Datafi Cloud Terms Of Service

Last Updated: 06/02/2021

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING 

THE SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

 

IF YOU ARE USING THE SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

 

AGREEMENT

These Datafi Terms of Service (“Agreement”) are entered into by and between Datafi Labs Inc. (“Datafi”) and the entity or person placing an order for or accessing the Service (“Customer” or “you”). Under this Agreement, Customer may connect Customer Data in its original format to Customer’s Account and process the data using the Service.

 

The “Effective Date” of this Agreement is the date of Customer’s initial access to the Service (as defined below) through any online provisioning, registration or order process.

 

Modifications to this Agreement: From time to time, Datafi may modify this Agreement. Unless otherwise specified by Datafi, changes become effective for Customer upon renewal of the then current Subscription Term (as defined below) after the updated version of this Agreement goes into effect. Datafi will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account (as defined below), email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term, and in any event continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If Customer does not agree to the changes, Customer may terminate this Agreement in accordance with Section 8.2 (Termination).

1.   THE SERVICE

1.1.  Service Description.  The Datafi Service is a cloud-based data enablement platform designed to allow customers to securely connect and access structured and semi-structured data from multiple sources. Customer Data connected to the Service is accessed from Customer’s Account (“Account”) and Customer may query, analyze and define data policy sets and data privacy to the data as required to use the Service. As used in this Agreement, the “Service” means the edition of the Datafi Service selected by Customer during registration, and as further described in the Documentation.

 

1.2.  Subscription Term. Each Service is made available to Customer on a subscription basis for a one-month subscription term (“Subscription Term”). The Subscription Term will automatically renew for additional one-month periods until terminated in accordance with Section 8.2 (Termination).

 

1.3.  Access to the Service. Customer may access and use the Service in accordance with the terms and conditions of this Agreement and the Documentation. Use of and access to the Service is permitted only by personnel of Customer designated by Customer (“Users”). Customer shall be responsible for compliance by each User with all of the terms and conditions of this Agreement. Any data provided by a User that is connected to the Service is Customer Data for the purposes of this Agreement.

 

1.4.  Client Software. To the extent use of the Service requires Customer to install Client Software, subject to all of the terms and conditions of this Agreement, Datafi grants to Customer a limited, non-transferable, non- sublicensable, non-exclusive license during any applicable Subscription Term to use the object code form of the Client Software internally, but only in connection with Customer’s use of the Service and otherwise in accordance with the Documentation and this Agreement.

 

1.5.  Contractors and Affiliates. Customer may permit its independent contractors and consultants (“Contractors”) and Affiliates to serve as Users, provided (a) Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and (b) any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer.

 

1.6.  Sample Data. Datafi may make available sample data (including from third-party sources) solely for Customer’s internal testing, evaluation, and other non-productive use during the applicable Subscription Term (“Sample Data”). Customer acknowledges that Sample Data is example data only, which may not be complete, current, or accurate. Customer will not (and will not permit any third party to) copy or export any Sample Data and agrees that Datafi may delete or require Customer to cease using Sample Data at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SAMPLE DATA IS PROVIDED “AS IS” AND DATAFI WILL HAVE NO WARRANTY, INDEMNITY OR OTHER OBLIGATIONS WITH RESPECT TO SAMPLE DATA.


1.7.   Data Sharing.

(a) Data Sharing Generally. The Datafi Service includes the capability for Customer, in its sole discretion, to share Customer Data with other Datafi customers and/or Read Only Users (as defined below), and access or use data from other Datafi customers. The Datafi customer sharing its data is a “Provider,” and the Datafi customer accessing or using shared data is a “Consumer.”

(b) When Customer is Provider. Provider may, in its sole discretion, grant Consumer access to all or part of Provider’s Customer Data as permitted by the functionality of the Service. Provider acknowledges and agrees that: (a) Consumers will have access provided by Provider (including to view, download, and query the Customer Data) and that it is Provider’s sole responsibility to evaluate any risks related to its sharing of Customer Data with Consumers; and (b) Datafi has no control over, and will have no liability for, any acts or omissions of any Consumer with respect to Provider’s sharing of Customer Data. At all times Provider remains responsible for its Customer Data as set forth in the Agreement.

(c) When Customer is Consumer. By accessing or using Provider’s data, Consumer acknowledges that (a) Datafi has no liability for such data, (b) Datafi may collect information about Consumer’s use of and access to the Service and to Provider’s data (including identifying Consumer in connection with such information) and share it with Provider.

(d) Read Only Accounts. When Customer is Provider, Customer may, in its sole discretion (using a mechanism provided by Datafi) authorize third party entities that are not Datafi customers (“Read Only Consumers”) to access read-only account on the Datafi Service (“Read Only Accounts”) solely to consume Customer Data shared by Customer; provided that: (a) Customer shall be responsible for paying for any usage of the Read Only Accounts; (b) Users authorized by the Read Only Consumer (“Read Only Users”) shall be prohibited from uploading any data into the Read Only Accounts; (c) such Read Only Users must submit support requests only as set forth in the Datafi Support Policy; (d) Customer represents that it has the right to share with Datafi any personal information about Read Only Users that Customer provides to Datafi; (e) Customer shall be responsible for any acts or omissions on the part of Read Only Users in their use of the Read Only Accounts as if they were acts or omissions of Customer; and (f) the following sentence is added to Section 11.2 of the Agreement: “Customer will defend, indemnify, and hold harmless Datafi from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) brought by any Read Only Consumers or Read Only Users or arising from or relating to any acts or omissions by Read Only Consumers or Read Only Users in their use of the Read Only Accounts.”

 

1.8.  General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Service to a third party (except as expressly set forth in Section 1.5 (Contractors and Affiliates)) or in a service bureau or outsourcing offering; (b) use the Service to provide, or incorporate the Service into, any general purpose data service (or otherwise directly expose the functionality of the Service) for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Datafi); (d) remove or obscure any proprietary or other notices contained in the Service (including any reports or data printed from the Service); (e) use the Service in violation of the Acceptable Use Policy; (f) use any portion of the Service to create a competitive service, product or technology; or (g) access the Service if Customer is a direct competitor of Datafi, except with Datafi’s prior written consent. Notwithstanding anything to the contrary in this Agreement, including the DPA or Security Policy, (i) Customer may not conduct any security testing of Datafi or the Service, including but not limited to, penetration testing, and (ii) Customer may only exercise any audit rights through the review of Datafi’s applicable third-party certifications and/or audits, subject to reasonable additional security and confidentiality controls.

 

1.9.  Preview Service Terms. Datafi may make available to Customer certain products, features, services, software, regions or cloud providers that are not yet generally available, including such products, features, services, software, regions or cloud providers that are labeled as “private preview,” “public preview,” “early release” or “beta” (collectively, “Previews”). Customer may access and use Previews solely for its internal evaluation purposes and in accordance with the Preview Terms. In the event of any conflict between this Agreement and the Preview Terms, the Preview Terms shall govern and control solely with respect to the Previews.

2.   CUSTOMER DATA

2.1.   Rights in Customer Data. As between the parties, Customer or its licensors will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided to Datafi. Subject to the terms of this Agreement, Customer hereby grants to Datafi a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Customer Data solely to the extent necessary to provide the services to Customer, or to prevent or address service or technical problems under this Agreement, or as may be required by law.

 

2.2.   Connecting Customer Data. Customer will be responsible for connecting all Customer Data to the Service and will connect such Customer Data in a format consistent with the requirements set forth in the Documentation (or as otherwise specified by Datafi). Errors in connecting Customer Data to the Service due to faulty data schema, erroneous data or failure to meet such requirements may cause connections to Customer Data to be rejected by the Service and Datafi will have no responsibility for any related impact on Customer’s ability to access or use the Service.

 
2.3.   Customer Obligations.

(a) In General. Customer will ensure that Customer’s use of the Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Datafi that Customer has sufficient rights in the Customer Data to grant the rights granted to Datafi in Section 2.1 and that the Customer Data does not infringe or violate the intellectual property, publicity, privacy or other rights of any third party.

(b) User ID and Password Protection. Customer will require that all permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Datafi will not have any liability under this Agreement for actions taken using Customer’s user IDs and passwords, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. Customer will be responsible for restricting access by any User who is no longer authorized to access the Service.

 

2.4 Data Privacy. Each party shall comply with the Customer Data Processing Addendum located at Data Processing Addendum (“DPA”), which is incorporated herein by this reference. By each party’s acceptance and agreement to the terms and conditions of this Agreement, each party is deemed to have signed the DPA, including the Model Clauses as “Data exporter” in the case of Customer, and as “Data importer” in the case of Datafi.

 

3.  SECURITY. Datafi will use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data in accordance with the Datafi Security Policy found at Security Policy (“Security Policy”), as updated as set forth in Section 13.7 (Entire Agreement), and which is incorporated herein by this reference.

4.   INTELLECTUAL PROPERTY

4.1.  Datafi Technology. Customer agrees that Datafi or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service, all Documentation and Client Software, any Technical Services deliverables, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Datafi Technology”). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Datafi Technology is granted to Customer. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service, except (if applicable) for the Client Software in object code format. Notwithstanding anything to the contrary herein, Datafi may freely use and incorporate into Datafi’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any users of the Services relating to Datafi’s products or services (“Feedback”).

 

4.2.   Service Data. Notwithstanding anything to the contrary herein, Customer agrees that Datafi may collect Service Data, and Datafi may use Service Data to develop, improve, support, and operate its products and services during and after the term of this Agreement. This Section does not give Datafi the right to identify Customer as the source of any Service Data without written permission from Customer.

 

4.3.   Marketing. Datafi may use and display Customer’s name, logo, trademarks, and service marks on Datafi’s website and in Datafi’s marketing materials in connection with identifying Customer as a customer of Datafi. Upon Customer’s written request, Datafi will promptly remove any such marks from Datafi’s website, and, to the extent commercially feasible, Datafi’s marketing materials.

 

5.  CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the disclosing party (the “Disclosing Party”) for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

6.   USAGE AND FEES

6.1.   Generally. Each month, Customer will be charged for, and agrees to pay, the sum of (i) Customer’s monthly License Fees (ii) monthly Query Fees and (iii) other Fees incurred by Customer for services described in the Datafi Service Pricing Table.

6.2.   License. License Fees are calculated as set forth in the Datafi Service Pricing Table.

 

6.3.   Queries. Query Fees are calculated as set forth on the Datafi Service Pricing Table.

 

6.4.  Monthly Usage Limits. Customer acknowledges and agrees that Customer’s use of the Service may be limited or capped by Datafi in its sole discretion.

 

6.5.   Changes to Pricing or Conversion Rate. Any changes to pricing or conversion rate shall be as set forth in the Datafi Service Pricing Table.

 

6.6.   Free Usage. Datafi may offer Customer promotional credits or other free use of the Service. Any such credits or free use will be credited against Customer’s monthly Fees. Promotional credits or other free use of the Service have no cash value, are non-transferable and non-refundable, and expire thirty (30) days after they are issued.

 

6.7 Free Trial. If Customer signed up for the Service under a free trial, the free trial expires thirty (30) days from the Effective Date or once Customer’s promotional credits are exhausted, whichever comes first.

7.   BILLING; PAYMENT METHODS; TAXES

7.1.   Recurring Billing. By using the Service and providing or designating a Payment Method, Customer hereby authorizes Datafi (or its designee) to charge Customer’s Payment Method on the first day of each month for all applicable Fees during the previous month. Customer acknowledges that the amount billed each month may vary depending on Customer’s use of the Service, and authorizes Datafi to charge Customer’s Payment Method for such varying amounts. All payment obligations are non-cancelable, and Fees are non-refundable.

 

7.2.   Payment Methods. At any time, Customer may change its Payment Method information by emailing Datafi at support@dataficloud.com or may terminate the Subscription Term in accordance with Section 8.2 (Termination). If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, Customer remains responsible for any uncollected amounts and authorizes Datafi to continue billing the Payment Method, as it may be updated. Customer acknowledges that for certain Payment Methods, the issuer of Customer’s Payment Method may charge a foreign transaction fee or other charges.

 

7.3.   Taxes. The Service Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder other than taxes based on income, property, or employees of Datafi. If Datafi has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Datafi will invoice Customer and Customer will pay that amount unless Customer provides Datafi with a valid tax exemption certificate authorized by the appropriate taxing authority.

8.   TERM AND TERMINATION

8.1.   Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with this Agreement

 

8.2.   Termination. Either party may terminate this Agreement at any time with or without cause by providing notice via email to the other party and requesting termination. Customer may terminate by emailing Datafi at support@dataficloud.com. Datafi may terminate by emailing the email address provided by Customer. Termination will be effective the following business day after notice is received by the non-terminating party.

 

8.3.   Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease use of and access to the applicable Service (including any related Datafi Technology) and delete all copies of the Client Software and Documentation, the Service passwords or access codes, and any other Datafi Confidential Information in its possession. Following termination, customers will have no further access to any connected Customer Data. Promptly following the expiration or termination of this Agreement Datafi will delete Customer Account. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Further, upon termination, Datafi will charge Customer’s Payment Method for Customer’s use of the Service during the current month.

 

8.4.   Survival. The following Sections will survive any expiration or termination of this Agreement: 1.8 (General Restrictions), 4 (Intellectual Property), 5 (Confidential Information), 6 (Usage and Fees), 7 (Billing; Payment Methods; Taxes), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitation of Remedies and Damages), 13 (General Terms), and 14 (Definitions).

 

8.5.  Suspension of Service. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Datafi reserves the right to suspend provision of the Service: (a) if Customer is overdue on a payment; (b) if Datafi deems such suspension necessary as a result of Customer’s breach of Section 1.8 (General Restrictions) or Section 2.3 (Customer Obligations); (c) upon expiration of Customer’s free trial, unless Customer has provided or designated a Payment Method; (d) if Datafi reasonably determines suspension is necessary to avoid material harm to Datafi or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Datafi’s control; or (e) as required by law or at the request of governmental entities.

 

9.   WARRANTY

9.1.  Service Warranty. Datafi warrants that each Service will operate in substantial conformity with the applicable Documentation. In the event of a breach of this warranty, Datafi will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Customer, or if Datafi determines such remedy to be impracticable, either party may terminate. The foregoing shall be Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section. This warranty will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services

 

9.2.  Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, THE CLIENT SOFTWARE, SAMPLE DATA, AND ALL TECHNICAL SERVICES ARE PROVIDED “AS IS” AND DATAFI MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. DATAFI DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES DATAFI WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. DATAFI SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. DATAFI DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARMS OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

 

10.  SUPPORT AND AVAILABILITY. During the Subscription Term, Datafi will provide Customer support and service levels for the applicable Service selected at registration in accordance with the Datafi Support and Service Levels found at Support Policy with the Support and Service Levels Page.

 

10.1.  TECHNICAL SERVICES. If Customer procures Technical Services, the scope of Technical Services will be as set forth in a mutually agreed Statement of Work referencing this Agreement (“SOW”). Customer will pay Datafi at the rates set forth in the SOW (or, if not specified, at Datafi’s then-standard rates) for such Technical Services. Customer will reimburse Datafi for actual reasonable travel and lodging expenses approved in advance by Customer. Customer may use anything delivered as part of the Technical Services in support of authorized use of the applicable Service and subject to the terms regarding Customer’s rights to use the Service set forth in Section 1 (The Service) and the applicable SOW, but Datafi will retain all right, title and interest in and to any such work product, code (including SQL queries) and deliverables and any derivative, enhancement or modification thereof created by or on behalf of Datafi.

11.  INDEMNIFICATION

11.1.  Indemnification by Datafi. Datafi will defend Customer from and against any claim by a third party alleging that the Service, when used as authorized under this Agreement, infringes a U.S. patent, copyright, or trademark and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Datafi (including reasonable attorneys’ fees) resulting from such claim, Customer’s use of the Service is (or in Datafi’s opinion is likely to be) enjoined, if required by settlement or if Datafi determines such actions are reasonably necessary to avoid material liability, Datafi may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement. The foregoing indemnification obligation of Datafi will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service by any party other than Datafi; (2) the combination of the Service with products or processes not specified in the Documentation or provided by Datafi; (3) any unauthorized use of the Service; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service. THIS SECTION SETS FORTH DATAFI’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

 

11.2.  Indemnification by Customer. Customer will defend Datafi from and against any claim by a third party arising from or relating to any Customer Data or any product or service offered by Customer in connection with or related to the Datafi Service, and will indemnify and hold harmless Datafi from and against any damages and costs awarded against Datafi or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.

 

11.3.  Indemnification Procedures. In the event of a potential indemnity obligation under this Section 11, the indemnified party shall: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 11 shall not relieve the indemnifying party of its obligations under this Section 11, however the indemnifying party shall not liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by such delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim in any matter that would require obligation on the part of the indemnified party (other than payment or ceasing to use infringing materials), or any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Further, any indemnification obligation under this Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.

 

12.   LIMITATION OF REMEDIES AND DAMAGES

12.1.  Consequential Damages Waiver. EXCEPT FOR CUSTOMER’S BREACH OF SECTIONS 1.8 (GENERAL RESTRICTIONS), 2.3 (CUSTOMER OBLIGATIONS), OR 5 (CONFIDENTIAL INFORMATION), AND ITS OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

 

12.2.  Liability Cap. EXCEPT FOR CUSTOMER’S BREACH OF SECTIONS 1.8 (GENERAL RESTRICTIONS), 2.3 (CUSTOMER OBLIGATIONS), OR 5 (CONFIDENTIAL INFORMATION), AND ITS OBLIGATIONS UNDER SECTION 11 (INDEMNIFICATION), AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EACH PARTY AND ITS AFFILIATES’ ENTIRE LIABILITY TO THE OTHER PARTY (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID (OR WITH RESPECT TO CLAIMS FOR FEES DUE, PAYABLE) BY CUSTOMER TO DATAFI ATTRIBUTABLE TO THE PRIOR 12 MONTHS UNDER THIS AGREEMENT.

 

12.3.  Failure of Essential Purpose. The parties agree that the limitations specified in this Section 12 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

13.  GENERAL TERMS

13.1.  Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.

 

13.2.  Severability. If any provision of this Agreement will be held by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

 

13.3.  Dispute Resolution; Governing Law; Jurisdiction and Venue. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 11 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information. This Agreement will be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof will be the state and United States federal courts located in New Castle County, Delaware and both parties hereby submit to the personal jurisdiction of such courts.

 

13.4.  Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

 

13.5.  Notice. Any notice or communication required or permitted under this Agreement will be in writing (a) for notices to Datafi to the applicable address specified at Notice, and (b) for notices to Customer, to the address electronically submitted by Customer during registration for the Service, or in each case at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email. Email notifications to Datafi shall be to legal@datafilabs.com.

 

13.6.  Amendments; Waivers. Except as otherwise expressly provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect. Additionally, the parties and/or their Affiliates may enter into a non-disclosure, confidentiality, or similar agreement (an “NDA”) on or around the Effective Date of this Agreement. Notwithstanding anything to the contrary in the NDA or the fact that the NDA may be executed subsequent to this Agreement, the NDA shall not supersede or amend this Agreement or apply to Customer’s use of the Service or to any Customer Data.

 

13.7.  Entire Agreement. 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 and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is provided as an online subscription, and that Datafi may change and update the Service (in which case Datafi may update the Documentation accordingly). The terms described in the Support Policy, the Acceptable Use Policy, and the Security Policy, respectively, may be updated from time to time upon reasonable notice to Customer (which may be provided through the Service).

 

13.8.   Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

 

13.9.  Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

 

13.10.  Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

 

13.11.  Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.

 

13.12.   Federal Government End Use Provisions. Datafi provides the Service, including all related software and the Datafi Technology, for federal government end use solely in accordance with the following:

 

Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial 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 granted under these terms, it must negotiate with Datafi to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

 

14. DEFINITIONS

Acceptable Use Policy” means Datafi’s acceptable use policy, made available at Acceptable Use Policy (as such link may be updated), and which is incorporated herein by this reference.

 

Account” means Customer’s account in the Service in which Customer stores and processes Customer Data.

 

Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.

 

Client Software” is any desktop client software included in the Service that is made available to Customer by Datafi for installation on end user computers.

 

Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Datafi Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Datafi without any marking or further designation. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. Confidential Information shall not include information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

 

Contractor” is defined in Section 1.3 (Access to Services).

 

Customer Data” means any data or data files of any type that are connected to or uploaded by or on behalf of Customer to the Service.

 

Disclosing Party” is defined in Section 5 (Confidential Information).

 

Documentation” means Datafi’s technical documentation and usage guides for the Service, as updated by Datafi from time to time, made available at Documentation or through the Service.

 

Feedback” is defined in Section 4.1 (Datafi Technology).

 

Fees” means the fees payable by Customer for the Service or Technical Services, or other services identified in the Datafi Service Pricing Table.

 

Preview Terms” means the Preview Terms located at Preview Terms

 

Receiving Party” is defined in Section 5 (Confidential Information).

 

Payment Method” means a current, valid method of payment accepted by Datafi, including, but not limited to a credit card.

 

Service” is defined in Section 1.1 (Service Description).

 

Service Data” means query logs and other information about Customer’s use of the Service. Service Data does not include Customer Data.

 

Datafi Service Pricing Table” means the Datafi Service Pricing Table located at Service Pricing and which is incorporated herein by this reference.

 

SOW” is defined in Section 10.1 (Technical Services). 

Subscription Term” is defined in Section 1.2 (Subscription Term).

Support and Service Policy” means the Support Policy located at Support Policy describing Datafi’s current support policies and service level offerings as applicable to the Service procured by Customer, and which, if applicable, is incorporated herein by this reference.

 

Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction.

 

Technical Services” means technical assistance related to the Service provided by Datafi to Customer, as set forth in an SOW.

 

User” is defined in Section 1.3 (Access to Services).

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