1. Site Content
(a) Datalakes Content:
(b) Third Party Content:
(c) Limited Site Content License:
Except as provided in Section 1.4 below, Datalakes grants you the limited, revocable, non-transferable, non-exclusive right to use the Site and the associated Datalakes Content and Third Party Content (collectively, “Site Content”) by displaying the Site Content on your computer, and downloading and printing pages from the Site under the condition that (i) such activity is solely for your personal, education or other non-commercial use, (ii) you do not modify or prepare derivative works from the Site Content, (iii) you do not obscure, alter or remove any notice of copyright set forth on any Site pages or Site Content, (iv) you do not otherwise reproduce, re-distribute or publicly display any of the Site Content and (v) you do not copy any Site Content to any other media or other storage format.
(d) User Content:
If you elect to display, post, submit or otherwise make available to others, on the Site any content or works of authorship, including, without limitation, images, software, audio files, text, or any other materials (collectively, “User Content”), you hereby grant to Datalakes a perpetual, irrevocable, royalty-free, worldwide, non-exclusive right and license, including the right to grant sublicenses to third parties, to use, reproduce, publicly display, publicly perform, prepare derivative works from and distribute such User Content, for any purpose. In addition, you hereby irrevocably represent and warrant to Datalakes that (i) you have all necessary power, authority, right, title and/or licenses to grant to Datalakes the foregoing right and license and (ii) the posting, submission, display by you of User Content on the Site, and the exercise by Datalakes of the foregoing license does not and will not (1) violate any law or (2) infringe any intellectual property right of any third party. You hereby irrevocably agree to indemnify, defend and hold Datalakes, its affiliates, directors, officers, employees and agents harmless from and against any and all loss, costs, damages, liabilities and expenses arising out of or related to any third party claim resulting from a breach of the foregoing representations and warranties.
To the extent that the Site contains Datalakes Content or Third Party Content that is software available for download (“Software”), such Software is subject to, and your use of such Software is governed by, an applicable license agreement (each a “License Agreement”) accompanying, provided with, linked to or embedded in, such Software. You may not use any Software unless you first read and agree to all of the terms and conditions of the applicable License Agreement. ANY SOFTWARE AVAILABLE ON THE SITE IS WARRANTED, IF AT ALL, IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE APPLICABLE LICENSE AGREEMENT. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THE APPLICABLE LICENSE AGREEMENT, OR TO THE EXTENT NOT PERMITTED UNDER APPLICABLE LAW, DATALAKES EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
All trademarks, service marks and logos included on the Site (“Marks”) are the property of Datalakes or third parties, and you may not use such Marks without the express, prior written consent of Datalakes or the applicable third party.
(g) Monitoring of Site Content:
Datalakes may, but is not obligated to, monitor Site Content, User Content and your use of the Site. Datalakes reserves the right to accept, reject or modify any Site Content or User Content, but assumes no liability based on its acceptance, rejection, modification or failure to modify any Site Content or User Content.
2. Your Use of the Site
(a) Submission of User Content:
In connection with your use of the Site, you agree not to submit any User Content which (i) is unlawful, (ii) violates any right of publicity or invades the privacy of others, (iii) constitutes obscene, pornographic, indecent, profane or otherwise objectionable material, (iv) is discriminatory, hateful or bigoted toward, or abusive of, any group or individual, (v) is libelous or defamatory or (vi) violates any applicable law or government regulation.
(b) Prohibited Conduct:
You may not use the Site to post, transmit or link to (i) any advertisement, promotional materials or solicitation related to any product or service that is competitive with Datalakes products or services or (ii) software or programs which contain any harmful code, including, but not limited to, viruses, worms, time bombs or Trojan horses. You may not deploy to the Site any robot, spider, site search/retrieval application, or other application designed to retrieve, index, “data mine,” information from the Site.
(c) Registered Users:
If you become a registered user of the Site in order to gain access to support or other limited access parts of the Site, you agree (i) that the information you provide to Datalakes in connection with your registration will be current, complete and accurate, (ii) not to choose a user name that violates any law or the intellectual property rights of others, or is offensive; provided that Datalakes reserves the right to reject the use of any user name for any reason or no reason, (iii) not to transfer, sell, convey or assign the right to use the Site to any third party without the prior written consent of Datalakes and (iv) not to permit any third party to use your user name and password to access the Site. You further agree that you are responsible for the conduct of any party that uses your account, whether or not authorized by you, and for any breach of the security of the Site related to the use of your user name and/or password.
You hereby irrevocably agree to indemnify, defend and hold Datalakes, its affiliates, directors, officers, employees and agents harmless from and against any and all losses, costs, damages, liabilities and expenses (including attorneys’ fees) arising out of or related to you use of the Site.
(e) Export Control:
You hereby represent and warrant that (i) you understand and acknowledge that some Site Content may be subject to export, re-export and import restrictions under applicable law, (ii) you will not use the Site or any Site Content in a manner that violates the U.S. Export Administration Act of 1979 and the regulations of the U.S. Department of Commerce and (iii) you are not located in, under the control of, or a national or resident of any country to which the United States has embargoed goods.
3. Linked Websites
4. Disclaimer of Warranties and Limitation of Liability
(a) Warranty Disclaimer:
THE SITE AND THE SITE CONTENT ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND DATALAKES MAKES NO WARRANTY THAT THE SITE OR THE SITE CONTENT IS COMPLETE, SUITABLE FOR YOUR PURPOSE, OR ACCURATE. ON BEHALF OF ITSELF AND ITS LICENSORS, DATALAKES HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED, STATUTORY OR OTHER WARRANTIES WITH RESPECT TO THE SITE, AVAILABILITY OF THE SITE AND THE SITE CONTENT, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFIRNGEMENT. THE ENTIRE RISK AS TO RESULTS OBTAINED THROUGH USE OF THE SITE AND/OR THE SITE CONTENT RESTS WITH YOU AND DATALAKES MAKES NO REPRESENTATION OR WARRANTY THAT THE SITE AVAILABILITY WILL BE UNINTERRUPTED, OR THE SITE AND/OR THE SITE CONTENT WILL BE ERROR FREE.
(b) Limitation of Liability:
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT DATALAKES SHALL NOT BE LIABILE TO YOU FOR ANY DAMAGES ARISING OUT OF OR CONNECTED TO YOUR USE OF, OR INABILITY TO USE, THE SITE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DIRECT, INDIRECT, INCIDENTAL,CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY OR STATUTORY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OR PROFITS, LOSS OF REVENUE, LOSS OF DATA., LOSS OF GOODWILL OR FOR ANY COST OF COVER OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF DATALAKES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE LEGAL THEORY UNDER WHICH DAMAGES ARE SOUGHT, WHETHER IN BREACH OF CONTRACT OR IN TORT, INCLUDING NEGLIGENCE.
6. Location of Site and your Use
Datalakes operates or controls the operation of this Site from offices in USA. In addition, the Site may be mirrored, and other websites operated or controlled by Datalakes may be located, in various countries. Datalakes makes no representation or warranty that all of the features of this Site will be available to you from specific countries, or that they are permitted to be accessed from any country. You acknowledge that you are solely responsible for any decision by you to use of this Site from your locations, and that such use may be subject to, and that you are responsible for, compliance with applicable local laws.
Company Datalakes provides the www.datalakes.com Web site as a service to the public and Web site owners. Company Datalakes is not responsible for, and expressly disclaims all liability for, damages of any kind arising out of use, reference to, or reliance on any information contained within the site. While the information contained within the site is periodically updated, no guarantee is given that the information provided in this Web site is correct, complete, and up-to-date. Although the Company Datalakes Web site may include links providing direct access to other Internet resources, including Web sites, Company Datalakes is not responsible for the accuracy or content of information contained in these sites. Links from Company Datalakes to third-party sites do not constitute an endorsement by Company Datalakes of the parties or their products and services. The appearance on the Web site of advertisements and product or service information does not constitute an endorsement by Company Datalakes, and Company Datalakes has not investigated the claims made by any advertiser. Product information is based solely on material received from suppliers.
1.1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Ancillary Services” means fee-based implementation, training or other consulting services that Datalakes may perform as described in a SOW executed by the parties pursuant to this Agreement.
1.3. “Customer Data” means all Customer data submitted, stored, posted, displayed, transmitted or otherwise used together with the Subscription Services.
1.4. “Documentation” means the online user instructions and help files made available by Datalakes as part of the Subscription Services, as may be updated from time to time by Datalakes and made available on www.datalakes.com
1.5. “Order Form” means the order form for Services purchased from Datalakes. Customer may purchase additional Subscription or Ancillary Services from time to time, pursuant to an additional Order Form as may be mutually agreed to by the parties in writing.
1.6. “Services” means the Subscription Services and any Ancillary Services.
1.7. “Statement of Work” or “SOW” means a statement of work entered into and executed by the parties describing Ancillary Services to be provided by Datalakes to Customer.
1.8. “Subscription Services” means the online, web-based data analytics and reporting technologies provided by Datalakes via the URL www.Datalakes.com or such other websites designated by Datalakes, including: (a) all proprietary technology (software, hardware, processes, algorithms, user interfaces, know-how, techniques, templates, designs and other tangible or intangible technical material or information) of Datalakes, its licensors and service providers used by Datalakes to provide the Subscription Services; and (b) associated support and maintenance services, as may be applicable.
1.9. “Third Party Offerings” means Customer-designated services delivered or performed by third parties independently of Datalakes (which Subscriptions Services rely on to obtain Customer Data) related to the Subscription Services, or other Customer-designated online, web-based CRM, ERP, or other business application subscription services, and any associated offline products provided by third parties, that interoperate with the Subscription Services.
1.10. “Users” means Customer’s employees, consultants, contractors, or agents who are authorized by Customer or its Affiliates to access and use the Subscription Services and who have been supplied user identifications and passwords by Customer for such purpose, in accordance with this Agreement.
- PURCHASED SERVICES
2.1. Provision of Purchased Subscription Services. Datalakes will make any purchased Subscription Services available to Customer pursuant to this Agreement and the relevant Order Form during the subscription term set forth in the Order Form (the “Subscription Term”). Customer agrees that its purchase of Subscription Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Datalakes regarding future functionality or features. Customer’s use of the Subscription Services includes the right to access all functionality available in the purchased Subscription Services as of the effective date of this Agreement or such other expressly specified date in the Order Form. Unless otherwise determined by Datalakes at its sole discretion, subsequent enhancements to the Subscription Services made generally available to all subscribing customers will be made available to Customer at no additional charge. Notwithstanding the foregoing, new features, functionality or enhancements to the Subscription Services may be marketed separately by Datalakes and may require the payment of additional fees. Datalakes will determine, in its sole discretion, whether access to such new features, functionality or enhancements will require an additional fee. Unless otherwise set forth in an Order Form, this Agreement will apply to any updates, upgrades and new modules or offerings subsequently provided by Datalakes to Customer as part of any purchased Subscription Services.
2.2. Ancillary Services. Datalakes will provide Customer with Ancillary Services as set forth in mutually executed SOWs or Order Forms. Each SOW should include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to this Agreement. If either Customer or Datalakes requests a change to the scope of Ancillary Services described in a SOW, the party seeking the change shall propose such change by written notice. Promptly following the other party’s receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Datalakes will prepare a change order document describing the agreed changes to the SOW and any applicable change in fees and expenses (a “Change Order”). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement./p>
- SUBSCRIPTION SERVICES
3.1 3.1. Datalakes Obligations; License Grant.
3.1.1. Availability. Datalakes will use commercially reasonable efforts to make the purchased Subscription Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from Datalakes’s availability commitments: (a) regularly scheduled downtime (with regard to which Datalakes will endeavor to provide at least 48 hours advance notice), which is currently scheduled for every Friday 11pm – Saturday 3am Pacific Time and as otherwise set forth at support.Datalakes.com); or (b) any unavailability caused by circumstances beyond Datalakes’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings.
3.1.2. License to use Datalakes Technology. During the Term of this Agreement, Datalakes hereby grants Customer a non-exclusive, revocable, limited internal use license to access and use the Subscription Services and provide its Users with access to the Subscription Services. Customer shall be responsible for ensuring that its Users safeguard and protect the Subscription Services and account passwords in the same manner Users protect Customer’s own product and technology. Datalakes will host the Subscription Services and may update the functionality and user interface of the Subscription Services from time to time in its sole discretion as part of its ongoing improvement of the Subscription Services. The Subscription Services may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified either in the Order Form or in the Documentation.
3.1.3. Support. Datalakes shall provide the support option as set forth in the Order Form for Customer’s use and access of the Subscription Services in accordance with the then effective “Datalakes Support” practices. In the event a support option is not specified in the Order Form, Customer shall be entitled, at a minimum, to the “Essential” level support option. Customer is and shall be responsible for all direct support of its Users.
3.2. Use and Protection of Customer Data. Subject to this Agreement, including Datalakes’s confidentiality obligations, Customer hereby grants Datalakes a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Datalakes to provide the Services to Customer. To the extent that receipt of the Customer Data requires Datalakes to access and upload Customer Data from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and Datalakes hereby expressly agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Datalakes and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Datalakes will maintain reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of Customer Data. Datalakes reserves the right to modify its privacy policies in its discretion from time to time, and shall provide notice of such modifications to designated Customer contacts on and through the Datalakes support website.
3.3. Customer’s Responsibilities; License Restrictions and Platform Limitation.
3.3.1 Customer and Users. Customer shall not permit access to or use of the Services by anyone other than designated Users. Customer is responsible for its Users’ compliance with the terms of this Agreement, for its Users’ use of the Services, and for ensuring that Users maintain the confidentiality of their passwords and user names. Customer agrees that it is liable for any acts or omissions of its Users that would otherwise constitute a material breach of this Agreement by any User of the Subscription Services (including with respect to unauthorized data uploads).
3.3.2 Restrictions. Customer and its Users will not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit the Subscription Services or make the Subscription Services available to any third party, other than to Users or as otherwise authorized under this Agreement; (b) use the Subscription Services to collect, transmit or process (i) any material that is infringing, obscene, threatening, libelous, or otherwise unlawful or tortious, including material that is harmful to children or violates third party privacy rights; or (ii) any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” (“PHI”) subject to and defined by the Health Insurance Portability and Accountability Act (“HIPAA”), or 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: Social Security number, driver’s license number or state-issued identification card number, 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 an individual’s financial account (“Personal Information”); (c) use the Subscription Services to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; (d) interfere with or disrupt the integrity or performance of the Subscription Services; or (e) attempt to gain unauthorized access to the Subscription Services or its related systems or networks; (f) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Subscription Services; (g) access the Subscription Services for the purpose of building a similar or competitive product; or (h) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof or otherwise attempt to discover any source code or modify the Subscription Services. Customer acknowledges and agrees that Datalakes shall have no liability to Customer or its Users for any data submitted that is Protected Health Information (without the Datalakes Compliance Package) or Personal Information. Notwithstanding the above, in the event Customer elects the applicable Datalakes Compliance Package, signs Datalakes Business Associate Agreement, and complies with Datalakes submission policies for such data, Customer may use the Subscription Services to collect, transmit or process PHI.
3.4. Temporary Suspension. Datalakes monitors all use of the Subscription Services for security and operational purposes. Datalakes may temporarily suspend Customer’s or its Users’ access to the Subscription Services in the event that either Customer or its Users are engaged in, or Datalakes in good faith suspects Customer or its User is engaged in, any unauthorized conduct (including any violation of this Agreement, any applicable law or third party right, including the terms of any Third Party Offering on which Customer’s use of the Subscription Services relies). Datalakes will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Datalakes’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. Customer agrees to (a) notify Datalakes immediately of any unauthorized use of any password or account or any other known or suspected breach of security related to the Subscription Services; (b) report to Datalakes immediately, and use reasonable efforts to immediately stop, any copying or distribution of Customer Data that is known or suspected by Customer or its Users as being unlawful or unauthorized; and (c) not impersonate another User or provide false identity information to gain access to or use the Subscription Services or Datalakes Application. A suspension may take effect for Customer’s entire account, and Customer understands that such suspension would therefore include Affiliate and/or User sub-accounts. Customer agrees that Datalakes will not be liable to Customer or to any Affiliate or User or any other third party if Datalakes exercises its suspension rights as permitted by this Section.
3.5. Third Party Web Sites, Products and Services. The Subscription Services may rely on or require that Customer access Customer-designated Third Party Offerings to obtain Customer Data from such Third Party Offering. Customer’s or its User’s use of third party websites must at all times comply with the terms of service governing such websites. Customer understands and agrees that the availability of the Subscription Services, or certain features and functions thereof, is dependent on the corresponding availability of Third Party Offerings or specific features and functions of Third Party Offerings. Datalakes will not be liable to Customer or any third party in the event that changes in Third Party Offerings cause the unavailability of the Subscription Services or any feature or function thereof. To the extent that Datalakes requires that Customer grant Datalakes authorizations, passwords or other user credentials to a Third Party Offering (“Third Party Offering Access Codes”) to retrieve Customer Data or to enable interoperability with the Subscription Services, Customer shall promptly provide such Third Party Offering Access Codes. Datalakes shall not share, reassign, divulge or disclose any Third Party Offering Access Codes except to Datalakes employees or authorized contractors specifically engaged in the performance of the Services. Third Party Offering Access Codes shall constitute Customer’s Confidential Information under this Agreement.
3.6. Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for Datalakes to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Datalakes of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Datalakes at the e-mail address specified by its Users for login purposes. In addition, Customer agrees that Datalakes may rely and act on all information and instructions provided to Datalakes by Users from the above-specified e-mail address. Datalakes may, in its discretion, share Customer contact information with third party service providers for the purposes of providing information about maintenance schedules, or Subscription Service releases or configurations. If Customer chooses to opt-out of such messages, or does not register to receive Support communications, Datalakes shall not be responsible for any issues, errors, defects in the Subscription Services that could have been avoided by Customer acts on such messaging
3.7. Federal Government End User Provisions. If Customer or any User is the US Federal Government, Datalakes provides the Services, including related software and technology, solely in accordance with the terms of this Section 3.7. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Datalakes to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreements.
- FEES AND PAYMENT TERMS
4.1. Fees. Customer agrees to pay all fees specified in all Order Forms and SOWs using an industry-standard payment method Datalakes supports. Except as otherwise specified in this Agreement or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of usage, (c) except as otherwise set forth in Section 8.1, payment obligations are non-cancelable and fees paid are non-refundable, and (d) the Services purchased cannot be decreased during the relevant Subscription Term specified on the Order Form. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding.
4.2. Invoices and Payment. All Subscription Services fees will be invoiced in advance as set forth in the applicable Order Form. Fees for Ancillary Services will be invoiced as set forth in an applicable SOW and/or Order Form. Except as otherwise set forth in the applicable Order Form or SOW, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.
4.3. Overdue Charges. If Datalakes does not receive fees by the due date, then at Datalakes’s discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Datalakes may condition future Services purchases and Order Forms on payment terms shorter than those specified in Section 4.2 (Invoices and Payment).
4.4. Suspension of Service. If any amounts owed by Customer for the Services are thirty (30) or more days overdue, Datalakes may, without limiting Datalakes’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full.
4.5. Payment Disputes. Datalakes agrees that it will not exercise its rights under Section 4.3 (Overdue Charges) or 4.4 (Suspension of Service) if the applicable charges are under reasonable and good faith dispute and Customer is cooperating diligently to resolve the dispute.
4.6. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from Datalakes’s provision of the Services hereunder, except any taxes assessed on Datalakes’s net income. If Datalakes is required to directly pay Taxes related to Customer’s use of the Subscription Services or receipt of any Ancillary Services hereunder, Customer agrees to promptly reimburse Datalakes for any amounts paid by Datalakes.
- PROPRIETARY RIGHTS
5.1. Subscription Services. Datalakes, its licensors and its service providers own all right, title and interest in and to the Subscription Services, including all related intellectual property rights. Datalakes reserves all rights not expressly granted to Customer under this Agreement. Neither Customer nor any Users will delete or in any manner alter the copyright, trademark, and other proprietary notices of Datalakes appearing on the Subscription Services or any portion thereof. Additionally, Datalakes shall exclusively own all right, title and interest in and to any and all suggestions, enhancement requests, recommendations or other feedback provided by Customer and its Users relating to the Subscription Services (“Feedback”), and Customer hereby assigns to Datalakes all of its right, title, and interest in and to the Feedback, including all intellectual property rights therein or relating thereto. At Datalakes’s reasonable request and expense, Customer will execute necessary documents and take such further acts as Datalakes may reasonably request to assist Datalakes to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
5.2. Customer Data. As between Datalakes and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement.
5.3. Deliverables. As between Datalakes and Customer, Customer shall exclusively own all right, title and interest in and to any Deliverables that constitute Customer Data or a modification, translation, abridgment, adaptation or other derivative work of Customer Data (“Customer Deliverables”), and Datalakes hereby assigns and transfers to Customer any right, title and interest that Datalakes may acquire in or to any Customer Deliverables upon receipt of payment in full from Customer. Except for Customer Deliverables, Datalakes shall exclusively own all right, title and interest in and to the Deliverables and related intellectual property rights described in applicable SOWs. Subject to this Agreement, Datalakes hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted in connection with an assignment under Section 11.7 of this Agreement) license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Subscription Services. Datalakes shall also exclusively own all right, title and interest in and to the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by Datalakes to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned or transferred, to Customer, on the same terms as the Datalakes owned Deliverables.
5.4. Statistical Information. Datalakes may monitor Customer’s use of the Services and use data related to Customer’s use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services. Customer agrees that Datalakes may make such aggregate and anonymous information publicly available, provided that such information does not incorporate any Customer Data and/or identify Customer or its Confidential Information. Datalakes retains all intellectual property rights in such statistical and performance information.
6.1. “Confidential Information” “Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the coverage of these confidentiality obligations, the parties acknowledge and agree that: (a) Customer Confidential Information shall include the Customer Data and Third Party Offering Access Codes; (b) Datalakes Confidential Information shall include the Subscription Services, Documentation, the Deliverables and Tools; and (c) Confidential Information of each party shall include, the terms and conditions of this Agreement, pricing and other terms set forth in all Order Forms and SOWs hereunder, as well as marketing plans, budgets, financial information, technology, technical information, methods, processes, techniques, designs, computer programs and other business information disclosed by such party.
6.2. Treatment of Confidential Information. The Receiving Party shall: (a) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information (but in no event less than reasonable care); and (b) not use or disclose any Confidential Information of the Disclosing party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission.
6.3. Exceptions. Confidential Information shall not include information that: (a) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (b) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (c) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
6.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process. The Receiving Party must, however: (a) provide the Disclosing Party with prompt written notice of the requirement to disclose, (b) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such disclosure, and (c) limit its disclosure to that strictly required by law, regulation or legal process.
6.5. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
- WARRANTIES; DISCLAIMERS
7.1. Warranties. Each party warrants that it has the legal authority to enter into this Agreement. Datalakes warrants to Customer that: (a) the Subscription Services will materially conform to the relevant Documentation, and (b) Ancillary Services will be performed in a competent and workmanlike manner in accordance with generally accepted industry standards.
7.2. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, DATALAKES AND ITS LICENSORS MAKE NO ADDITIONAL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DATALAKES AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. DATALAKES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (E) THE SUBSCRIPTION SERVICES OR THE SERVER(S) THAT MAKE THE SUBSCRIPTION SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATALAKES AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.1. Indemnification by Datalakes. Datalakes, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding alleging that Customer’s use of the Subscription Services in accordance with this Agreement infringes a third party’s United States copyright or patent issued as of the Effective Date. The foregoing obligations shall not apply if such claim arises out of (a) Customer’s use of infringing Customer Data (b) improper use of the Subscription Services in combination with any software, hardware, network or system not supplied by Datalakes where the alleged infringement relates to such combination, (c) any modification or alteration of the Subscription Services other than by Datalakes, (d) Customer’s continued use of the Subscription Services after Datalakes notifies Customer to discontinue use, and (e) Customer’s violation of applicable law. If any claim which Datalakes is obligated to defend has occurred, or in Datalakes’s determination is likely to occur, Datalakes may, in its sole discretion and at its option and expense (i) obtain for Customer the right to use the allegedly infringing item, (ii) substitute a functionality equivalent, non-infringing replacement for such item, (iii) modify such item to make it non-infringing and functionally equivalent, or (iv) terminate this Agreement and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Subscription Services due to such claim and the remaining days in the then-current Subscription Term.
8.2. Indemnification by Customer. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (a) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent issued as of the Effective Date; or (b) arising from occurrence of the conditions set forth in Section 8.1(a)-(e) above.
8.3. Conditions. The parties’ obligations under this Section 8 are contingent upon the indemnified party (a) giving prompt written notice to the indemnifying party of any claim under this Section, (b) giving the indemnifying party sole control of the defense or settlement of the claim, and (c) cooperating in the investigation and defense of such claim(s). The indemnifying party shall not settle or consent to judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 8 ARE THE SOLE OBLIGATIONS OF THE INDEMNIFYING PARTY AND EXCLUSIVE REMEDIES AVAILABLE TO THE INDEMNIFIED PARTY IN THE EVENT OF AN APPLICABLE THIRD PARTY CLAIM.
- LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT FOR BREACH OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF THE LICENSES GRANTED HEREIN AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN AGGREGATE THE TOTAL AMOUNTS PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT TERMS).
9.2. Exclusion of Consequential and Related Damages. EXCEPT FOR BREACH OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF THE LICENSES GRANTED HEREIN AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF DATALAKES AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
- TERM AND TERMINATION
10.1. Subscription Services Term; Renewal. Customer’s subscription rights to use the Subscription Services begins on the start date specified in the Order Form and continues for the three (3) year period thereafter as set forth therein (each a “Subscription Term”). Thereafter, the Subscription Services will automatically renew for additional one (1) year periods (each a “Renewal Term”) at the list Subscription Services fee prices in effect at the time of any such renewal, unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the applicable Subscription Term or any Renewal Term.
10.2. Termination for Cause. This Agreement and applicable Order Forms and SOWs may be terminated by either party for cause as follows: (a) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, (b) effective immediately and without notice if the other party ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. Datalakes may temporarily cease performance of its obligations during any cure period.
10.3. Retrieval of Customer Data. In the event of termination or expiration of the Subscription Term under an Order Form, Datalakes shall make Customer Data available for download by Customer in the format in which it is stored in the Subscription Services, provided Customer requests such return of Customer Data and pays all outstanding charges hereunder in full within 30 days after the termination or expiration effective date. After such 30-day period, Datalakes shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
10.4. Survival. Except to the extent expressly provided to the contrary herein, Sections 4 through 11 shall survive the termination of this Agreement.
11.1. Relationship. Datalakes and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the parties. This is a non-exclusive arrangement.
11.2. Entire Understanding; Modifications. This Agreement, including all Order Forms and SOWs hereto, constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, oral or written, regarding the subject matter covered by this Agreement. Except as set forth in this Agreement, no modifications, amendments or waivers shall be effective unless mutually agreed by the parties in writing. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form or SOW, the terms of such Order Form or SOW shall prevail, but only with respect to the specific Services purchased under such Order Form or SOW. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order or in any other ordering documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
11.3. Waiver. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement.
11.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision shall be modified and interpreted by the court so as best to accomplish the intent of the original provision to the fullest extent possible. The invalidity or unenforceability of any provision shall not affect any of the other provisions of this Agreement.
11.5. Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the United States and the State of North Carolina. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
11.6. Publicity. Datalakes may reference and use Customer’s name, Logo and trademarks and may disclose the nature of the Services provided hereunder in Datalakes business development and marketing efforts, including without limitation its web site.
11.7. Assignment. Customer may not assign this Agreement, Order Forms or SOWs to any third party without the prior written consent of Datalakes, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section shall be void. this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third party beneficiaries to this Agreement.
11.8. Notices. Datalakes may give notice to Customer by means of a general notice through the Subscription Services interface, electronic mail to Customer’s e-mail address on record in Datalakes’s account information, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record in Datalakes’s account information. Customer may give notice to Datalakes by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Datalakes LLC, 222 S Church St. Charlotte, NC 28202, Attention: Legal Department. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
11.9. Export. The Services utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Subscription Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Subscription Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Subscription Services may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Datalakes and its licensors make no representation that the Service is appropriate or available for use in other locations. Each party shall be solely responsible for its required compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
11.10. Force Majeure. Except for performance of a payment obligation, neither party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate this Agreement for convenience upon written notice to the other party.