End User License Agreement: DataSeerTM EULA
Updated: December 2, 2020
THE USE OF THE SOFTWARE AS SERVICES IS GOVERNED BY (A) THIS EULA AND (B) DATASEER: MASTER TERMS AND CONDITIONS, AN AGREEMENT BETWEEN YOU (AND/OR THE LEGAL ENTITY ON BEHALF OF WHICH YOU ARE ACCESSING THE SERVICES) AND DATASEER INC. (INCLUSIVE OF AFFILIATES AND SUBSIDIARIES, “DSI”) REFERENCING YOUR ORDER (AS SUBSEQUENTLY MODIFIED OR AMENDED, THE “ORDER”) FOR THE SERVICES (AND (A), (B), AND (C) COLLECTIVELY, THE “AGREEMENT”). FOR ANY INCONSISTENCY BETWEEN (A) AND (B), THE TERMS OF THE EULA WILL CONTROL, PROVIDED, HOWEVER, THAT ACCESS AND USE OF THE SERVICES IS NOT PERMITTED BY ANY PERSON OR PARTY NOT FIRST ACCEPTING THE TERMS AND CONDITIONS OF THIS EULA.
IF YOU ARE ENTERING INTO THIS EULA AS AN INDIVIDUAL, THE TERM “END USER” REFERS TO YOU. IF YOU ARE ENTERING INTO THIS END USER LICENSE AGREEMENT ON BEHALF OF YOUR LEGAL ENTITY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “END USER” WILL REFER TO SUCH LEGAL ENTITY AND YOU JOINTLY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU AT ANY TIME DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS EULA, YOU MAY NOT USE OR ACCESS THE SERVICES (AND/OR MUST IMMEDIATELY CEASE AND DESIST SUCH USAGE AND NOTIFY DSI OF SAME).
DSI AND END USER MAY INDIVIDUALLY BE REFERRED TO AS A “PARTY” AND, COLLECTIVELY, AS THE “PARTIES”. DEFINED TERMS HEREIN WILL APPLY IRRESPECTIVE OF WHETHER ALL CAPS OR TITLE CASE IS USED.
1. Access and Use
If End User is permitted access to the Services under a Free Trial, DSI provides such access to End User on a trial basis free of charge until the earlier of (a) the end of
the Free Trial period as specified in the applicable Order or otherwise set by DSI in its sole discretion, or (b) the Effective Date (whether automatic or otherwise) of any Order. NOTWITHSTANDING ANYTHING CONTAINED HEREIN, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS, WARRANTIES, INDEMNITIES, OR SUPPORT AND MAINTENANCE WHATSOEVER. For the avoidance of doubt, at the end of the Free Trial period, End User is no longer authorized or permitted to use the Services unless and until an Order (automatically or otherwise) provides a start date for the
relevant purchased Services.
1.2 Services and System Control
Except as otherwise expressly provided in the Agreement: (A)DSI has and will retain sole control over the operation, provision, maintenance, and management of the Services; and (B) as between End User and DSI, End User has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the End User Systems as controlled by End User or any an authorized user, including any: (i) information, instructions, or materials provided by any of them to the Services; (ii) results obtained from any use of the Services; and (iii) conclusions, decisions, or actions based on such use.
DSI reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of DSI’s Services to its customers; (ii) the competitive strength of or market for DSI’s Services; and/or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Laws. Without limiting the foregoing, End User may at any time request in writing changes to the Services, which may be undertaken at the sole discretion of DSI.
Except as otherwise expressly permitted in the Agreement, End User will not: (a) reproduce, modify, adapt, or create derivative works of any part of the Services; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the Services to a third party; (c) use the Services for the benefit of any third party other than as part of an End User service or product that has significant contributions provided by the End User or for services bureau purposes; (d) incorporate the Services into a product or service with the intent to sell or commercialize such product or Services to a third party; (e) interfere with any license key mechanism in the Services or otherwise circumvent mechanisms in the Services intended to limit use or prevent unauthorized access; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to the Services, except to the extent expressly required pursuant to Laws (and then only upon advance written notice to DSI); (g) remove or obscure any proprietary or other notices contained in the Services; (h) use the Services to build products competitive to the Services; (i) publicly disseminate information regarding the performance of the Services; (j) export, reexport, transfer, or provide the Services to (or transit through) countries or regions comprehensively sanctioned by the United States, to the governments of these countries, wherever located, to any person or entity identified on the Bureau of Industry and Security’s Denied Persons, Entity, or Unverified lists or the Office of Foreign Assets Control’s Specially Designated Nationals List, to any end user with knowledge or reason to know that the Services will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes, or to any person with knowledge or reason to know that a violation of any sanctions laws may occur; or (k) encourage or assist any third party to do any of the foregoing.
1.5 Unauthorized Use
End User is provided access to the Services, but may not provide or assign access through End User’s Account (as defined in the Terms and Conditions) to third parties. End User will notify DSI immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Services. End User will be held responsible for use of the Services by any third party it allows to access the Services, and any such unauthorized use will be considered a material breach of this End User License Agreement.
DSI is under no obligation to provide support to the End User during any Free Trial. Under alternative terms, the Services incorporates DSI’s standard initial customer support services included during initial set-up at a specified fee and as referenced in the Order (“Initial Set-Up”). For clarity, charges for Initial Set-Up relate to the technical and administrative charges relating to setting up the “Customer Account” and End User Accounts (as defined below), and any non-charged training or guidance provided at that time will not be subject to warranty or covenant. End User and/or Customer may purchase enhanced ad hoc support services separately at DSI’s then-current rates.
In any use of the Services, End User must not remove, obscure, or alter in any way the applicable attribution to DSI on all user interfaces to the Services (e.g., “Powered by DataSeer”) which must remain visible and unchanged unless otherwise permitted or instructed in writing by DataSeer.
1.8 System Requirements
End User is solely responsible for ensuring that its systems or third party systems (including internet access) needed to access the Services meet the requirements specified by DSI. DSI will have no obligations or responsibility under the Agreement for issues caused by End User’s use of any third party hardware, software or communication access not provided by DSI.
2. Services Availability and Data Storage
Subject to the terms and conditions of the Agreement, DSI will use commercially reasonable efforts to make the Services available on a continual basis, provided, however, that DSI is under no obligation to provide Services on any basis whatsoever during a Free Trial. Services may become or remain unavailable due to scheduled downtime and/or due to factors beyond DSI’s control, such as (a) End User’s or its authorized user’s Internet connectivity; (b) a Force Majeure Event; or (c) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by DSI pursuant to the Agreement. Additionally, DSI may prevent access to the Services due in whole or in part to any act or omission by End User or any authorized user/access to or use of the Services by End User or any authorized user, or using End User’s or an authorized user’s access credentials, that does not strictly comply with the Agreement. For clarity, none of the above-mentioned reasons for Services unavailability will be considered a breach of this Agreement.
2.2 Data Storage
Though cloud-based, the Services do not replace the need for the End User to maintain data backups or redundant data archives. DSI is not responsible for the maintenance and storage of End User Data and HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF END USER DATA. Subject to the terms of an applicable Order, End User acknowledges and agrees that DSI has no obligation to retain End User Data subsequent to the termination of this Agreement and that DSI has the right to irretrievably delete and destroy End User Data upon the termination of this Agreement.
DSI has internally published security documentation relating to systems and data security, including (among other things) user authentication; storage and use of End User data; data security; data labelling; and third party tools. This document is available upon written request.
End User has and will retain sole responsibility for: (a) all End User Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of End User or any authorized user in connection with the Services; (c) End User Systems; (d) the security and use of End User’s access credentials; and (e) all access to and use of the Services directly or indirectly by or through the End User Systems or End User access credentials, with or without End User’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
End Users authorized by Customer(as defined in the Order) create individual End User accounts (each, an “End User Account”). Through an End User Account, an End User, if so authorized, may upload, access, download, and use End User Data in a Customer Account subject to the terms of this Agreement.
End User Accounts will have access to Services pursuant to the Agreement for the duration of the Agreement, the termination of access pursuant thereto, or the removal of an End User Account by DSI or Customer, whichever comes first. For the avoidance of doubt, End User will have access to the Services only pursuant to this Agreement and its commitment to its terms and conditions, and will have no legal recourse against DSI or Customer for suspension or denial of access.
6. Proprietary Rights
7. Third Party Services
8. Term and Termination
This Agreement will commence as of the date set forth in the Order, irrespective of whether under Free Trial or otherwise, and will apply to the End User upon acceptance by the End User of the End User License Agreement. Unless earlier terminated as set forth below, this Agreement will remain in effect in perpetuity. All sections of this Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
In the event of a material breach by either party, the non-breaching party will have the right to terminate the Agreement if such material breach has not been cured (a) immediately if during a Free Trial and/or due to an actual or potential violation of Section 1.4, 1.5, and/or 5, or otherwise (b) if such material breach has not been cured within thirty (30) days of written notice from the non-breaching party specifying the breach in detail. The Agreement may also be terminated by either party upon written notice of termination, which termination will take effect thirty (30) days after receipt of such written notice. Upon any termination or expiration of the Agreement, End User’s right to access and use the Services will terminate. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. Warranty Disclaimer
DSI agrees to defend at its expense End User against any third party claim to the extent such claim alleges that the Services infringes or misappropriates any intellectual property right of a third party, and DSI will pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Services is, or in DSI’s sole opinion is likely to become, subject to such a claim, DSI, at its option and expense, may (a) replace the applicable Services with functionally equivalent non-infringing technology; (b) obtain a license for End User’s continued use of the applicable Services; or (c) terminate the Agreement and provide a refund of any pro rata portion of the Fees relating to the remaining period of Service. The foregoing indemnification obligation of DSI will not apply: (1) if the Services is modified by End User; (2) if the Services is combined with other non-DSI products, applications, or processes not authorized by DSI, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; or (4) End User’s failure to use updated or modified Services provided by DSI to avoid infringement or misappropriation. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND ALL OBLIGATIONS OF DSIAND THE EXCLUSIVE REMEDY OF END USER, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS, OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SERVICES.
End User agrees to defend at its expense DSI against any claim brought against DSI by a third party alleging that the End User Data, or any other content or software utilized by End User in connection with its use of the Services, infringes any third party intellectual property right or violates any Laws, and End User will pay all costs and damages finally awarded against DSI by a court of competent jurisdiction as a result of any such claim.