IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT CAREFULLY BEFORE ATTEMPTING TO USE THE DATARPM APPLICATION AND DOCUMENTATION TO WHICH THIS END USER LICENSE AGREEMENT RELATES.
This End User License Agreement constitutes a legally binding agreement. By clicking “I Accept” below or using the DataRPM Application provided by DataRPM Corporation (“DataRPM”, “us”, “we” or “our”), you:
- agree to the following terms on behalf of the DataRPM customer with which you are employed OR affiliated (“Customer”),
- represent that you have the authority to bind Customer to these terms, and
- represent that you are A PERMITTED user of the DataRPM Application under the subscription purchased by Customer from us.
If you do not have such authority, are not a PERMITTED user, or do not agree to these terms, you may not use the DataRPM Application.
This End User License Agreement is supplemental to and not in lieu of the terms and conditions of any other agreement, IF Any, mutually executed by Customer and us pertaining to Customer’s subscription to use the DataRPM Application and Documentation (“mASTER Agreement”), and to the extent that A master Agreement exists and there is any conflict between the terms and conditions of the master Agreement and this End User License Agreement, the terms of the master Agreement will prevail.
For the purpose of this Agreement, the following are defined terms:
1.1 “Affiliate” means any corporation, firm, partnership or other entity that directly or indirectly controls, is controlled by, or is under common control with a party hereto. For the purposes of this definition, “control” means ownership, directly or indirectly, of more than fifty percent (50%) of the voting shares or other equity interest in an entity.
1.2 “Agreement” means this End User License Agreement and the Exhibits attached hereto and incorporated herein by reference.
1.3 “Customer Data” means any data and material that Customer or its Permitted Users (including you) upload to the DataRPM Application.
1.4 “DataRPM Application” means the computer software application(s) that we or our Affiliates make generally available to our customers and that are listed in an Order Form entered into between Customer and us (or our authorized reseller), and any updates, enhancements or new releases thereto that we make available to Customer as part of the Support Services.
1.5 “Documentation” has the meaning given in Exhibit A.
1.6 “Feedback” has the meaning given in section 2.3 (Ownership).
1.7 “Fees” has the meaning given in section 4 (Payment of Fees).
1.8 “License Term” means the period of time that Customer is authorized to use the DataRPM Application as specified in the Order Form.
1.9 “Order Form” means a written or electronic order document or form specifying the DataRPM Application license(s) to be provided hereunder that is entered into between Customer and us (or our authorized reseller). Each Order Form entered into by Customer and us (or our authorized reseller) will, unless otherwise specified in the Order Form, be governed by the terms of this Agreement and the Master Agreement (if applicable), and include the name of the DataRPM Application being licensed and any usage limitations, applicable fees, and any other details related to the transaction under the Order Form.
1.10 “Permitted User” means an individual employed or affiliated with Customer and designated by Customer as a user of the DataRPM Application and who accepts this Agreement.
1.11 “Professional Services” has the meaning given in Exhibit B.
1.12 “Statement of Work” or “SOW” has the meaning given in Exhibit B.
1.11 “Support Services” means the services described in Exhibit A.
2. ACCESS LICENSE: RESTRICTIONS; OWNERSHIP.
2.1 Access License.
2.1.1 The DataRPM Application is licensed, not sold, to Customer by us under the terms of this Agreement, the Master Agreement (if applicable) and the Order Form. The license granted to Customer is a personal, nonexclusive, limited license to access and use the DataRPM Application during the License Term for the purposes of preparing data for analysis, aggregating data, building and executing data science workflows, recipes and models, generating predictions and prescriptions, and presenting results for Customer’s internal and external business purposes and only in accordance with the Documentation (or other written instructions provided by us (or our authorized reseller) to Customer) and the usage limitations and other terms and conditions set forth in the Order Form. Your status as a Permitted User and your right to use the DataRPM Application will cease immediately in the event you are no longer employed or affiliated with Customer or in the event this Agreement is terminated in accordance with section 5 (Term and Termination). If you are no longer employed or affiliated with Customer, Customer may re-assign your license to another individual who meets the requirements of a Permitted User.
2.1.2 Unless otherwise expressly stated in the Order Form, the DataRPM Application will be deployed on servers provided by Customer, either on Customer’s premises or on off-premises leased servers obtained and maintained at Customer’s expense (“Customer Private Cloud”). Customer authorizes us (or our authorized reseller) to access the servers on which Customer deploys the DataRPM Application, whether on-premise or Customer Private Cloud, throughout the License Term. If Customer elects to deploy the DataRPM Application on a Customer Private Cloud, then Customer will ensure that the third party from whom Customer obtains the leased servers and associated cloud infrastructure does not have the ability to access or use the DataRPM Application; provided, however, that this restriction will not preclude such third party from providing Customer with (a) managed services consisting of power, physical environment controls, hardware/server/OS installation or monitoring, network bandwidth supply/management, incident/change management, or (b) security services, including, network security, intrusion detection, firewall, risk management and physical security. The Order Form may specify that we (or our authorized reseller) will supply Customer with access to the DataRPM Application during the License Term by means of (a) a public cloud hosted by us or our authorized reseller (“Public Cloud”) or (b) leased servers and associated cloud infrastructure obtained and maintained by us or our authorized reseller for the benefit of Customer (“Hybrid Cloud”). If the Order Form states that we will supply Customer with such access via a Public Cloud or Hybrid Cloud, then then the terms set forth in Exhibit C will apply. If the Order Form states that our authorized reseller will supply Customer with such access via a Public Cloud or Hybrid Cloud, then any additional terms specified in the Order Form between Customer and our authorized reseller relating to the provision of the Public Cloud or Hybrid Cloud will apply between Customer and our authorized reseller. For the avoidance of doubt, supplying Customer with access to the DataRPM Application by us or our authorized reseller via a Public Cloud or a Hybrid Cloud will be at our or our authorized reseller’s sole discretion.
2.1.3 If Customer requests and is granted access to the DataRPM Application on a trial basis via a self-service trial registration portal on the DataRPM website, or on a third-party website authorized by us, then Customer’s completion of the online registration page will be considered the Order Form for purposes of this Agreement. Access to the DataRPM Application will be provided to Customer via a Hybrid Cloud or Public Cloud supplied by us or a third-party authorized by us, and, if supplied by us, the terms set forth in Exhibit C will apply. If the Hybrid Cloud or Public Cloud is provided by a third-party, then any additional terms specified by the third party relating to the provision of the Public Cloud or Hybrid Cloud will apply between Customer and the third-party providing such services. Whether to provide access to the DataRPM Application on a trial basis via a Hybrid Cloud or Public Cloud will be at our discretion or the discretion of the third-party authorized by us. Notwithstanding anything to the contrary in this Agreement, Customer’s right to use the DataRPM Application is limited to use for evaluation purposes only and not for production use. The License Term will expire on the date specified during the online registration, or if no date is specified, thirty (30) days following Customer’s first login to the DataRPM Application, unless DataRPM, in its sole discretion, extends the License Term.
2.1.4 In the event the DataRPM Application is installed in a cloud environment, whether on a Customer Private Cloud, Hybrid Cloud or a Public Cloud, Customer is responsible for ensuring that the Customer Data is exportable to the cloud environment and that it has made backup copies of Customer Data prior to uploading the Customer Data to the DataRPM Application. Neither we nor our authorized reseller, if applicable, will be liable for any loss of Customer Data.
2.2.1 Except as otherwise expressly permitted herein, you and Customer will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the DataRPM Application; (ii) modify, translate, or create derivative works based on the DataRPM Application; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the DataRPM Application; (iv) use the DataRPM Application for timesharing or service bureau purposes or otherwise for the benefit of a third party (excepting Customer’s end users as part of the purpose contemplated in section 2.1 above); (v) remove or otherwise alter any proprietary notices or labels from the DataRPM Application or any portion thereof; or (vi) use the DataRPM Application to create any other product or service. You and Customer will use the DataRPM Application only in compliance with (i) the Order Form, (ii) the rights granted hereunder, and (iii) in accordance with all applicable laws and regulations. Notwithstanding the foregoing, if DataRPM, at its sole discretion, exposes the source code of the data science recipes in the DataRPM Application, then Customer and its Permitted Users may modify the source code of such data science recipes subject to the following conditions:
(a) the source code of the data science recipes, in the original form supplied by us or as modified by Customer or its Permitted Users may not be copied or used outside of the DataRPM Application,
(b) we own all right, title and interest in and to any modifications that Customer or its Permitted Users make to the source code of the data science recipes (and you and Customer hereby make all assignments necessary to achieve such ownership), and
(c) we are not responsible for providing any Support Services for any such modifications and Customer must be able to re-create an error in an unmodified version of the DataRPM Application in order to obtain Support Services in accordance with section 3.1 (Services) and Exhibit A.
2.2.2 The DataRPM Application, including technical data, are subject to U.S. export control laws, including, without limitation, the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Neither you nor Customer will directly or indirectly export or re-export the DataRPM Application, or any direct product thereof, without first obtaining our written approval. You and Customer agree to comply strictly with all regulations and acknowledge that Customer has the responsibility to obtain licenses to export, re-export or import the DataRPM Application. The DataRPM Application may not be downloaded, or otherwise exported or re-exported (i) into, or to a national or resident of any country and/or part to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, or the U.S. Commerce Department’s Table of Denial Orders as amended from time to time, or any other list distributed by the United States government setting forth individuals or entities to which distribution of the DataRPM Application would be prohibited by United States law.
2.2.3 If the DataRPM Application is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the U.S. Government’s rights in the DataRPM Application will be only as set forth herein. The DataRPM Application and related Documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the DataRPM Application and such Documentation with only those rights set forth herein. Manufacturer is DataRPM Corporation, 201 Redwood Shores Parkway, Suite 255, Redwood City, CA 94065.
2.3 Ownership. Customer Data belongs to Customer. Except for the rights expressly granted under this section 2, we retain all right, title, and interest in and to: (i) the DataRPM Application, (ii) all data (other than Customer Data), software, products, works, data science recipes (including any source code for the data science recipes and any modifications to such source code), algorithms, data science workflows and (iii) any other intellectual property created, used, or provided by us for the purposes of this Agreement. To the extent Customer, you or any of Customer’s other Permitted Users and/or the operation of the DataRPM Application provide us (or our authorized reseller) with any feedback relating to the DataRPM Application (including, without limitation, feedback related to usability, performance, interactivity, bug reports, meta data, and test results)(“Feedback”) and/or any Meta Learning (as defined below), we will own all right, title and interest in and to such Feedback and Meta Learning (and you and Customer hereby make all assignments necessary to achieve such ownership). Meta Learning means any meta data created from the models which are built for and run by Customer, the experience gained by exploiting the meta data, and the resulting learning or adjustments that the DataRPM Application makes to the model as a result of such experience.
3. SERVICES AND UPDATES.
3.1 Services. We will provide Customer with Support Services described in Exhibit A. Notwithstanding anything to the contrary in Exhibit A, if Customer purchased the license to the DataRPM Application from an authorized reseller, and if the Order Form indicates that the authorized reseller will provide first line support, then any issues not addressed by DataRPM Online Technical Support (as defined in Exhibit A) must be directed to the authorized reseller, and the authorized reseller will engage us, if necessary, to address Customer’s support issue in accordance with Exhibit A. Customer must be using the most recently released version of the DataRPM Application to obtain Support Services as described in Exhibit A. Any additional services (such as professional configuration services, implementation services, customizations, training, etc.) will be provided upon mutual agreement of the parties, as evidenced by the mutual execution of a Statement of Work, will be subject to the terms of Exhibit B, and, unless otherwise expressly stated in the Statement of Work, will be charged at DataRPM’s then-current rates as set out in the Statement of Work.
3.2 Updates. Any Update (as defined in Exhibit A) issued to Customer by us or our authorized reseller as part of the Support Services replaces part or all of the DataRPM Application or Update previously licensed to Customer and will terminate such previously licensed DataRPM Application or Update to the extent replaced by the Update. Each Update will be subject to the terms and conditions of the DataRPM End User License Agreement accepted by the Permitted User at the time of first login to DataRPM Application following the installation of the Update.
4. PAYMENT OF FEES. Customer will pay us the fees for the DataRPM Application as set forth in the Order Form (“Fees”). Unless otherwise specified in the Order Form, we will invoice all Fees in advance and all invoices issued under the Agreement will be payable in U.S. dollars within thirty (30) days from the date of invoice. We may, in our discretion, increase the Fees at the beginning of each Renewal Term; provided that we provide Customer with notice of such increase at least sixty (60) days prior to the beginning of the applicable Renewal Term. We may provide such notice via email to the email address of Customer’s primary contact specified in the Order Form (or such other email address as may be properly specified by written notice from Customer hereunder). If we do not provide such notice, the Fees for the Renewal Term will be the same as the Fees for the immediately preceding term (provided there have been no changes to the scope of Customer’s license to the DataRPM Application at the time of renewal). Unpaid invoices are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer will be responsible for all (i) taxes associated with the DataRPM Application other than taxes based on our net income, and (ii) our costs of collection in the event of Customer’s delinquent payment. All Fees paid are non-refundable (except as otherwise expressly set out in the Order Form) and not subject to set-off. Notwithstanding the foregoing terms, if Customer obtained its license to the DataRPM Application from our authorized reseller, then the fees for the DataRPM Application and any adjustments in fees associated with each Renewal Term will be set forth in the Order Form between Customer and our authorized reseller. Our authorized reseller may be responsible for billing and/or collecting payment from Customer. If our authorized reseller is responsible for billing and/or collection, the billing and collection terms agreed to between Customer and our authorized reseller may differ from the terms set forth in this section.
5. TERM AND TERMINATION.
5.1 Term. The subscription term of Customer’s license to the DataRPM Application will be as specified in the Order Form. Except as otherwise specified in the Order Form, the subscription term of Customer’s license to the DataRPM Application will automatically renew for consecutive Renewal Terms, as set out in the Order Form, unless either Customer or we provide the other party with written notice of non-renewal within the non-renewal notice period specified in the Order Form, or if no non-renewal notice period is specified in the Order Form, at least ninety (90) days prior to the end of the then current subscription term.
5.2.1 Either Customer or we may terminate this Agreement and the license granted hereunder in the event the other party materially breaches this Agreement and fails to cure the breach within thirty (30) days (ten (10) days in the case of Customer’s non-payment) from receipt of written notice thereof. This remedy will not be exclusive and will be in addition to any other remedies which the non-breaching party may have under this Agreement or otherwise.
5.2.2 Any purported transfer or assignment by Customer of this Agreement or the license granted hereunder other than as expressly permitted hereunder or any purported transfer or assignment of this Agreement or the license granted hereunder as a result of Customer’s bankruptcy, insolvency, or liquidation or as a result of an assignment of Customer’s assets for the benefit of creditors will be void and this Agreement and the license granted hereunder will thereupon automatically terminate without further notice or action by us.
5.2.3 This Agreement and the license granted hereunder will automatically terminate in the event of termination of the Master Agreement, if applicable.
5.3 Effect of Termination. Upon termination of this Agreement, all rights granted to Customer herein and pursuant to the Order Form will terminate and Customer and its Permitted Users will make no further use of the DataRPM Application. Customer will allow us or our authorized reseller, at our option and upon written notice to Customer, to conduct the de-installation and removal of all copies of the DataRPM Application from Customer’s on-premise hardware or, if Customer elected a Customer Private Cloud deployment option, from the Customer Private Cloud. We may provide such notice via email to the email address of Customer’s primary contact specified in the Order Form (or such other email address as may be properly specified by written notice from Customer). If Customer does not receive written notice from us within thirty (30) days following the termination of this Agreement that we are electing our option to complete the de-installation and removal of the DataRPM Application, Customer will remove and destroy all copies of the DataRPM Application in its possession or control, including all copies uploaded onto a Customer Private Cloud (if Customer elected a Customer Private Cloud deployment option) and will provide us with a written instrument signed by Customer’s authorized representative certifying to the removal and destruction of all such copies of the DataRPM Application. Customer is responsible for making any backups of the Customer Data as Customer deems necessary (provided, however, that Customer may not make or retain any backups or copies of the DataRPM Application or any portion thereof, or any source code of the data science recipes exposed in the DataRPM Application, or any modifications to such source code made by or on behalf of Customer during the term of this Agreement). If the DataRPM Application is installed on a Hybrid Cloud or a Public Cloud, DataRPM will, provided Customer is current on its payment obligations to DataRPM hereunder and compliant with all other terms and conditions of this Agreement, hold the Customer Data on the Hybrid Cloud or Public Cloud for a period of thirty (30) days immediately following the termination of this Agreement, during which Customer will be provided a reasonable opportunity to make a backup copy of the Customer Data. DataRPM may delete the Customer Data from the Hybrid Cloud or Public Cloud following the expiration of the thirty (30) day period. Notwithstanding the foregoing terms, if the Public Cloud is hosted by our authorized reseller or the Hybrid Cloud is supplied and maintained by our authorized reseller, then Customer will be responsible for confirming with our authorized reseller the period during which our authorized reseller will hold the Customer Data and the arrangements for Customer to make a backup copy of the Customer Data. The following provisions will survive termination of this Agreement: sections 2.2, 2.3, 4, 5.3, 6-10 (inclusive), 12 and 13.
6. CONFIDENTIALITY. If the Order Form expressly references a separate nondisclosure agreement mutually executed by Customer and us, then any confidential and/or proprietary materials and information shared by Customer or us will be governed by the terms of that agreement. Otherwise, the terms in this section 6 will apply. During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). A Receiving Party’s Affiliates and the directors, officers, employees and contractors of the Receiving Party or its Affiliates (each a “Representative” and collectively “Representatives”) may have access to the Disclosing Party’s Confidential Information for the sole purpose of exercising Receiving Party’s rights, or performing its obligations, under the Agreement provided that each Representative is subject to confidentiality obligations no less restrictive than those specified in this section 6. All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that Receiving Party reasonably should have known was the Confidential Information of Disclosing Party, will be considered Confidential Information; for the avoidance of doubt, the DataRPM Application, all Feedback, Meta Learning, data recipes (including all source code for the data recipes and any modifications thereto), algorithms, data science workflows and the terms of this Agreement are our Confidential Information. Receiving Party will maintain the confidentiality of Disclosing Party’s Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Disclosing Party’s Confidential Information internally for the purposes contemplated hereunder. The obligations in this section 6 will not apply to any information that: (i) is made generally available to the public without breach of the Agreement, (ii) is developed by Receiving Party independently from Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, (iv) was in Receiving Party’s lawful possession prior to the disclosure to Receiving Party and was not obtained by Receiving Party either directly or indirectly from Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party will return to Disclosing Party all of Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof; provided, however, that this return requirement will not apply to the DataRPM Application or otherwise impact Customer’s use of the DataRPM Application during the License Term so long as Customer and its Permitted Users are doing so in accordance with the terms of this Agreement. Notwithstanding the foregoing, Receiving Party may disclose Disclosing Party’s Confidential Information to any third party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of Disclosing Party’s Confidential Information as this Agreement.
7. WARRANTY; DISCLAIMER. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. In addition, we warrant to Customer that, for ninety (90) days from delivery to Customer, the DataRPM Application, in an unmodified form, will comply with the applicable Documentation in all material respects. Customer’s exclusive remedy, and our sole liability, with respect to any breach of the performance warranty in the preceding sentence will be for us to use commercially reasonable efforts to promptly correct the applicable defects (provided that Customer notifies us in writing of such defect within the applicable warranty period and allow us a reasonable cure period), and if we, at our discretion, reasonably determine that correction of the applicable defects is not economically or technically feasible, terminate Customer’s license to the DataRPM Application and provide Customer a full refund of the Fees paid with respect to the DataRPM Application. The above warranty does not cover Updates, enhancements or new releases to the DataRPM Application, any DataRPM Application provided on an unpaid evaluation or trial basis, or defects to the DataRPM Application due to accident, abuse, service, alteration, modification or improper installation or configuration by Customer, its personnel, any Permitted Users or any third party. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE DATARPM APPLICATION IS PROVIDED “AS IS”, WITH ALL FAULTS, AND WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. WE DO NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE DATARPM APPLICATION.
8. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR EXCEPT AS OTHERWISE STATED IN THIS SECTION, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY, OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS BEYOND SUCH PARTY’S REASONABLE CONTROL (EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY FEES OWED TO US OR OUR AUTHORIZED RESELLER); OR (D) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID AND DUE AND PAYABLE BY CUSTOMER TO US OR OUR AUTHORIZED RESELLER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION ACCRUES (PROVIDED THAT IF NO FEES ARE PAID AND DUE AND PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO US$1,000.00). THE LIMITATIONS AND EXCLUSIONS ON LIABILITY CONTAINED HEREIN WILL NOT APPLY TO CUSTOMER’S BREACH(ES) OF SECTIONS 2.1 OR 2.2 OR EITHER PARTY’S BREACHE(ES) OF SECTION 6.
9. INDEMNITY. We will indemnify, defend and hold Customer harmless from and against all third party claims (and all resulting, to the extent payable to third parties: damages, costs and expenses, including reasonable attorneys’ fees) arising from infringement by the DataRPM Application, or any technology that we deliver as part of the DataRPM Application, of any third party’s United States patent or any third party’s copyright of a country that is a party to the Agreement for Trade Related Aspects of Intellectual Property Rights (“TRIPS”); provided that Customer provides us with prompt written notice of all claims and threats thereof, sole control of all defense and settlement activities, and all reasonably requested assistance with respect thereto. We will not be responsible for any settlement we do not approve in writing. In the event the DataRPM Application (or any part thereof) is held to, or alleged to, infringe, we will have the option, at our discretion, to (A) replace or modify the allegedly infringing DataRPM Application so that it becomes non-infringing, (B) obtain for Customer a license to continue to use the DataRPM Application, or (C) if neither (A) nor (B) are reasonably practicable, terminate this Agreement on thirty (30) days’ notice and (as Customer’s sole remedy) refund to Customer the unused portion of the fees paid in advance to us by Customer or our authorized reseller for the DataRPM Application under this Agreement. We will not be liable for any claim arising from or based upon any of the following: (X) use by Customer or the Permitted Users of a release of the DataRPM Application other than the latest release made generally available by us to our customers; (Y) use by Customer or the Permitted Users of the allegedly infringing DataRPM Application more than thirty (30) days after we have either (i) provided Customer with a replacement or modified version of the DataRPM Application in accordance with option (A) above or (ii) notified Customer of our decision to terminate the Agreement in accordance with option (C) above; or (Z) the combination, operation or use of the DataRPM Application with equipment, data or software programs not supplied by us, or arising from the unlicensed use of the DataRPM Application, or any alteration or modification of the DataRPM Application without our authorization. THE ABOVE INDEMNIFICATION PROVISIONS STATE OUR ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT OR ALLEGED INFRINGEMENT BY US OF ANY INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS IN RESPECT OF THE DATARPM APPLICATION OR ITS USE.
10. NON-SOLICITATION. Until one (1) year after termination of Customer’s license to use the DataRPM Application, Customer will not encourage or solicit any employee or consultant of ours to leave our employment for any reason. For the avoidance of doubt, if Customer procures Professional Services from DataRPM, Customer will also be required to comply with the no hire provisions in section 3.3 of Exhibit B.
11. PUBLICITY. Customer and we agree that either party may disclose the name of the other party and the relationship between the parties, for the purpose of general marketing materials (printed materials or other medium, including as published on either party’s website) and related public communications.
12. AUDIT. At our expense and with reasonable notice to Customer, we or a third party appointed by us may no more than twice within a calendar twelve (12) month period and upon two weeks written notice to Customer, audit Customer’s records and, if necessary, systems on which the DataRPM Application or any Update is installed for the sole purpose of verifying Customer’s compliance with this Agreement. Customer will keep adequate records to verify its compliance with this Agreement. All audits will be conducted during regular business hours at Customer’s offices and will not interfere unreasonably with Customer’s activities. We will treat all of Customer’s records as its confidential information. If any audit reveals that Customer has underpaid fees under this Agreement, Customer will be invoiced for such underpaid fees based on our list price in effect at the time the audit is completed. If the underpaid fees are in excess of five percent (5%) of the total amounts paid by Customer during the period to which such audit relates, Customer will reimburse us for the cost of such audit. We may install, enable and utilize automated license tracking, management and/or enforcement solutions within the DataRPM Application, which Customer may not disrupt or alter.
13. MISCELLANEOUS. The additional terms and conditions (if any) set forth in the Order Form or SOW will apply, and to the extent there is any conflict between those terms and conditions and the terms of this Agreement, the terms and conditions in the Order Form or SOW will prevail, except that if the Order Form or SOW is between Customer and our authorized reseller, then (i) any terms and conditions in the Order Form or SOW imposing obligations on our authorized reseller that are in addition to or different from the obligations we have to Customer pursuant to this End User License Agreement will be born solely by our authorized reseller and our obligations to Customer and limits on our liability will be governed solely by the terms and conditions of this End User License Agreement and (ii) any terms and conditions that conflict with or would otherwise alter the ownership terms and conditions set forth in section 2.3 or section 4 of Exhibit B or Customer’s confidentiality obligations to us under section 6, our rights under sections 10-12, or the governing law, jurisdiction, venue and disclaimer of the applicability of certain laws set forth in this section 13 of this End User License Agreement will have no effect unless expressly agreed to in a written instrument executed by us. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by Customer except with our prior written consent; provided that, Customer may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. To the extent there are any terms and conditions contained in Customer’s purchase order or other documentation supplied by Customer, such terms and conditions will be deemed to be stricken and the terms and conditions of this Agreement will govern. No agency, partnership, joint venture, or employment is created as a result of this Agreement. Any notices in connection with this Agreement will be in writing and sent by first class US mail, confirmed facsimile or major commercial rapid delivery courier service and if to Customer, to the address specified on the Order Form (or such other address as may be properly specified by written notice hereunder) and if to us, to: DataRPM Corporation, 201 Redwood Shores Parkway, Suite 255, Redwood City, CA 94065. Email notice will be authorized to the extent set forth herein. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of law provisions thereof and without regard to the provisions of any state Uniform Computer Information Transactions Act or similar federal, state, local or foreign laws, regulations or conventions. With respect to all disputes arising in relation to this Agreement, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in Boston, Massachusetts. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.
SUPPORT TERMS AND CONDITIONS
Certain capitalized terms used in this Exhibit A, not otherwise defined in this Agreement, shall have the meaning set forth below.
1.1 “Business Hours/Days” means Monday through Friday, 8:00 am to 5:00 pm PST, except for DataRPM holidays.
1.2 “Documentation” means the release notes for the DataRPM Application.
1.3 “Enhancement” means requests for changes in the DataRPM Application which are not currently in its design specification. DataRPM may consider custom enhancement requests for implementation in the next Minor Release or Major Release of the DataRPM Application at an applicable fee.
1.4 “Error” means a reproducible problem with the DataRPM Application which causes it to fail to perform in material accordance with the Documentation.
1.5 “Error Correction” means the use of reasonable efforts to correct Errors.
1.6 “Fix” means the repair or replacement of object or executable code versions of the DataRPM Application to remedy an Error.
1.7 “Severity 1 Error” means a DataRPM Application Error that causes a complete interruption of or material degradation in service or loss of data, and for which there is no viable Workaround available.
1.9 “Severity 2 Error” means a DataRPM Application Error that has been substantiated as a serious inconvenience to DataRPM’s customers, including Severity 1 Errors for which a temporary Workaround is available.
1.10 “Severity 3 Error” means a DataRPM Application Error that causes only a minor impact on Customer’s use of the DataRPM Application or for which there is no reasonable claim of urgency, regardless of whether or not a Workaround exists.
1.11 “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the DataRPM Application.
2. TECHNICAL ASSISTANCE.
During the License Term, DataRPM will provide technical assistance (“Technical Assistance”) to up to two of Customer’s designated employees who have completed DataRPM technical training (“Eligible Support Recipients”) during DataRPM’s Business Hours, consisting of the following:
2.1 DataRPM On-Line Technical Support, which contains a product tutorial, troubleshooting guide and information regarding known work-around and problem resolutions. DataRPM On-Line Technical Support is also available for all Permitted Users.
2.2 Telephone or email support regarding use of the DataRPM Application (for issues not addressed by DataRPM On-Line Technical Support) and Errors.
Additional assistance beyond the scope of standard Technical Assistance, including if Customer needs DataRPM to address issues unique to Customer’s operating environment, business or data, is available to Customer through the purchase of Professional Services.
3. CUSTOMER OBLIGATIONS.
Customer will provide all information and access to its resources as DataRPM reasonably determines necessary to provide Technical Assistance, including Internet or modem access and authorization to access Customer’s servers, physical access to Customer’s facilities, and assistance from Customer’s personnel. DataRPM shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform and/or satisfy its obligations.
4. USE OF TECHNICAL ASSISTANCE.
Eligible Support Recipients may seek Technical Assistance, including reporting Errors, either by using DataRPM’s support ticketing system at http://support.datarpm.com/login/normal or by email at firstname.lastname@example.org.
5. SUPPORT SYSTEM UPDATES.
DataRPM may update its ticketed support system or procedures or implement an online Error reporting system during the License Term and shall provide notice of changes to Customer.
6. ERROR ASSESSMENT PROCESS.
After Customer logs a support ticket, DataRPM Technical Assistance staff will:
6.1 Verify Errors reported by Customer, provided that the Errors can be recreated with an unmodified version of the latest release of the DataRPM Application made generally available by DataRPM and being accessed through an authorized configuration of equipment and software, and
6.2 Determine the severity of the support request as Severity 1 Error, Severity 2 Error, a Severity 3 Error, or not an Error.
6.3 For Severity 1 Errors, DataRPM shall promptly commence the following procedures:
6.3.1 assign engineers to correct the Error;
6.3.2 notify Customer’s management that such Errors have been reported and of steps being taken to correct such Error(s);
6.3.3 provide Customer with periodic reports on the status of the corrections; and
6.3.4 initiate work and exercise reasonable efforts to provide Customer with a Workaround or Fix within twenty-four (24) hours of notice thereof.
6.4 For Severity 2 Errors DataRPM shall commence the following procedures:
6.4.1 notify Customer’s management that such Errors have been reported;
6.4.2 exercise reasonable efforts to include the Fix for the Error in the next regular maintenance release.
6.5 For Severity 3 Errors DataRPM may include the Fix for the Error in the next major or minor release.
6.6 DataRPM’s obligation to provide Technical Support does not extend to: (i) Errors caused by Customer’s equipment or software, connections or use of the DataRPM Application by Customer or its Permitted Users in a manner not consistent with the Documentation, the Agreement, or these Support Terms and Conditions, (ii) modifications to the DataRPM Application made by any party other than DataRPM, (iii) third party acts or systems; or (iv) general Internet problems, force majeure, natural disasters, emergencies, acts of terror or war, or other factors outside of DataRPM’s reasonable control.
7. NEW RELEASES.
DataRPM will provide to Customer all bug fixes and New Releases of the DataRPM Application that are made generally available to all DataRPM customers during the License Term, at no fee, as long as license fees are current. “New Releases” include:
Minor Releases, which include bug fixes (by whatever name known), minor new features or improvements and enhancements; and
Major Releases, which include major new features, improvements and enhancements;
Updates, which include: (i) any subsequent releases of the DataRPM Application that: operate on new or other databases, operating systems, or client or server platforms, or add foreign language capabilities; (ii) new point releases, including those denoted by a change to the right of the first decimal point (e.g., v3.0 to 3.1); (iii) new version releases, regardless of the version name or number, but including those denoted by a change to the left of the first decimal point of the version number or the addition of a date designation or change in an existing date designation.
PROFESSIONAL SERVICES TERMS AND CONDITIONS
1. PROFESSIONAL SERVICES.
1.1 Professional Services. The parties anticipate that Customer may desire to engage DataRPM to perform certain services (other than Support Services) in connection with the licenses or access rights to the DataRPM Application granted to Customer by DataRPM under the Agreement (the “Professional Services”). Subject to the terms and conditions set forth in this Exhibit B, DataRPM shall use commercially reasonable efforts to perform the Professional Services as set forth in each Statement of Work (as defined below). DataRPM will perform the Professional Services in a professional manner in accordance with industry standards.
1.2 Issuance of Statements of Work. Customer may request that DataRPM perform Professional Services by delivering a written request describing the proposed Professional Services. DataRPM will prepare a draft statement of work that incorporates the terms and conditions of the Agreement, including the terms and conditions of this Exhibit B, by reference (each, a “Statement of Work” or “SOW”). Such SOW will describe the fees, costs and expenses payable by Customer to DataRPM in connection with the performance of such Professional Services. Within five (5) business days after receipt of the proposed SOW, Customer will notify DataRPM of its acceptance of such SOW. Until the parties’ mutual execution of the proposed SOW, DataRPM will have no obligation to perform the proposed Professional Services. Each SOW, regardless of whether it relates to the same subject matter as any previously executed SOW(s), will become effective upon execution by authorized representatives of both parties. For the avoidance of doubt, if an Order Form for the provision of DataRPM Application license(s) also includes a description of Professional Services and the fees, costs and expenses payable by Customer to DataRPM in connection with the performance of such Professional Services, then the Order Form will constitute a “Statement of Work” per the terms of this Exhibit B in relation to the Professional Services described in the Order Form.
1.3 Modifications. Customer may at any time request a modification to the Professional Services to be performed pursuant to any particular SOW by written request to DataRPM specifying the desired modifications. DataRPM will, within a reasonable time following receipt of such request, submit an estimate of the cost for such modifications and a revised estimate of the time for performance of the Professional Services pursuant to the SOW. If accepted in writing by Customer, such modifications in the SOW will be performed under the terms of the Agreement and this Exhibit B. Modifications in any SOW will become effective only when a written change request is executed by authorized representatives of both parties.
2.1 Suitability. DataRPM will assign employees and subcontractors with qualifications suitable for the work described in the relevant SOW. DataRPM may replace or change employees and subcontractors in its sole discretion with other suitably qualified employees or subcontractors.
2.2 Customer Responsibilities.Customer will make available in a timely manner at no charge to DataRPM all technical data in DataRPM prescribed format, computer facilities, programs, files, documentation, test data, sample output, or other Customer information and resources required by DataRPM for the performance of the Professional Services. Customer will be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Customer. Customer will provide, at no charge to DataRPM, office space, services and equipment (such as copiers, Internet access, fax machines and modems) as DataRPM reasonably requires to perform the Professional Services.
2.3 No Hire.Customer acknowledges and agrees that the employees and contractors of DataRPM who perform the Professional Services are a valuable asset to DataRPM and are difficult to replace. Accordingly, Customer agrees that, for a period of one (1) year after the termination or expiration of the terms of this Exhibit B in accordance with section 6 below, Customer will not offer employment or engagement (whether as an employee, independent contractor or consultant) to any DataRPM employee or contractor who performs any of the Professional Services. Customer agrees that for each individual that Customer hires or engages in violation of this section 2.3, Customer will pay to DataRPM liquidated damages equal to fifty percent (50%) of the annual cumulative value of salary and benefits paid or payable to that individual by either Customer or DataRPM, whichever amount is greater.
3. FEES AND PAYMENTS. In consideration of the Professional Services, Customer will pay to DataRPM such fees as required by the applicable SOW. Additionally, Customer will reimburse DataRPM for (i) reasonable travel and living expenses incurred by DataRPM’s employees and contractors for travel from DataRPM’s offices in connection with the performance of the Professional Services; (ii) international telephone charges (if applicable); and (iii) any other expenses for which reimbursement is contemplated in the applicable SOW. Except as provided above, each party will be responsible for its own expenses incurred in rendering performance under this Exhibit B and each applicable SOW. Unless otherwise contemplated in a particular SOW, DataRPM will issue invoices to Customer on a monthly basis for amounts due under the SOW, and payment of such amounts will be due within ten (10) days of the date of invoice.
4. PROPRIETARY RIGHTS. Unless otherwise expressly agreed in any particular SOW, ownership of all work product, developments, inventions, technology or materials provided under the Agreement and this Exhibit B will be solely owned by DataRPM, subject to the usage rights granted to Customer under the relevant SOW.
5. LIMITATION OF WARRANTIES AND LIABILITY. DATARPM MAKES NO REPRESENTATIONS OR WARRANTIES UNDER THIS EXHIBIT B, AND CUSTOMER ACKNOWLEDGES THAT THIS EXHIBIT B IS SUBJECT TO ALL DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THE AGREEMENT.
6. TERM; TERMINATION.
6.1 Term.The terms of this Exhibit B commence on the Effective Date of the Agreement and will remain in effect until termination in accordance with section 6.2. Unless otherwise stated in the applicable SOW, the term of each SOW will last until performance thereunder is completed or the SOW is terminated in accordance with section 6.3 below.
6.2.1 Termination for Breach. Either party may, at its option, terminate the terms of this Exhibit B in the event of a material breach by the other party. Such termination may be affected only through a written notice to the breaching party specifically identifying the breach or breaches on which such notice of termination is based. The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and the terms of this Exhibit B will terminate in the event that such cure is not made within such thirty (30)-day period.
6.2.2 Termination due to Customer Insolvency or Bankruptcy. DataRPM may immediately terminate the terms of this Exhibit B upon written notice in the event that Customer becomes insolvent or enters bankruptcy during the term of this Exhibit B.
6.2.3 Termination for Convenience. Either party may terminate the terms of this Exhibit B immediately if there are no SOWs then in effect with Professional Services to be completed.
6.3 Termination of Individual Statements of Work. Unless otherwise expressly stated in an SOW, either party may, at its sole option and for its own convenience, terminate any or all SOWs in effect upon fifteen (15) days prior written notice. Upon such termination, the parties will inform each other of the extent to which performance has been completed through such date, and collect and deliver all work in process. In the event of termination, the parties agree to wind up their work in a commercially reasonable manner and to preserve and deliver items of value created prior to termination. DataRPM will be paid for all work performed and expenses incurred through the date of termination.
6.4 Effect of Termination. In the event of termination or expiration of the terms of this Exhibit B, Customer will promptly pay to DataRPM all amounts due and outstanding hereunder.
6.5 Survival. The provisions of sections 2.3, 3, 4, 5, 6.4 and 6.5 of this Exhibit B will survive the termination or expiration of the terms of this Exhibit B.
TERMS APPLICABLE FOR A PUBLIC CLOUD OR HYBRID CLOUD DEPLOYMENT BY DATARPM
1. APPLICABILITY OF THIS EXHIBIT: The terms set forth in this Exhibit C and DataRPM’s Acceptable Use Policy apply only if DataRPM is providing Customer with access to the DataRPM Application via a Public Cloud or a Hybrid Cloud, as those terms are defined in section 2.1.2 of this Agreement. DataRPM’s provision of access to the DataRPM Application by means of a Public Cloud or Hybrid Cloud is hereinafter referred to as a “Hosted Service”.
2. DELIVERY OF THE HOSTED SERVICE: DataRPM may use third-party vendors and hosting partners to provide the infrastructure, hardware, software, networking, storage and related technology required to operate and provide Customer with the Hosted Service, and such third parties may be granted access to Customer Data in providing such services to DataRPM. Customer understands that the technical processing and operation of the Hosted Service, including Customer Data, may involve (i) unencrypted transfers, (ii) transmissions over various networks; and (iii) changes to conform and adapt to technical requirements of connecting networks or devices.
4. ACCOUNT DATA: Customer can upload Customer Data to the Hosted Service by using the online file uploader that DataRPM makes available to Customer on the DataRPM website or via approved DataRPM APIs. The Customer Data belongs to Customer. Customer grants DataRPM the right to access and use Customer Data for the limited purpose of delivery of Hosted Service, provision of Support Services, or provision of ancillary services (on Customer’s request). Customer, not DataRPM, will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use Customer Data. Customer represents and warrants to DataRPM that Customer has all rights in Customer Data necessary to grant the rights contemplated in the Agreement. DataRPM will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Customer Data. DataRPM reserve the right to establish or modify its general practices and limits relating to storage of Customer Data. While DataRPM employs reasonable efforts to protect Customer Data, namely, limiting access to the Hosted Service to HTTPS, private key access, and use of AWS cloud servers with storage in binary index files distributed over multiple servers and shards, DataRPM does not guarantee compliance with HIPAA, PCI-DSS compliance, or similar privacy requirements for financial or medical industries. Customer expressly acknowledges and agrees that, absent DataRPM’s specific written consent, Customer will not submit any (i) Personal Information (as defined below) nor (ii) any Protected Health Information subject to the Health Insurance Portability and Accountability Act (“HIPAA”) (where “Protected Health Information” has the meaning set forth in HIPAA). “Personal Information” means information about another person that includes an individual’s first name and last name or first initial and last name in combination with any one or more of the following data elements that relate to such individual: (a) Social Security number or other such information; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account. Customer also expressly acknowledges that Customer will not submit Customer Data for the purpose of furthering unlawful criminal activities.
5. CUSTOMER RESPONSIBILITIES: Customer agrees not to (and not to permit anyone else to) interfere or attempt to interfere with the proper operation of the Hosted Service or any activities conducted as part of the Hosted Service or bypass any measures DataRPM uses to prevent or restrict access to the Hosted Service. Customer will not use, post, transmit or introduce into the Hosted Service, or into any infrastructure, hardware, software, networking, storage or related technology used to operate the Hosted Service, any device, software, virus, worm, back door, Trojan Horse, similar harmful code, or routine which interferes or attempts to interfere with the operation of the Hosted Service.
6. LIMITATIONS ON AVAILABILITY OF THE HOSTED SERVICE: It may be necessary for DataRPM to perform scheduled or unscheduled repairs or maintenance to the Hosted Service, which may temporarily degrade the quality of the Hosted Service, or result in a partial or complete outage of the Hosted Service. Although DataRPM cannot guarantee that Customer will receive advance notice of repairs or maintenance, DataRPM will post information concerning scheduled maintenance and/or downtime on the DataRPM website location associated with the Hosted Service. Without limiting the scope of the disclaimers of warranties and limitations on liability set forth in the Agreement, DataRPM will exercise commercially reasonable efforts to resolve any unanticipated and unscheduled downtime of the Hosted Service as soon as possible.
7. TEMPORARY SUSPENSION: DataRPM may suspend Customer’s right to access or use the Hosted Service upon notice to Customer if DataRPM determines that Customer’s use of the Hosted Service (i) poses a security risk to the Hosted Service or any third party, (ii) may adversely impact the Hosted Service or the systems or content of any other customer, or (iii) may subject DataRPM, its Affiliates or any third party to liability. If DataRPM suspends Customer’s right to access or use any portion of the Hosted Service in accordance with this section, Customer will remain responsible for all fees and charges Customer has incurred through the date of suspension and for any applicable fees and charges for any portion of the Hosted Service to which Customer continues to have access, as well as applicable data fees and charges, and fees and charges for in-process tasks completed after the date of suspension. If the circumstances surrounding the suspension are resolved and DataRPM reactivates Customer’s access to the Hosted Service, or the suspended portion thereof, DataRPM reserves the right to charge Customer a reactivation fee. DataRPM’s right to suspend Customer’s right to access or use the Hosted Service or any portion thereof is in addition to any other termination rights DataRPM may have pursuant to the Agreement.
8.TERMINATION OF HOSTED SERVICE: DataRPM may terminate the Hosted Service upon thirty (30) days written notice to Customer (i) if DataRPM’s relationship with a third party partner who provides software or other technology DataRPM uses to provide the Hosted Service expires, terminates or requires DataRPPM to change the way it provides the Hosted Service or other technology as part of the Hosted Service or (ii) if DataRPM believes providing the Hosted Service could create a substantial economic or technical burden for DataRPM or a material security risk. In the event DataRPM terminates the Hosted Service in accordance with this section, DataRPM will refund to Customer the unused portion of any prepaid subscription fees as of the expiration of the thirty (30) day termination notice period. Our right to terminate the Hosted Service pursuant to this section is in addition to any other termination rights DataRPM may have pursuant to the Agreement.