This MASTER SERVICES AND SUBSCRIPTION AGREEMENT, including the Service Order and the Company’s User Terms of Service and Privacy Policy, which, by this reference, are incorporated herein (this “Agreement”), is a binding agreement between Deep Origin, Inc. (the “Company”) and the person or entity identified on the Service Order as the licensee of the Service (“Subscriber”, “You”). The Company and Subscriber may each be referred to herein, individually, as a “Party” and, collectively, as the “Parties”.

COMPANY PROVIDES PRODUCTS AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH AND THE COMPANY’S USER TERMS OF SERVICE (https://deeporigin.com/tos) REFERENCED IN THIS AGREEMENT AND ON THE CONDITION THAT SUBSCRIBER ACCEPTS AND COMPLIES WITH THEM. BY SIGNING UP FOR COMPANY’S PRODUCTS OR SERVICES, YOU (A) ACCEPT THIS AGREEMENT AND AGREE TO BE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF SUBSCRIBER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUBSCRIBER AND BIND SUBSCRIBER TO ITS TERMS. IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, COMPANY WILL NOT AND DOES NOT LICENSE THE SERVICE TO SUBSCRIBER AND YOU MUST NOT ACCESS THE SERVICE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR SUBSCRIBER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH INCLUDES THE COMPANY’S TERMS OF SERVICE, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SERVICE THAT SUBSCRIBER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF COMPANY’S SERVICE.

WHEREAS, Company, its Affiliates and partners have established and maintain proprietary products and services, including software, associated APIs, the Deep Origin Content, the Deep Origin Marks, and any other product or service provided by Deep Origin to Subscribers under this Agreement (the “Service”);

WHEREAS, the Service may be accessed by Subscribers, via the “Deep Origin Platform”/the “Platform”, which shall be understood to mean the software and related products owned by Deep Origin and made available from Deep Origin, or its Affiliates and/or partners, under any commercial terms as determined at the discretion of Deep Origin; 

WHEREAS, the Platform is made available on a “Deep Origin Site”, which shall be understood to mean Deep Origin’s websites located at https://deeporigin.com, deeporigin.io, and deeporigin.net as well as any successor or related site designated by Deep Origin, as such may be updated from time to time;

WHEREAS, Subscriber desires to purchase from the Company a subscription to access the Platform and use the Service; and  

WHEREAS, Company has established and maintains proprietary products, services, and documentation, as described on the Company’s website and various marketing and product information materials (the “Service”);

WHEREAS, Subscriber desires to purchase from the Company a subscription to use the Service; and  

NOW THEREFORE, Company and Subscriber for good and valuable consideration hereby agree as follows:

1. Service access rights and restrictions.   Subscriber has executed or plans to execute one (1) or more order forms or other itemization of services and access rights to be provided to Subscriber which reference this Agreement (collectively the “Service Order(s)”).  Access to the Service, as granted under the Service Order(s), is granted subject to the terms and conditions of this Agreement.  Unless otherwise stated herein, the Parties agree to transact business electronically, and Client may order additional services under a Service Order electronically. 
1. Subject to such Service Orders and Subscriber’s performance of its obligations under this Agreement, Company grants to Subscriber during the Subscription Term (defined below), a nonexclusive, nontransferable (except as provided below) license and right to access the Service through Authorized Persons (defined below), and to use the Service for Subscriber's internal business purposes. All other rights and all other uses are strictly prohibited.  For the avoidance of doubt, Subscriber is not authorized to share login credentials, to sub-distribute, to sublicense, to allow unauthorized persons to access the Service using Subscriber credentials, nor to allow Third Parties to access Subscriber information.  
2. In this Agreement (i) “Authorized Person(s)” means an employee, agent or independent contractor  of Subscriber, or, if explicitly stated in a Service Order, of an Affiliate of Subscriber, who are authorized by Subscriber to access or use the Service under the rights granted to Subscriber under this Agreement and for whom access to the Service has been purchased hereunder, and provided such agent is not affiliated directly or indirectly with a competitor of Company; (ii) “Affiliate” means any entity which directly, or indirectly through one or more intermediaries, is controlled by, or is under common control with, Subscriber; provided that an entity shall be considered an affiliate only for the time during which such control exists and provided further that for the purpose of this definition, “control,” when used with respect to any specified entity, means the ownership of more than 50% of the voting right of such entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and (iii) “Third Party(ies)” means any business, enterprise, or individual other than Company, Subscriber or Subscriber’s Affiliates.  

 

• Service Fees.  

 

1. Fees and Payment.
1. Subscriber shall pay Company the fees (“Fees”) for the Service, as set forth in the Service Order without offset or deduction. Company will invoice the Subscriber, in accordance with the Service Order, and Subscriber will pay all invoices per invoice payment terms. Subscriber shall make all payments hereunder in the currency stated on the applicable invoice on or before the due date. Subscriber is responsible for any lapse and/or non-payment. Any payment not made timely shall incur a late payment fee of 5% of the amount due and shall accrue additional interest until paid at 5% per month, or the maximum rate permitted by law, if different.
2. Without limiting Company's other rights and remedies, in addition to the interest charged on any late payments, Subscriber shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and if such failure continues for thirty (30) calendar days or more, Company may suspend Subscriber's and its Authorized Persons' access to any portion or all of the Service until such amounts are paid in full.
3. Fees are not refundable, except as expressly provided in this Agreement or in a separate writing executed by the Company.  
2. Taxes. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Company's income.
3. Auditing Rights and Required Records. Subscriber agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Subscription Term with respect to matters necessary for accurately determining amounts due hereunder. 
1. Company may, at its own expense (subject to Section 2.3(b)), on reasonable prior notice, periodically inspect and audit Subscriber's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Subscriber has underpaid Company with respect to any amounts due and payable during the Subscription Term, including if Subscriber has used or attempted to use the Service or provide access to the Service to non-Authorized Persons, in addition to all other rights available to the Company for such unauthorized use of the Service, Subscriber shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with this Section. 
2. Subscriber shall pay for the costs of the audit if the audit determines that Subscriber's underpayment equals or exceeds 10% for any quarter. 

 

• Term and Termination. 

 

1.  Subscription Term. The initial Term of a Service Order shall commence on the Start Date stated in such Service Order and shall automatically renew for successive periods equal to the period of the initial Term, as stated therein, unless either Party gives written notice to the other Party that it does not want to renew, such notice to be provided not more than six (6) months nor less than 30 days prior to the then-ending Term, unless stated otherwise in the Service Order.  All period of time that this Agreement and each Service Order is effective, including the initial Term and any and all renewal Terms, is referred to as the “Subscription Term.” Costs and fees for each Subscription Term shall be as set forth in the Service Order. 
2. This Agreement and all Service Orders may be terminated by Company on thirty (30) calendar days written notice to Subscriber. Either Party may terminate this Agreement, if the other Party is in material breach of its obligations hereunder, provided that the Party claiming such material breach provides written notice of such material breach and such Party alleged to be in material breach fails to cure such material breach in all material respects, within fifteen (15) calendar days of the date it receives such written notice. 
3. Upon termination of this Agreement or a Service Order by the Company, for any reason other than for a breach by Subscriber, the Company shall refund all paid but unused subscription fees to Subscriber.  Subscriber’s access to the Service shall terminate as of the termination date as stated in the Company’s notice of termination. 
4. Notwithstanding anything in the Agreement to the contrary, Company is under no obligation to store, export, or process any Subscriber data, backups, or logs after the termination of this Agreement or any Service Orders executed in reference to this Agreement.

 

• Responsibilities, Representations And Warranties.  

 

1. Unless otherwise expressly provided in a Service Order or in a separate written and fully executed agreement between the Parties, Subscriber shall be solely responsible for: (a) selection of products and services to achieve Subscriber's intended results; (b) all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Subscriber or an Authorized Person through the Service (“Subscriber Data”); (c) entry and loading of Subscriber  Data onto the Service as necessary to make effective use of the Service; (d) properly configuring and using the Service and otherwise taking appropriate action to secure, protect and backup Subscriber Data in a manner that will provide appropriate security and protection, which might include use of encryption to protect Subscriber Data from unauthorized access and routinely archiving Subscriber Data; (e) the accuracy, timeliness and completeness of all Subscriber Data used in the Service; (f) ensuring the accuracy of Subscriber Data provided through integration sources; (g) installing, modifying, and maintaining the client side software to work with the Service, including maintaining Subscriber's internet connection; (h) maintaining the confidentiality of all user names and passwords and restricting access to such user names and passwords only to Authorized Persons, and prohibiting any sharing of such user names and passwords among Authorized Persons (but Subscriber may reassign such rights from time to time to new Authorized Persons who replace former Authorized Persons who no longer use the Service); (i) complying with any data privacy and protection regulations, laws, and conventions applicable to Subscriber’s data and Subscriber’s use of the Service, which may include, but are not limited to, laws, regulations, and conventions related to protected health information, data collection, access to information, and authorization to release such data; and (j) the results obtained from use and operation of the Service.
2. Subscriber representations. 
1. Subscriber, on behalf of itself, its Affiliate(s), and all Authorized Persons, represents and warrants that it is solely responsible for determining the suitability of Company’s Service for its business and that its use of the Service does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
2. Subscriber specifically understands and agrees Deep Origin provides the base infrastructure with tools to configure system security and customer is responsible for configuring such security.
3. Subscriber further represents, warrants, and covenants that it owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber Data and all Subscriber Data uploaded onto or in the Service shall be free of any and all claims of infringement of Intellectual Property (“IP”) rights (defined as copyrighted material, trademarks, service marks, trade secrets as defined under applicable law, patents and patentable ideas, non-patentable but secret ideas and inventions), and shall not defame, violate the right of privacy or publicity, violate any personal right, cause a breach or violation of any contract, agreement or other obligation to any Third Party, nor violate any applicable law, rule, regulation, order, or other legal obligation.
4.  All Authorized Persons logging into the Service shall agree individually to the Terms of Use and Privacy Policy as posted on the Service, and as may be amended from time to time; provided however that such Terms of Use and Privacy Policy shall not modify this Agreement and, as between Subscriber and Company, this Agreement shall supersede and control over the Terms of Use and the Privacy Policy on the Service. Subscriber understands and acknowledges that the Terms of Use and Privacy Policy may be changed by the Company at the Company’s discretion and that Subscriber or any of its Authorized Person’s continued use of the Service after the Company make changes to the Terms of Use or Privacy Policy is deemed to be acceptance of those changes.
5. Subscriber covenants that Subscriber and its Authorized Persons shall: (i)  not, and shall not permit any other Authorized Person to, access or use the Service except as expressly permitted by this Agreement; (ii)  use the Service in compliance with any manuals, instructions, or other documents or materials that the Company provides or makes available to Subscriber in any form or medium and which describe the functionality, components, features, or requirements of the Service, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof (“Documentation”) and all applicable federal,  state and local laws, rules and regulations applicable to Subscriber; (iii) make no use of the Service to send unsolicited commercial electronic communications in violation of applicable laws; (iv) make no use of the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of Third Party privacy or other protected rights; (v) make no use of the Service to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (vi) not interfere with or disrupt the integrity or performance of the Service or the Subscriber Data contained therein; (vii) not  reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to gain unauthorized access to the Service, any component thereof, or its related systems or networks; (viii) not store or process any information for which Service is not intended, per the Documentation; (i) not use the Service to store or produce Subscriber Data that Subscriber knows or should reasonably know would violate laws applicable to Subscriber and the country in which Subscriber is located at the time of use; (ix) not license, sublicense, sell, resell, transfer, assign, distribute, outsource, provide as a service bureau or software-as-service, or otherwise commercially exploit or make available to any Third Party the Service in any way; (x) not create Internet “links” to the Service or “frame” or “mirror” any content on any other server or wireless or internet-based device; (xi) not refer to or otherwise make use of the knowledge of operation of the Service to build a competitive product or service, or build a product using similar ideas, features, functions or graphics of the Service, or copy, or modify any ideas, features, functions or graphics of the Service or create derivative works or improvements of or to any aspect of the Service or the Documentation; or for any  purpose that is to the Company’s commercial disadvantage.
6. Without limiting the foregoing, and by way of example, and not limitation, Subscriber and any Authorized Persons are expressly prohibited from using the Service or Documentation:

(i) in violation of any law, regulation, or rule; 

(ii) to mine cryptocurrency, operate blockchain nodes and download sites, send bulk email, test security of any system, or perform work on systems or connect to other systems for the purpose of hiding the user’s true source or identity;

(iii) in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including biochemical weapons; military or aerospace applications, weapons systems, or environments; or

(iv) with the intent, or in a way that could be reasonably expected, to cause harm to other persons, which does not include uses that one could reasonably assume had beneficial intent, e.g., abortion or other similar purposes that have or could reasonably be expected to provide a legitimate medical benefit.

1. Company Representations and Warranties. Company represents and warrants that it is the owner or has all necessary rights to maintain and operate the Service and that the Service will be provided using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. 
2. Alpha and Beta Software. Notwithstanding anything in the Agreement to the contrary, Company may provide “beta” and “alpha” products and services or provide regular products and services that include “beta” and “alpha” software, components, and services and such products and services are provided “as is”, with no warranty express or implied. Alpha and Beta Software and Services are generally not well-tested, not proven, may not work as expected, may not include data backups or appropriate level of support and may not be developed or maintained by personnel with appropriate skills, experience, and qualifications, and may not work according to industry standards. By using Alpha and Beta Software, the Subscriber understands and accepts the risk and indemnifies the Company, its agents, parents, subsidiaries, partners, affiliates, employees, executives, and directors against all claims that might arise due to the use of such products and services.
3. Mutual representations. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c)the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d)when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such party in accordance with its terms.
4. Company Right to Suspend or Terminate Access. 
1. Service Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Subscriber's and any Authorized Person's access to any portion or all of the Service if: (i) Company reasonably determines that (a) there is a threat or attack on any of the Company IP; (ii) Subscriber's or any Authorized Person's use of the Company IP disrupts or poses a security risk to the Company IP or to any other subscriber or vendor of Company; (iii) subject to applicable law, Subscriber has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (iv) Company's provision of the Service to Subscriber or any Authorized Person is prohibited by applicable law; or (v) any vendor of Company has suspended or terminated Company's access to or use of any third-party services or products required to enable Subscriber to access the Service (each a “Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Subscriber and to provide updates regarding resumption of access to the Service following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured, if, in the Company’s sole discretion, the event is curable to Company’s satisfaction. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Subscriber or any Authorized Person may incur as a result of a Service Suspension.
2. Service Termination. Notwithstanding anything to the contrary in this Agreement, and in addition to all other remedies available to Company, Company may terminate Subscriber, or any Authorized Person, or other user’s access to the Service, without notice, if Company determines, in its sole discretion that Subscriber, or any Authorized Person, is or may be using the Service for fraudulent, or illegal activities; for a prohibited purpose, including but not limited to, if Company, in its sole discretion, believes that Subscriber is using or intends to use the Service for purposes that are or could be damaging to the Company;; or that Subscriber's or any Authorized Person's or unauthorized use of the Service poses a threat of danger or a security risk to the Company, to any other subscriber, vendor, or Third Party (a “Service Termination”). Company will have no liability for any damage, liabilities, losses (including any loss of Subscriber Data or profits), or any other consequences that Subscriber or any Authorized Person may incur as a result of a Service Termination.
5. Third-Party Materials. The Service and/or the Documentation may include Third-Party Materials or applications, or links to third-party sites or applications, that the Company does not control, maintain or endorse (all such sites or applications and materials collectively “Third-Party Materials”). Subscriber expressly acknowledge and agree that the Company is in no way responsible or liable for any Third-Party Materials, including, without limitation, any damages, losses, failures or problems caused by, related to or arising from such Third-Party Materials. In the event Subscriber engages with such Third-Party Materials in any matter, any terms, conditions, policies, representations or warranties associated with all such interactions between Subscriber and the provider of such Third-Party Materials, are solely between Subscriber and the provider of the Third-Party Materials. Subscriber agrees that it is solely responsible for reviewing and complying with the relevant terms, conditions, policies, representations or warranties associated with such Third-Party Materials, including any privacy policies and terms of service for any third-party site or application accessed by the Subscriber.  

 

• Confidentiality; reserved rights

 

1. Proprietary Information. Company and Subscriber may transmit information to each other that is confidential and proprietary, including information regarding  its business affairs, products, confidential IP, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether transmitted orally or in writing, electronic, or other form or media. Any Proprietary Information exchanged by either Party and entitled to protection hereunder shall be identified or marked as such by an appropriate stamp or marking on each document and data file exchanged designating the information as confidential or proprietary.  In the case of an oral or inadvertent written disclosure of Proprietary Information, the Disclosing Party (as defined below) may make a contemporaneous written statement to identify such information as Proprietary or may identify such information as Proprietary, in a separate writing, within thirty (30) days of such oral or inadvertent disclosure.   The  information transmitted may include by way of example and not limitation: Subscriber Data, formulas, product analysis, test results, samples, compositions, accounting and financial information, marketing plans, supplier lists, information regarding current and prospective subscribers, subscriber communications, operating procedures, costs and sources of supply, information concerning employees, Intellectual Property, information obtained from other persons under agreements to keep such information confidential, and other internal secret and proprietary information (the “Proprietary Information”). For the avoidance of doubt, Subscriber Data uploaded by Subscriber to Company’s software is Proprietary Information of Subscriber and all products, services, websites and documentation provided by Company are Proprietary Information of the Company. Notwithstanding the above, Proprietary Information shall not include information the Receiving Party (defined below) proves: (a) it had in its possession prior to the date of the disclosure; (b) has become publicly available in a manner other than by a breach of this Agreement or by a “misappropriation” within the meaning of the Uniform Trade Secret Act; or (c) was independently developed by such Party without use, directly or indirectly, of any Proprietary Information of the other Party.
2. Confidentiality; Non-Disclosure. Each Party receiving Proprietary Information (the “Receiving Party”) directly or indirectly from the other Party (the “Disclosing Party”) agrees to keep confidential and not to disclose such Proprietary Information except as permitted hereunder, and shall limit access to the Proprietary Information only to employees and contractors of Receiving Party who have a need to know the Proprietary Information to perform the Party’s rights and obligations hereunder. Receiving Party shall otherwise treat the Disclosing Party’s Proprietary Information using the same degree of care used to protect its own Proprietary Information of like importance, but in any case using no less than a reasonable degree of care. Receiving Party shall make no use of Disclosing Party's Proprietary Information for purposes other than in connection with providing the Service or receiving the benefit of the Service, and without limiting that requirement, shall make no use of the Disclosing Party's Proprietary Information for purposes of competing with, or assisting any other person to compete with, Disclosing Party. Proprietary Information shall not be disclosed to any person except as expressly permitted above, without the express written consent of the Disclosing Party, or if such disclosure is required to be made by applicable law or court order (in which case Receiving Party shall give prompt written notice of such request to Disclosing Party not less than 5 business days before responding or providing such information, and shall cooperate with Disclosing Party in protecting the information if it must be disclosed).
3. Exceptions. Notwithstanding the above, the obligations in Section 5.2 shall not apply to information and materials that (i) are received from any Third-Party source that is properly authorized to disclose it and not under a duty of confidentiality, or (ii) are or become generally known to the public by publication or other means other than a breach of duty under this Agreement.  In addition, Section 5.2 shall not prohibit a Party from complying with a lawful demand or request for information that is required by law, regulation, court rule or court order to be divulged, provided that the Receiving Party gives the other Party prompt prior written notice of such request, and unless prohibited by applicable law or lawful executive order, provide the other Party a reasonable time to file any request for protective order or to take other protective measures in connection with such disclosure under compulsion of law.
4. Permitted uses.  Company shall be permitted to use Subscriber Proprietary Information in connection with the provision of the Service functionality – i.e. to upload such information into the Company Service and manipulate the information in accordance with the function of the Service and then present such information to Subscriber. 
5. Duration of Agreement; Return of Information. The obligations in this Section 5 shall survive the termination or expiration of this Agreement. Upon termination or expiration of this Agreement (or all Service Orders, or both), Receiving Party shall return to Disclosing Party or destroy all originals, and all copies in any form, including copies maintained in digital, electronic, magnetic, optical and holographic mediums, of the Disclosing Party’s Proprietary Information, and shall also transfer all documents, memorandums or other materials, in any form, that contain, refer or relate to the Proprietary Information (the portion of such materials that do not disclose, refer or relate to the Proprietary Information may be retained in redacted form). Receiving Party shall certify to Disclosing Party in an affidavit executed by an authorized representative of Receiving Party that all Proprietary Information disclosed to Receiving Party has been returned to Disclosing Party or destroyed.  Notwithstanding the above, either Party may, but is not required to, retain with its attorney, one archival copy of Proprietary Information to be used solely in any litigation concerning the performance of this Agreement; and any Proprietary Information stored in backup storage may be maintained and deleted in accordance with regular backup storage rotation procedures.
6. No representations.  Except for the representations in Section 5.1, and the Subscriber’s covenants in Section 4 (and its subsections) all Proprietary Information and Intellectual Property is disclosed “as is” without warranty of any kind.  For the avoidance of doubt, the Parties agree that it is not within the purpose of the disclosure hereunder to make any use of the other Party’s Confidential Information in connection with a US or foreign patent application, including but not limited to any application that would constitute a “derived patent” as that term is understood within the meaning of 35 USC § 291(a) (a “Derived Patent”), and each Party covenants and agrees not to file any application for a patent that would constitute a Derived Patent arising from access to the Proprietary Information of the other Party.
7. Reserved rights.  Except as set forth in this Agreement, no expressed or implied license or right of any kind is granted by either Party to the other regarding its Intellectual Property, Subscriber Data, the Service or its Proprietary Information.  Each Party reserves all rights not expressly granted herein.

 

• Limitations and Disclaimer

 

1. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. SUBSCRIBER SHALL BE RESPONSIBLE FOR CONFIGURING AND USING THE SERVICE AND TAKING APPROPRIATE ACTION TO SECURE, PROTECT AND BACKUP SUBSCRIBER DATA IN A MANNER THAT WILL PROVIDE APPROPRIATE SECURITY AND PROTECTION FOR SUBSCRIBER DATA IN SUBSCRIBER’S SOLE DISCRETION AS WELL AS VERIFYING ANY OUTPUT RESULTING FROM USE OF THE SERVICE IF SUBSCRIBER INTENDS TO USE OR RELY ON SUCH OUTPUT FOR BUSINESS PURPOSES. SUBSCRIBER SHALL FOLLOW PROPER BACKUP PROCEDURES FOR ANY OTHER PROGRAMMING AND ALL DATA TO PROTECT AGAINST LOSS OR ERROR RESULTING FROM USE OF ANY OR ALL OF THE SERVICE.  THERE IS NO WARRANTY THAT THE SERVICE OR ANY INFORMATION, SOFTWARE, COMPUTER PROGRAM, SERVICES, EFFORTS, OR ANY SYSTEM PROVIDED BY COMPANY WILL FULFILL ANY PARTICULAR PURPOSES OR NEEDS OF SUBSCRIBER OR ANY OF ITS AFFILIATES.
2. Limitation of remedy and liability.  IN NO EVENT SHALL COMPANY, OR ANY OF ITS EMPLOYEES, OFFICERS, OR AGENTS, BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, COSTS OF DELAY, LOST PROFITS OR BUSINESS REVENUE, LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICE; LOSS, DAMAGE OR CORRUPTION, RECOVERY OF DATA OF DATA OR INFORMATION, OR BREACH OF DATA OR SYSTEM SECURITY; COST OF REPLACEMENT GOODS OR SERVICES; LOSS OF GOODWILL OR REPUTATION) ARISING UNDER OR RELATED TO THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
3. Cap on Monetary Liability. In no event will the liability of the Company, including its employees, officers, or agents, arising out of or related to this Agreement, whether arising under or related to breach of contract, tort (including negligence), strict liability, or any other legal or equitable theory, exceed the total amounts paid to Company under this Agreement in the 12-month period preceding the event giving rise to the claim, or $50,000, whichever is less. The foregoing limitations apply even if any remedy fails of its essential purpose. In no event shall Company be liable for any damages or losses as a result of Subscriber’s use of Third Party tools, services, applications or functionality, products or services whether or not they are used in conjunction with Company services. Subscriber’s sole remedy for any claim that the Service fails to meet any representation or warranty herein or is otherwise not functioning, shall be for Company to repair, replace or correct the Service to bring it into compliance with Company’s obligations herein.  

 

• Indemnification

 

1. Mutual Indemnification. Each Party (the “indemnifying Party”) agrees to indemnify, defend and hold harmless the other Party, and its employees, agents, affiliates, parent companies, subsidiaries, successors and assigns (the “indemnified Party”) against and from any and all losses, damages, and expenses, including reasonable court or arbitration costs and reasonable attorney’s fees (“Losses”), arising out of: a Third-Party claim of (a) personal injury, property damage, breach of contract, or any other liability, arising from the actions or fault of the indemnifying Party, its employees or agents; (b) material breach of this Agreement; and (c) violation of applicable law by indemnifying Party.  
2. Subscriber Indemnification. Subscriber shall indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Subscriber Data, including any processing of Subscriber Data by or on behalf of Company in accordance with this Agreement, and any claim that the Subscriber Data, or any portion thereof, infringes upon any Intellectual Property rights held or alleged to be held therein by a Third-Party; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Subscriber or any Authorized Person to the Company, including Company's compliance with any specifications or directions provided by or on behalf of Subscriber or any Authorized Person to the extent prepared without any contribution by Company; (c) allegation of facts that, if true, would constitute Subscriber's breach of any of its representations, warranties, covenants, or obligations under this Agreement; (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any Authorized Person, or any third party on behalf of Subscriber, an Affiliate, or any Authorized Person, in connection with this Agreement;  (e) any use of the Service or Documentation by or on behalf of Subscriber or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation or in any manner contrary to Subscriber’s instructions; (f) an investigation, claim or finding by a government  that Subscriber, Subscriber Data, or Subscriber’s use of the Service is or may be in violation of any regulation, statute, or governmental ordinance of any jurisdiction, common law or otherwise; or (g) any data loss by Subscriber (including, but not limited to loss of any Subscriber Data), whether it was caused by the Company or any other parties.
3. Third-Party Infringement Claims. In the event a Third Party claims the Service (other than Third Party components of the Service) infringes its Intellectual Property or other rights, Company shall use reasonable commercial effort to acquire a license, modify the Service to avoid infringement, or otherwise resolve such claim, provided that if in the Company's judgment it is or will be unable to avoid such infringement, then Company shall have the right to terminate this Agreement, at least in respect of the infringing material or system, and in such case, Company shall refund any prepaid subscription fees.  The foregoing remedies are the sole and exclusive remedies available to Subscriber for alleged infringement by Company of Third-Party Intellectual Property rights.
4. Procedure. Each Party shall promptly give written notice of such any for which it reasonably believes it is entitled to indemnification pursuant to this Section; shall reasonably cooperate and provide reasonable assistance in the defense of such claim; and shall not unreasonably withhold consent from any settlement thereof. Notwithstanding the above, the indemnifying Party shall not be obligated to defend, indemnify or hold the indemnified Party harmless to the extent any claims, losses, damages, expenses or other amounts are suffered by the indemnified Party as a result of its own negligent or intentional act, omission, failure to comply with this Agreement, or violation of law.

 

• Miscellaneous

 

1. Entire Agreement/Counterparts.  This Agreement and all Service Orders executed by the Parties contain the Parties’ entire agreement with respect to the subject matter hereof and supersedes all prior written or oral agreements or understandings. This Agreement may be executed in any number of counterparts which together shall constitute a single agreement.  Where used herein “execute” “sign” or words of similar import shall mean either written signature (whether original or facsimile) or electronic execution through use of any agreed electronic document execution service, electronic mail or any other form of signature recognized under applicable law. In the event of any conflict between this Agreement and a Service Order, the terms of this Agreement shall control. 
2. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each PartyWaiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
3. Injunctive Relief. The Parties agree that if Subscriber provides or attempts to provide access to the Service to non-Authorized Persons or if there is a breach or threatened breach by Subscriber of any of its obligations  under Sections 4, 5 or 8.5, it would cause the Company irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, the Company will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without the necessity of posting a bond or proving actual damage, irreparable injury or lack of a remedy at law. All remedies are cumulative and injunctive remedies are not exclusive. For all equitable claims, the Parties hereby consent to the sole and exclusive venue and personal jurisdiction of state or federal courts located in San Francisco, California. 
4. Interpretation. Each of the Parties has been represented by and/or has had an opportunity to consult legal counsel in connection with the negotiation and execution of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.  The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
5. Non-Disparagement. Subscriber shall not, directly or indirectly, make (or cause to be made) any comment or statement, oral or written, including, without limitation, including on social media, to a member of the media, or to any Third-Party, that is intended to or would reasonably be expected to adversely affect the commercial reputation of the Company or any of its officers, directors, members, partners or employees; the Service; or the conduct of the Company’s business. 
6. Agreement Changes. This Agreement may be changed at any time by the Company at the Company’s discretion. The Company will post a new agreement on its website and will communicate about such changes to Subscriber via electronic means, such as email, a note on the invoice, or a note within the Service. Continued use of the Service beyond 30 days after the Company makes changes to this Agreement is deemed to be acceptance of those changes.
7. Governing Law.  This Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law rules thereof.  The Parties agree that the Uniform Commercial Code, any Uniform Computer Information Transactions Act, and the United Nations Convention On Contracts For The International Sale Of Goods shall not apply and hereby excluded.  
8. Assignment.  Subscriber may not assign its rights hereunder without the express written consent of Company; provided however that Subscriber may assign this Agreement in whole, without Company's consent and without the payment of a fee, to an entity that acquires the Subscriber (provided in such case that the scope of the rights granted herein is not expanded by such assignment). Subscriber shall provide the Company prompt written notice prior to any such acquisition, or expected acquisition to the extent commercially possible, and, in any event no less than fifteen (15) business days following such acquisition. Company may assign this Agreement to its affiliates or in connection with a merger, sale or other transfer of its business (or the portion of its business related to the Service and services provided hereunder). 
9. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and assigns.
10. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) applicable government order or law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (j) other similar events beyond the reasonable control of the affected Party. The Party suffering a Force Majeure Event shall give prompt written notice the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
11. Severability. If any provision hereof is declared invalid or unenforceable by a court of competent jurisdiction, then the meaning of that provision will be interpreted, to the extent feasible, in a way that renders it enforceable or valid. If no feasible interpretation is possible, the provision will be severed from the Agreement, only to the extent of such invalidity or unenforceability, and the remainder of that provision and all remaining provisions of the Agreement will continue in full force and effect.
12. Relationship of the Parties. Except as expressly provided herein, nothing in the Agreement shall be: (i) deemed to constitute a partnership or joint venture between the Parties or be deemed to constitute one Party as agent of the other, for any purpose whatever, and neither Party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose; or (ii) construed as a limitation on the powers or rights of either Party to carry on its separate businesses for its sole benefit, including and not limited to the ability to enter into similar agreements with Third Parties, and each Party shall take no action, directly or indirectly, which may prevent or hinder the other Party from fulfilling its obligations to Third Parties. 
13. Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”), except for those noted under Section 8.6, must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
14. Equitable Relief/Binding Arbitration.  Except for equitable claims that may be filed in court as provided above in Section 8.3, all other disputes, claims, counterclaims and controversies arising under this Agreement shall be arbitrated before a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association at a proceeding held in San Francisco, California.  The Parties shall mutually agree on the arbitrator, or if they cannot agree, then the arbitrator shall be appointed by the American Arbitration Association in accordance with its rules.  In addition, the prevailing Party in any dispute between the Parties, whether arising hereunder or in tort or other law, shall be entitled (and if such claim is arbitrated, the arbitrator shall award) to its costs and expenses, including its reasonable attorneys’ and other professional fees. 

By signing up for the Service, using the Service, and/or continuing to use the Service, You affirm and You have reviewed and agree to be legally bound by the terms of this Agreement, and all documents referenced herein, including the Company’s Terms of Use and Privacy Policy.