, time extensions, and pass-through of additional costs and expenses to Customer. If the parties agree on at least the minimum terms listed above, the parties will memorialize the agreement in a written change order or additional SOW signed by both parties and implement all such changes. No changes will be effective unless and until memorialized in a written change order or additional SOW signed by both parties, pursuant to the requirements in Clause 12.8.

3. THE PLATFORM.

    1. Provision of the Platform.  Subject to all terms and conditions of this Agreement, following completion of the Implementation Customer shall have the right to access and use the Platform during the Term solely for purposes of supporting Customer’s internal business operations and solely in the manner enabled by Company and in accordance with all applicable Usage Limitations and documentation.  Company reserves the right to modify and update the features and functionality of the Platform from time to time. Company will provide commercially reasonable notice of material and substantial modifications or updates that may affect the functionality of the Platform. if such modifications or updates materially and adversely affect the functionality of the Platform, Customer may terminate this Agreement, if upon written notice to Company, Company is unable to materially restore functionality within ten (10) business days of receipt of Customer’s written notices describing such material adverse effect and stating Customer’s intent to terminate.  Except for as expressly set forth herein, Customer is solely responsible for purchasing and configuring all hardware, software and services that may be necessary or desirable for Customer’s use of the Platform.  Customer agrees to use the Platform in compliance with all applicable laws, rules and regulations.
    2. Restrictions.  Customer acknowledges that use of the Platform is provided for Customer’s benefit only, and agrees not to use the Platform for the benefit of any third party (including through conducting analysis for a third party).  Customer agrees not to, not to attempt to, nor allow any third party to: (i) copy, distribute, rent, lease, lend, sublicense or transfer the Platform, other than as expressly provided for in an Order, make the Platform available to any third party or use the Platform on a service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Platform or otherwise attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Platform, (iii) create derivative works based on the Platform; (iv) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Platform or during the use and operation thereof; (v) publicly disseminate performance information or analysis (including benchmarks) relating to the Platform; (vi) utilize any software or technology designed to circumvent any license keys or copy protection used in connection with the Platform; (vii) scrape, export, store, or otherwise retain any source code, underlying ideas, algorithms, file formats or programming interfaces of the Platform or (viii) use the Platform to develop a competitive product offering.  Customer may not use any automated means, including agents, robots, scripts, or spiders, to access or manage the Platform, except solely to the extent as may be specifically enabled and authorized by the Company.  The Platform may include maps or other third party content.  Such maps or other third party content may only be used with the Platform in the manner enabled through the Platform, and (without limiting the generality of this Section 3.2) may not be sold, licensed or distributed (whether alone or as part of any collection or product).
    3. Suspension/Termination.  Company may terminate Customer’s access to or use of the Platform and/or terminate this Agreement at any time if: (i) in the sole discretion of Company, such action is necessary to prevent material errors or harm to any system or network, or to limit Company’s liability; or (ii) Customer attempts to access or use the Platform in an unauthorized manner, including without limitation any attempt to gain access to data or information relating to other Company customers or any use that infringes third party Intellectual Property Rights or violates any applicable law, rule or regulation.
    4. Accounts.  Customer is responsible for the activities of any and all persons accessing and using the Platform using any End User’s user name and password.  Customer shall, and shall instruct its End Users to, use all reasonable means to secure user names and passwords, and shall promptly notify Company if it suspects that any user name and password has been compromised.  Each Platform account may only be accessed and used by the specific named End User for whom such account is created (as specified on the Order).  Customer acknowledges that use of a Platform account by any person other than the applicable named End User shall constitute a material breach of this Agreement.  Customer may change the End User authorized under a particular Platform account up to once per calendar quarter upon written notice to Company.
    5. Third Party Services and Modifications.  The Platform may include features or functionality that interoperate with online services operated by third parties (such services, “Third Party Services”), pursuant to agreements between Company and the operators of such Third Party Services (such agreements, “Third Party Agreements” and such operators, “Operators”) or through application programming interfaces or other means of interoperability made generally available by the Operators (“Third Party APIs”) which Company does not control.  Third Party Agreements and Third Party APIs (and the policies, terms and rules applicable to Third Party APIs) may be modified, suspended or terminated at any time.  Any such modification, suspension or termination shall not affect any payment obligations under this Agreement and Company shall have no liability with respect thereto. If such modification, suspension or termination materially and adversely affects the functionality of the Platform, Customer may terminate this Agreement upon written notice to Company if Company is unable to materially restore such functionality within ten (10) business days of receipt of Customer’s written notices describing such material adverse effect and stating Customer’s intent to terminate.  Without limiting the foregoing, Customer is responsible for ensuring that Customer’s use of the Platform in connection with Third Party Services complies with all policies, terms and rules applicable thereto and as provided to Customer by Company.  Additionally, Customer acknowledges that, subject to and consistent with Clause 3.1, (a) Company may change, suspend, modify, or remove (collectively, “Changes”) certain functions and features within the Platform.
    6. Availability.  Company shall be responsible for operating the servers that make the Platform available, and shall use commercially reasonable efforts to maintain availability of the Platform of at least 99.5%, calculated monthly on a per-minute basis.  Customer acknowledges and agrees that the Platform may be unavailable (in whole or in part) from time to time due to: (i) equipment, software or service malfunctions; (ii) maintenance, update or upgrade procedures or repairs; or (iii) causes beyond the control of Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, malicious attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures, and that Company shall not be liable for any unavailability caused by any of the foregoing.  Without limiting the generality of the foregoing, Customer acknowledges that any change to the number of clusters or nodes provisioned for Client’s use of the Platform pursuant to an amended Order shall result in read-only cluster access and reduced Platform functionality for up to two (2) days.
    7. Support.  Provided that Customer timely makes all payments due under this Agreement, Company shall provide technical support to Customer pursuant to an Order.  Such technical support shall consist of answering questions from End Users regarding use of the Platform and any errors within the Platform during Company’s normal business hours.  Customer may submit requests for technical support through e-mail or by phone.  Only the Customer’s designated administrative contact(s) (as named in an Order) (each an “Administrative Contact”) may request technical support.  For clarity and avoidance of doubt, Company will not accept support requests from an End User if that End User is not also an Administrative Contact, and in such instances, the End User should submit its requests to the Administrative Contact, who may then submit the request to Company. Only End Users may request technical support.  Company will use commercially reasonable efforts to respond to each case within forty eight (48) hours and will use commercially reasonable efforts to promptly resolve each case.  Actual resolution time will depend on the nature of the case and the resolution.  A resolution may consist of a fix, workaround or other solution in Company’s reasonable determination. Technical support does not include providing assistance or advice regarding data analytics generally or anything other than use of (or errors within) the Platform, such as answering questions regarding SQL queries, Stata or R.  Any such assistance or advice shall be provided only pursuant to a separate consulting services agreement entered into between the parties.
    8. Control of Customer Data.  Customer acknowledges and agrees that Company will not, and has no obligation to, monitor or edit the Customer Data, and that Customer is solely responsible for the Customer Data, including without limitation, its format, integrity, accuracy, completeness, maintenance, and its compliance with all applicable laws, rules, and regulations, except, however, Company is responsible for maintaining administrative, physical, and technical safeguards for the protection of the security, integrity, and confidentiality of Customer Data hosted by Company.  Company reserves the right to remove any Customer Data which Company becomes aware may violate the terms of this Agreement, any applicable law, rule, or regulation, or infringe, misappropriate or violate any third party Intellectual Property Right or privacy right. Customer agrees that Company may use and disclose Customer Data as follows: (i) Company may use Customer Data as necessary to perform Services; (ii) Company may disclose such Customer Data to its third party service providers as necessary to assist it in providing the Services pursuant to confidentiality agreements that are not materially less protective of the Customer Data than the terms of Section 10 of this Agreement; and (iii) Company may use or disclose such Customer Data as  is necessary to comply with law or legal process, provided, however, Company shall provide prior written notice as soon as reasonably practicable and cooperate with Customer in Customer’s efforts to obtain a protective order.  Company will not use or disclose Customer Data except as permitted in this Agreement or as is otherwise requested or authorized by Customer.
    9. Customer Data.  As between the parties, Customer shall own all right, title and interest in and to Customer Data.  Customer hereby grants Company, solely in order to perform the Services on behalf of Customer, a non-exclusive, worldwide license to use, reproduce, modify, create derivative works of, display, perform and transmit the Customer Data in connection with Company’s operation of the Platform. Company will not share or transmit any Customer Data to any third party without the prior, written consent of Customer.  Customer acknowledges and agrees that Customer Data imported for use within the Platform may, solely for the purpose of performing the Services, be transmitted through Company’s systems and reside on Company’s systems for the Term of this Agreement, provided Customer Data shall not be retained by Company following the Term of this Agreement pursuant to Clause 6.3. Company will use commercially reasonable security measures to prevent unauthorized access to the Customer Data.
    10. Usage Data.  Customer acknowledges and agrees that Company collects measures of Platform usage, performance, and metadata, and may disclose anonymized measures of usage, performance, and metadata.  Customer further agrees that Company shall have the right (a) to create anonymized analyses of Client Data that is combined with data from numerous other clients (“Aggregate Data”), and (b) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”); provided, however, that no Analysis shall identify or permit identification of Customer.  Company shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Platform; provided, however, that Company shall not distribute Aggregate Data and Analyses in a manner that permits identification of Customer or Customer Data.
    11. Changes.  The parties may execute additional Orders to, for example, change the version of the Platform applicable hereunder, add End Users, and change Usage Limitations.  Such additional Orders shall be subject to applicable Fees based on Company’s then-current price sheet. Customer acknowledges that such modifications may require a lead time of fourteen (14) days for Company to implement.  No Order shall be valid unless mutually executed by authorized representatives of the parties.

4. PAYMENT

    1. Fees.  Customer shall pay Company the Fees as set forth in each Order and SOW.  All recurring monthly Fees under an Order shall be invoiced in advance of the applicable month.
    2. Payment Terms.  Unless otherwise stated by the parties in an Order or SOW, Company shall invoice Customer for Fees on a monthly basis.  Customer agrees to pay each invoice within thirty (30) days of the invoice date, provided that recurring monthly fees under an Order must be received by Company prior to the first day of the applicable month regardless of the invoice date.  All payments will be made in U.S. dollars.  Any amounts due Company under this Agreement not received by the date due will be subject to a late fee of 1.5% per month, or the maximum charge permitted by law, whichever is less.  Customer shall pay the amounts due under each invoice without deducting any taxes that may be applicable to such payments.  Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to this Agreement, other than taxes based on Company’s income.

5. OWNERSHIP.  

    1. Platform. As between the parties, Company owns all right, title and interest (including all Intellectual Property Rights) in and to the Platform (including without limitation all underlying source code, algorithms, models, features, or functionality) and any software, technology, materials, data, and information (i) owned by Company prior to the Effective Date, (ii) created, authored, developed, made, conceived, or reduced to practice by Company (including without limitation in connection with the Services) after the Effective Date, or (iii) made accessible to the Customer through the Platform (collectively, the “Platform Materials”). Nothing herein shall be construed to transfer any rights, title or ownership of the Platform, the Platform Materials, or any Company software, technology, materials, information or Intellectual Property Rights to Customer. For avoidance of doubt, subject to the foregoing, Customer shall own all works created by Customer using the Platform that use Customer Data as an input. Customer is not required to provide any ideas, feedback or suggestions regarding any of Company’s products or services (“Feedback”) to Company.  To the extent Customer does provide any Feedback to Company, Customer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Company and acknowledges that Company may freely use, reproduce, modify, distribute, make, have made, sell, offer for sale, import and otherwise exploit in any manner such Feedback without payment of any royalties or other consideration to Customer.
    2. Work Product. Customer agrees and understands that Company delivers written reports, memos, and lists to Customer pursuant to the Services (“Work Product”),. Subject to the foregoing, all Work Product shall be the property of Customer, provided that Customer acknowledges and agrees that all Work Product provided by Company hereunder may incorporate and/or be produced using concepts, processes, approaches, methodologies, know-how, models, tools, data, information, knowledge, experience and other intellectual property rights of Company that (i) existed prior to the development of such Work Product, (ii) was developed or collected in the course of the performance of the Services but which is generally applicable to Company’s business and/or (iii) is unrelated to the Services or was otherwise developed or acquired outside the performance or scope of the Services (collectively, “Company IP”), and that such Company IP is and shall remain the sole property and confidential information of Company.  Upon receipt of payment for the applicable Work Product, Company hereby grants to Customer a non-exclusive, royalty-free, non-transferable, non-sublicensable license under the copyrights in any Company IP embodied in such Work Product to use the Work Product for Customer’s internal business purposes.  For the avoidance of doubt, with the sole exception of the Work Product as provided for in this Section 5, nothing in this Agreement or any SOW shall be construed as transferring or assigning to Customer any ownership interest in the Company IP or in any software code, technology, materials, information or data created or provided by Company
    3. Customer.  As between the parties, Customer owns all right, title and interest (including all Intellectual Property Rights) in and to the Customer Data and any software, technology, materials and information owned by Customer prior to the Effective Date or created, authored, developed, made, conceived or reduced to practice by Customer after the Effective Date.  Nothing herein shall be construed to transfer any rights, title or ownership of the Customer Data or any Customer software, technology, materials, information or Intellectual Property Rights to Company.

6. TERM; TERMINATION

    1. Term.  This Agreement shall be effective as of the Effective Date, and shall continue in full force and effect until the termination of all Orders and SOWs (the “Term”).
    2. Termination.
      • Each Order or SOW may be terminated for convenience by either party as of the last day of the then-effective term of such Order or SOW by delivering written notice of termination to the other party at least 30 days prior to the last day of the then-effective Order or SOW term.  Additionally, either party may terminate an individual Order or SOW in accordance with the remaining termination provisions in this Section 6 or those described in the applicable Order or SOW.  This Agreement shall remain in effect until the termination or expiration of all Orders and SOWs.
      • Either party may terminate this Agreement or any applicable SOW or Order effective immediately if the other party is in material breach of any obligation, representation or warranty hereunder and fails to cure such material breach (if capable of cure) within ten (10) days after receiving written notice of the breach from the non-breaching party.
      • Either party may terminate this Agreement immediately upon written notice at any time if: (i) the other party files a petition for bankruptcy or is adjudicated as bankrupt; (ii) a petition in bankruptcy is filed against the other party and such petition is not removed or resolved within sixty (60) calendar days; (iii) the other party makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to bankruptcy law; (iv) the other party discontinues its business; (v) a receiver is appointed over all or substantially all of the other party’s assets or business; or (vi) the other party is dissolved or liquidated.
    3. Effect of Termination.  All rights and obligations of the parties hereunder shall terminate upon expiration or termination of this Agreement, provided that Sections 1, 3.2, 3.5, 3.8, 3.9, 4 (with respect to accrued but unpaid Fees), 5, 6.3, 8, 9, 10, 11 and 12 shall survive expiration or termination of this Agreement.  Company shall return or destroy to Customer all Customer Data, and shall not retain any Customer Data, provided, however Customer acknowledges that Customer Data may be retained as part of Company’s regular backup procedures and that such retained Customer Data shall only be accessible by a limited number of administrators of Company’s systems. In addition, upon any termination, Customer will pay Company for all conforming Services rendered by Company and deliverables accepted by Customer prior to the effective date of such termination, and will reimburse Company for any out-of-pocket third party expenses incurred by Company in the performance of any SOW which expenses cannot be mitigated by Company through commercially reasonable efforts.

7. REPRESENTATIONS AND WARRANTIES

    1. Mutual.  Each party represents and warrants to the other party that: (i) it has the full power and authority to enter into this Agreement; (ii) the execution of this Agreement and performance of its obligations under this Agreement does not violate any other agreement to which it is a party; and (iii) this Agreement constitutes a legal, valid and binding obligation when executed and delivered.
    2. Customer.  Customer represents and warrants that: (i) it has all rights, title, and interest in and to the Customer Data necessary to its use in connection with the Platform or Services; (ii) it shall not use the Platform, Services, or Work Product in a manner or in connection with any activity that would violate any law, rule or regulation, including those relating to discrimination, privacy, or data protection; and (iii) the Customer Data (including the storage, reproduction, transfer, and use thereof as contemplated under this Agreement) does not and will not (x) violate any state, federal, or local law, rule or regulation, (y) infringe upon the intellectual property or privacy rights of any third parties, or (z) slander, defame, or libel any person or entity.
    3. Company.  Company represents and warrants that it shall perform its obligations under this Agreement in a professional and workmanlike manner. Customer’s sole remedy, and Company’s exclusive liability, with respect to any breach of the representation and warranty set forth in this Section 7.3 is, at Company’s election, (i) Company’s re-performance of the non-compliant Services such that they are compliant or (ii) termination of the applicable SOW to the extent it relates to such non-compliant Services and refund of a proportionate amount of the Fees paid under such SOW to the extent such amount relates to such non-compliant Services.

INDEMNIFICATION

    1. Customer Indemnity.  Customer agrees to, at its own expense, indemnify, hold harmless, defend and/or settle any claim, action, or suit brought by a third party against Company or its directors, officers or employees (“Company Indemnitees”) arising out of or relating to Customer’s negligence, willful misconduct, or breach or alleged breach of any covenant, representation, or warranty of this Agreement (a “Claim”).  Customer will pay those amounts finally awarded by a court of competent jurisdiction against the Company Indemnitees, or subject to the terms of Section 8.3, payable pursuant to a settlement agreement with respect to the Claim.
    2. Company Indemnity.  Company agrees to, at its own expense, defend and/or settle any claim, action or suit brought by a third party against Customer or its Affiliates, or their directors, officers and employees (“Customer Indemnitees”) alleging that the Company’s Services or the Platform infringe such third party’s Intellectual Property Rights (an “IP Claim”), Company will pay those amounts finally awarded by a court of competent jurisdiction against the Customer Indemnitees, or subject to the terms of Section 8.3, payable pursuant to a settlement agreement with respect to the IP Claim.  If Company, in its sole discretion, believes an IP Claim or an adverse judgment in connection with an IP Claim is likely, then Company may, at its option, (a) obtain a license from such third party claimant that allows Customer to continue the use of the Platform, (b) modify the Platform or re-perform the applicable Services so as to be non-infringing, or (c) if neither (a) nor (b) is available to Company on commercially reasonable terms, terminate this Agreement upon written notice to Customer and provide Customer with a pro-rata refund for any unused, prepaid Fees.  Company will have no obligation or liability relating to any IP Claim that: (x) is based on modification or customization of the Platform at the direction of Customer or any third party without the prior written consent of Company; (y) is based on the combination or use of the Platform (or any component of either) with any software, hardware, system, method, device or materials not provided or required by Company; or (z) results from Customer’s use of the Platform in a manner that is inconsistent with its intended use or is in breach of this Agreement.  This Section 8.2 sets forth the entire liability of Company and the sole and exclusive remedy of Customer in the event of any claim that the Platform infringes any third party Intellectual Property Right.
    3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or Section 8.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Claim or IP Claim at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve the Indemnitor of its obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitor may settle a Claim or IP Claim so long as any settlement (i) does not, without Indemnitee’s prior written approval, (x) involve the admission of any wrongdoing by any Indemnitee, (y) restrict any Indemnitee’s future actions, or (z) require any Indemnitee to take any action, including the payment of money, and (ii) includes a full release of the Indemnitees.

9. DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.  COMPANY AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE FUNCTIONALITY PROVIDED BY THE PLATFORM WILL BE CORRECT, UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.  COMPANY DOES NOT WARRANT THE RESULTS OF USE OF THE PLATFORM.

10. CONFIDENTIALITY. Each party shall keep confidential the terms of this Agreement, all information and materials provided or made available by the other party that is marked as confidential or proprietary or (for orally disclosed information) is identified as confidential or proprietary at the time of disclosure and confirmed in writing (including e-mail) as such within fifteen (15) days of the disclosure or which a reasonable person knowledgeable in Customer’s or Company’s industry or the technology sector would recognize as such (“Confidential Information”).  The features, functionality and content of the Platform, any Platform documentation, the Fees charged hereunder and any information regarding planned modifications or updates to the Platform or other Company products and services constitutes Confidential Information of Company.  Each party shall keep and instruct its employees and agents to keep Confidential Information confidential by using at least the same care and discretion as used with that party’s own confidential information, but in no case less than a prudent and reasonable standard of care.  Neither party shall use Confidential Information other than for purposes of performing its obligations hereunder or as authorized by the disclosing party.  Information or materials shall not constitute Confidential Information if it is: (i) in the public domain through no fault of the receiving party, (ii) known to the receiving party prior to the time of disclosure by the disclosing party, (iii) lawfully and rightfully disclosed to the receiving party by a third party on a non-confidential basis, (iv) developed by the receiving party without reference to Confidential Information or (v) required to be disclosed by law or legal process, provided that the receiving party promptly provide notice to the disclosing party of such request or requirement so the disclosing party may seek appropriate protective orders. If any party, its employees or agents breaches or threatens to breach the obligations of this Section 10, the affected party may seek injunctive relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.

11. LIMITATION OF LIABILITY.  EXCEPT WITH RESPECT TO SECTION 8 OR EITHER PARTY’S BREACH OF SECTION 10, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST BUSINESS, REVENUE, OR PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.  EXCEPT WITH RESPECT TO SECTION 8 OR EITHER PARTY’`S BREACH OF SECTION 10, IN NO EVENT WILL EITHER PARTY’S LIABILITY AND DAMAGES UNDER THIS AGREEMENT EXCEED THE SUM OF THE TOTAL FEES PAID TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.  THE PARTIES AGREE THAT THE LIMITATIONS AND DISCLAIMERS OF LIABILITY SET FORTH IN THIS SECTION 11 WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND REGARDLESS OF THE THEORY OF LIABILITY.

12. MISCELLANEOUS

    1. Relationship of the Parties.  The parties are independent contractors with respect to each other.  This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture among the parties hereto, or an employee-employer relationship.  No party shall have any right to obligate or bind any other party in any manner whatsoever.
    2. Non-Solicitation.  The parties acknowledge that Company’s and Customer’s employees are a valuable asset and are difficult to replace.  Accordingly, during the term of this Agreement, neither party will directly solicit as an employee or independent contractor any of the other party’s employees. In the event of a violation of this Section 12.2 by either party, the non-breaching party will be entitled to liquidated damages equal to the compensation paid by the non-breaching party to the applicable employee or contractor during the prior twelve 12 months.
    3. Non-Exclusivity. This Agreement is non-exclusive and does not restrict or prevent Company in any way from (a) entering into similar relationships with third parties and (b) providing similar or identical materials, information, data (excluding Customer Data), products, services, or technologies to other parties.
    4. Third Party Beneficiaries.  The Platform includes certain software licensed from Tableau Software, Inc. (“Tableau”).  Tableau is a third party beneficiary of this Agreement with the right to enforce its terms relating to Tableau software (including Section 3.2) against Customer directly.  Except as expressly set forth in this Agreement, nothing herein shall give, or is intended to give, any rights of any kind to any third parties.
    5. Assignment.  Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign its rights and obligations under this Agreement without the consent of the other party in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction.  This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
    6. Force Majeure.  Except for payment obligations, neither party will be responsible for any failure or delay in its performance under this Agreement due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, internet or telecommunications failures, shortages of or inability to obtain labor, energy, or supplies, war, terrorism, riot, acts of God or governmental action, acts by hackers or other malicious third parties and problems with the Internet generally, and such performance shall be excused to the extent that it is prevented or delayed by reason of any of the foregoing.
    7. Notices.  All notices under the terms of this Agreement shall be given in writing and sent by registered or certified mail, with postage prepaid and return receipt requested, to the addresses noted in the signature section of this Agreement.  All notices shall be presumed to have been given three business days following deposit in the mail as set forth in the foregoing.
    8. Amendments.  An amendment of this Agreement shall be binding upon the parties so long as it is in writing and executed by both parties.  No regular practice or method of dealing between the parties shall modify, interpret, supplement or alter in any manner the express terms of this Agreement.
    9. Construction.  In the event of a conflict between the terms of this Agreement and any Order or SOW, the terms of this Agreement shall control unless the parties explicitly state otherwise in an Order or SOW, and in such instances the terms of such Order or SOW will control only as to the subject matter discussed and only for that Order or SOW. This Agreement shall be fairly interpreted and construed in accordance with its terms and without strict interpretation or construction in favor of or against either party.  Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. Section headings are for reference purposes only, and should not be used in the interpretation hereof.
    10. Severability; Wavier; Counterparts.  If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of this Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.  A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived.  The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.  This Agreement may be signed in counterparts.  Each of them is an original, and all of them constitute one agreement.
    11. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Illinois, without reference to conflicts of laws principles.  The parties agree that the state and federal courts in Cook County, Illinois will have exclusive jurisdiction and venue under this Agreement, and the parties hereby agree to submit to such jurisdiction exclusively.
    12. Entire Agreement.  This Agreement constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof.  Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.
  1. FREE, TRIAL, EVALUATION, PRE-RELEASE AND BETA PRODUCTS AND APPLICATIONS ARE PROVIDED “AS-IS”.  If the Services that Customer is accessing are features, functionality or applications within the Platform that Company gives to Customer on a trial, courtesy or evaluation basis or that is labeled as “Pre-Release,” “Limited Release,” “Beta” or otherwise described as experimental, untested, or not fully functional (“Free Software”), then this section of the Agreement shall also apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supersede such other term(s) and condition(s) with respect to such Free Software, but only to the extent necessary to resolve the conflict. All Free Software is provided as is, without any warranty, indemnity, maintenance or support, express or implied, subject to any statutory rights that cannot be excluded or limited by law. Customer acknowledges that Free Software may contain bugs, errors and other problems that could cause system or other failures and data loss. Customer acknowledges that Company has not promised or guaranteed to Customer that Free Software will be announced or made available to anyone in the future, that Company has no express or implied obligation to Customer to announce or introduce Free Software, and that Company is not obligated to introduce a product similar to or compatible with Free Software or any updates to any Free Software. Accordingly, Customer acknowledges that any use of the Free Software is entirely at Customer’s own risk.

 

Last updated on: 2/16/2017

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