DataSeerTM Master Terms & Conditions
Updated: February 17, 2022
IF YOU DO NOT HAVE SUCH BINDING AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE MASTER TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THE ORDER AND MAY NOT USE OR ACCESS THE SERVICES (AS DEFINED BELOW) AND FURTHERMORE MUST IMMEDIATELY CEASE AND DESIST OF ANY UNAUTHORIZED USAGE AND NOTIFY DSI OFSAME. DEFINED TERMS HEREIN WILL APPLY IRRESPECTIVE OF WHETHER ALL CAPS OR TITLE CASE IS USED.
Customer and DataSeer, Inc. (“DSI”, each a “party” and, collectively, “parties”) hereby agree as follows:
These Master Terms and Conditions will apply to Customer’s use of DSI’s DataSeerTM service ordered pursuant to a DSI-ordering document or platform (inclusive of free trials, “Order”), which will include any software, documentation, or data provided in connection therewith (and including any updates, revisions, or modifications thereto after the Order is signed by the parties, hereinafter collectively referred to as “Services”).
2. Order of Precedence
These Master Terms and Conditions, the End User License Agreements and/or Orders (as subsequently modified or amended, collectively referred to as this “Agreement”) represent the parties’ entire understanding regarding the Services and will control over any different or additional terms of any non-DSI purchase order or non-DSI ordering document, and, to the extent contradictory and/or not compatible, no terms included in any such non-DSI purchase order or other non-DSI ordering document will apply to the Services. In the event of a conflict between these Master Terms and Conditions, the End User License Agreement and/or an Order, the terms of the Order and/or End User License Agreements (as applicable) will control. All capitalized terms not defined herein will have the meanings attributed in the Order or the End User License Agreement. To the extent that, in the provision of the Services, DSI processes any personal data contained in Customer Data (as defined in Section 5.1(c)) that is subject to the European Union General Regulation 2016/679 and/or other data privacy-related regulations, the terms of DSI’s Data Processing Addendum, available upon request and hereby incorporated by reference, will apply and the parties agree to comply with such terms.
3. Right to Use the Services
Pursuant to the applicable Order, DSI grants to Customer a non-exclusive, non-transferable, worldwide right (i) to access and use the Services subject to the terms of this Agreement and, unless Customer is an individual, (ii) to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, affiliates, agents or contractors (“End Users”), to access and use the Services subject to the terms of this Agreement. An Order may define specific usage rights (“Usage Rights”), and, if applicable, Customer will at all times ensure that its use does not exceed its Usage Rights. If such Order does not define Usage Rights, Customer will be limited to one-thousand (1000) documents processed per End User per month, and additional pro rata charges will apply to any exceeding of this threshold.
4. Usage Restrictions and Representations for Services
Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure of the Services or any software (except to the extent such restrictions are contrary to applicable law); (ii) modify, translate, or create derivative works based on the Services or software (except to the extent expressly permitted by DSI or authorized within the Services); (iii) use the Services for time sharing or service bureau purposes or otherwise for the benefit of a third party or outside the scope of the rights provided herein; (iv) remove any proprietary notices or labels from the Services; (v) use the Services outside of the scope of the rights granted herein, and/or (vi) use the Services for any unlawful purpose.
DSI may immediately suspend Customer’s password, account, and access to the Services if (i) DSI fails to receive a payment due, at any time upon or after ten (10) business days subsequent to DSI providing Customer with notice of such failure; or (ii) DSI reasonably suspects that Customer has violated or will violate the Agreement. Any suspension by DSI of the Services under the preceding sentence will not relieve Customer of its payment obligations under this Agreement.
5. Intellectual Property
For purposes of this Agreement:
- “App” means a software application that provides Services and is designed to help solve business problems built to interact with Customer Data, as modified from time to time
- “DSI Technology” means the Services, and the App, and all improvements or modifications thereto (including improvements or modifications based on suggestions and feedback provided by Customer and General Learnings).
- “Customer Data” means data submitted by or on behalf of Customer for deployment and use through the Services, including without limitation for the purpose of training or improving DSI Technology.
- “Excluded Content” means DSI Technology and any deliverables or items provided by DSI other than Customer Data.
- “General Learnings” means generic concepts, expertise, methods, techniques, or skills gained or learned by or on behalf of DSI during the course of providing the Services to the extent obtained by DSI’s personnel.
DSI will own and retain all rights, title, and interest in and to DSI Technology and General Learnings (“DSI Content”). DSI hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use any DSI Content solely in connection with the permitted use of the Services.
Customer will retain all right, title, and interest in and to Customer Data that Customer submits or provides in the course of using the Services (collectively, “Customer Content”). For the avoidance of doubt, Customer will have no right, title and/or interest in any ExcludedContent. Customer will be solely responsible for;(i) obtaining all necessary consents from third parties to permit the use of the Customer Content, whether in connection with the Services or otherwise, (ii) the accuracy, quality, content and legality of the Customer Content, (iii) the means by which the Customer Content is acquired from third parties, (iv) its End Users’ compliance with the terms of this Agreement and the uploading of Customer Content, and (v) the transfer of Customer Content or any data resulting from the use of the Services outside of the Services. Except to the extent Customer or any End Users make any Customer Content accessible to other users or third parties through the Services, at Customer’s direction, Customer Content will be deemed to be Customer Confidential Information pursuant to Section 10 below.
6. Billing and Payment
Customer will pay DSI for the “User License” (as defined and described in the Order and/or End User License Agreement) in accordance with the terms therein (the “Fees”), and Customer hereby authorizes DSI to bill through an invoice. DSI reserves the right to unilaterally determine and modify its pricing, provided, however, that where an Order is in effect, the pricing shall remain as agreed for the Order Term in such Order. Unless otherwise indicated, Customer will pay the Fees described on an invoice within thirty (30) calendar days of the receipt of such invoice. At DSI’s sole discretion, late unpaid Fees are subject to either or both of (a) suspension of rights under Section 4.3 and/or (b) a finance charge of 1.5 percentage points per month, or the maximum permitted by law, whichever is lower. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added (i.e. VAT) or sales or use taxes (collectively, “Taxes”) and Customer is responsible for paying any Taxes associated with its purchases hereunder. If DSI has the legal obligation to pay, collect and/or withhold Taxes for which Customer is responsible under this Section 6, DSI will invoice the Customer for such amount unless a valid tax exemption certificate is provided.
7. Term and Termination
This Agreement will commence as of the date set forth in the first Order and will remain in full force and effect in perpetuity unless earlier terminated (a) at the end of a free trial with no extension or paid subscription, (b) pursuant to applicable Order, or (c) as set forth in Section 7.2 below. Any such termination will not relieve Customer of its obligation to pay all Fees due or accrued as of the date of such termination. 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.
Upon any termination or expiration of an Order, Customer’s right to access and use the Services covered by that Order will terminate. Notwithstanding the foregoing, DSI will generally endeavor to make Customer Data available to Customer for electronic retrieval, at Customer’s election and expense, for a period of thirty (30) days following any termination or expiration of the applicable Order, provided, however, that Customer acknowledges and agrees that DSI has no obligation to retain Customer Data and that DIS will have the right to irretrievably delete and destroy Customer Data following the termination or expiration of the applicable Order.
8. Representations, Disclaimer of Warranties, Indemnities
Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement, and that the individual signing on behalf of the respective party has been duly authorized to bind the respective party to this Agreement.
Customer represents and warrants that Customer and any End Users on Customer’s behalf are at least sixteen (16) years old.
Customer represents and warrants that Customer will use the Services only in compliance with applicable laws and regulations.
DSI represents and warrants to Customer that it will provide the Services in a diligent and workmanlike manner consistent with generally accepted industry standards and the Services will perform materially in accordance with applicable documentation under normal use, provided, however, that the provisions of this Section 8.4 may not be enforced during any period of free trial.
DSI will use commercially reasonable efforts to provide DSI-hosted online Services (“Hosted Services”) in a manner that minimizes errors and interruptions in accessing Hosted Services as set forth and described in the Service Level Agreement (SLA). Hosted Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond DSI’s reasonable control (including the availability of third party products or services), but DSI will use commercially reasonable efforts to provide advance notice in writing or by e-mail or through the Services portal of any scheduled unavailability of Hosted Services. DSI is not responsible for any delays, delivery failures, or other damage resulting from such unavailability (a) during any period of free trial and/or (b) because of causes beyond DSI’s reasonable control.
DSI will defend at its expense any third party claim, suit or proceeding (each, a “Claim”) brought against Customer by a third party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party, and DSI will pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided that Customer (a) promptly gives written notice of the Claim to DSI; (b) gives DSI sole control of the defense and settlement of the Claim (provided that DSI may not settle any Claim unless it unconditionally releases Customer of all liability under the Claim); and (c) provides to DSI, at DSI’s cost, all reasonable assistance. The foregoing indemnity will not apply to any Claim based upon or arising from (i) any use of the Services outside the scope of this Agreement, or (ii) a combination of the Services with any content or other technology not provided by DSI, to the extent the Claim relates to such combination. If the use of the Services by Customer has become, or in DIS’s opinion is likely to become, the subject of any Claim of infringement, DSI may at its option and expense (A) procure for Customer the right to continue using and receiving the Services as set forth hereunder, (B) replace or modify the Services to make them non-infringing with at least equivalent functionality; or (C) if options (A) and (B) are not reasonably practicable, terminate this Agreement and refund any prepaid Fees for unearned Services.
Customer will defend at its expense DSI against any Claim brought against DSI by a third party alleging that the Customer Content infringes any third party intellectual property right or violates any applicable law or regulation; provided that DSI (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases DSI of all liability under the Claim); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN AND/OR IN ANY APPLICABLE END USER LICENSE AGREEMENTS, DSI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. DSI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS OR OUTPUT THAT MAY BE OBTAINED FROM THE SERVICES. CUSTOMER AGREES THAT DSI WILL NOT BE RESPONSIBLE FOR ANY DECISIONS MADE BY CUSTOMER BASED ON RESULTS OR OUTPUT OBTAINED FROM THE SERVICES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY DSI, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS.
9. Limitation of Liability
EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 OR CUSTOMER’S BREACH OF SECTION 4 AND/OR SECTION 14 AND/OR USE OF THE SERVICES OR ANY PART THEREOF EXCEPT AS EXPRESSLY PERMITTED HEREBY, NEITHER PARTY (NOR ANY OF ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES) WILL BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THIS AGREEMENT OR ANY DELAY OR INABILITY TO USE THE SERVICES OR (B) ANY OTHER DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID TO DSI HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
10. Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees (i) to take reasonable precautions to protect such Confidential Information and (ii) , except to perform its obligations hereunder or as otherwise permitted herein, not to use or divulge to any third person any such Confidential Information. To the extent that the Receiving Party uses or divulges to its affiliates and/or any of their employees, contractors, or third parties (collectively “Representatives”) needing access for Receiving Party to perform its obligations hereunder, the Receiving Party will obtain confidentiality undertakings no less stringent than the confidentiality obligations of the Receiving Party under these Master Terms and Conditions, and the Receiving Party will remain liable for any unauthorized disclosure and use by its Representatives. The Disclosing Party agrees that the foregoing will not apply with respect to Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public through no fault of the Disclosing Party; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it may do so to the extent of such requirement, provided that it first gives written notice to the Disclosing Party thereof (if legally permitted).
11. Services Information
Customer acknowledges and agrees that DSI and its affiliates and contractors may use data and information, including Customer Data, generated by, provided in connection with or for, or derived from use of the Services (“Services Data”) to provide, administer, develop, and improve DSI’s offerings (including the Services) and for internal R&D purposes, subject to DSI’s compliance with applicable law.
DSI may give (i) notice applicable to DSI’s general Services customer base (including, but not limited to, any change to annual license fees) by means of a general notice on the Services portal, and (ii) notices specific to Customer by electronic mail to Customer’s email address on record in DSI’s account information or by written communication sent by first class mail to Customer’s address on record in DSI’s account information. For the avoidance of doubt, Customer is responsible for monitoring its email address on record and keeping it current, and DSI is not responsible for any failure of notice due to Customer’s failure to keep the same current. Notices will be considered to be received upon DSI’s delivery of notice pursuant to this Section 12. If Customer has a dispute with DSI, wishes to provide a notice under this Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to DSI by electronic mail or by first class mail or pre-paid post to DSI’s provided e-mail or physical address, respectively.
Subject to any restrictions from an applicable Order, Customer agrees that DSI may refer to Customer as one of its clients and use Customer’s name and logo in DSI’s marketing or promotional materials (including on its website) for such purpose.
14. General Provisions
Any action, Claim, or dispute related to this Agreement will be procedurally and substantively governed by Texas law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
This Agreement (including all Order(s) and End User License Agreements) represents the parties’ entire understanding relating to the Services, and supersedes any prior or contemporaneous, conflicting, or additional communications. Customer acknowledges that this Agreement is a contract between Customer and DSI, even though it may be electronic and not physically signed by Customer and DSI, and it governs Customer’s use of the Services and takes the place of any prior agreements between Customer and DSI. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between DSI and Customer as a result of this Agreement or use of the Services. Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning party related to this Agreement. Any purported assignment in violation of this Section 14.3 will be void.
During the term of this Agreement, and for twelve (12) months thereafter, neither party will solicit any of the other party’s employees directly involved in the performance, support, or coordination of Services pursuant to an End User License Agreements (if applicable) to consider alternate employment. For the avoidance of doubt, the preceding sentence does not forbid a party and its affiliates from hiring an employee of the other party who initiates contact as the result of general, non-targeted employee position listing or similar public communication.
Neither party will act in any way that gives or may give rise to a liability under, violates or may violate any laws, regulations and/or other legally binding requirements or determinations in relation to bribery, corruption, fraud, money-laundering, terrorism, sanctions, collusion or similar activities which are applicable to either party or to any jurisdiction in relation to use of the Services and which will include without limitation: (i) the United States Foreign Corrupt Practices Act 1977, as amended, (ii) the United Kingdom Bribery Act 2010, (iii) any related enabling legislation pursuant to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and (iv) any United States, United Nations, Canadian or European Union sanctions.
The Services and/or any derivations or work products derived therefrom may be subject to export-control laws of the United States and/or other countries. Customer agrees to comply strictly with all such laws and regulations, as applicable, as they relate to the Services, and, to the extent consistent with this Agreement and as may be applicable to either party, to obtain any necessary license or other authorization to export, reexport, or transfer the Services. Customer further represents and warrants that it will not (and will not permit that any commercial affiliate, subsidiary and/or partner, and/or any director, officer, employee, consultant, agent, contractor, or partner of any of the foregoing) 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. Further, Customer will not encourage or assist any third party to do any of the foregoing.
“Force Majeure” means an occurrence beyond the reasonable control of the Party affected effectively preventing contractual performance. Force Majeure includes but is not limited to acts of God (including but not limited to epidemic/pandemic, tidal wave, lightening, earthquake, hurricane, in each case whether named or not), hostilities or acts of war (whether declared or not), acts of terrorism, sabotage, riots (other than among employees of DSI, Customer or subcontractors), civil or military disturbances, national or regional strikes (excluding strikes, lock outs and other industrial disputes or actions by, between or originated among employees of DSI, Customer or subcontractors) and acts of any government or public authority or any representative thereof. Neither of the Parties shall be considered as being in breach of its obligations under this Agreement to the extent the Party can establish that the fulfillment of certain Order obligations has been prevented by Force Majeure, provided, however, that Force Majeure will in no event suspend otherwise-applicable payment obligations. The Party invoking Force Majeure must immediately notify the other Party of the Force Majeure situation. If the Force Majeure situation lasts without interruption for more than twenty (20) days, Customer will be entitled to terminate the applicable Order(s) and these Terms and Conditions without further liability.
This Agreement is entered into in the English language. Should a translation of this Agreement into any other language be required or desired for any reason, it is understood and agreed that in all matters involving the interpretation of this Agreement, the English text shall govern. All reports, documents, and any other written materials shall be written in English, unless otherwise agreed by the Parties in writing.