Cloud Services Agreement
Version Date: March 12, 2024
This Cloud Services Agreement (“Agreement”) is made by and between Databook Labs, Inc., with offices at 228 Hamilton Ave. 3rd. Floor, Palo Alto, CA 94301 (“Databook”), and (“Customer”), and is effective as of the date this Agreement is first accepted by Customer (“Effective Date”). Customer shall be deemed to have accepted this Agreement by executing an Order Document referencing this Agreement. The parties agree as follows:
“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 fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
“AI” means artificial intelligence.
“AI Models” means AI models used by Databook to process Customer Data.
“Authorized Users” means Customer and, to the extent acting on Customer’s behalf, those employees of Customer that are provisioned to access the Services in connection with an Order Document entered into by Customer pursuant to this Agreement.
“Customer Data” means the data and other information and content supplied by or on behalf of Customer for processing by, or use with, the Services.
“Export Controls” means the laws, regulations, directives, and rulings issued by the U.S. Department of Commerce pursuant to the Export Control Reform Act of 2018 and the Export Administration Regulations, by other U.S. government agencies, and by the governmental authorities of other applicable jurisdictions, governing the exportation, re-exportation, transfer, and deemed export of goods, software, and technology, as applicable to the Customer’s operations.
“Order Document” means each order form or other statement of work referencing this Agreement, which is executed by Databook and Customer, under which Customer subscribes to the Services. Each Order Document will be incorporated into this Agreement upon mutual execution by the parties. In the event of any conflict or inconsistency between this Agreement and an Order Document, except as otherwise expressly set forth in the Order Document, this Agreement will control.
“Output” means the results or other output of the Services generated for or on behalf of Customer hereunder.
“Sanctioned Country” means any country or region that is the subject or target of a comprehensive embargo under Sanctions Laws (presently including Cuba, Iran, North Korea, Syria and the Crimea region, the Donetsk People’s Republic (“DNR”) and Luhansk People’s Republic (“LNR”) of Ukraine, and within the past five years including Sudan).
“Sanctions Laws” means all U.S. and applicable non-U.S. Laws relating to economic or trade sanctions, including the Laws administered or enforced by the United States (including by the U.S. Department of the Treasury, Office of Foreign Assets Control (“OFAC”) or the U.S. Department of State), and the United Nations Security Council.
“Sanctioned Person” means any individual or entity that is the subject or target of sanctions or restrictions under Sanctions Laws, including: (a) any Person listed on any U.S. or applicable non-U.S. sanctions- or export-related restricted or prohibited party list, including but not limited to OFAC’s Specially Designated Nationals and Blocked Persons List, OFAC’s Sectoral Sanctions Identification List, the Entity, Denied Persons and Unverified Lists maintained by the U.S. Department of Commerce, and the UN Security Council Consolidated List; (b) any Person that is, in the aggregate, 50% or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a); or (c) any national of a Sanctioned Country.
“Services” means Databook’s hosted services, content and mobile software as described on the applicable Order Document.
2.1. Provision of Services.
(a) Use of Services by Customer Affiliates. Each Customer Affiliate identified on an Order Document or SOW (defined below) will be entitled to access and use the applicable Services in accordance with this Agreement and the applicable Order Document or SOW; provided that Customer will remain responsible to Databook for the actions or omissions of each such Customer Affiliate (and each of their Authorized Users). The terms of this Agreement will govern, and will be incorporated by reference in, each such Order Document or SOW as if this Agreement were separately executed by the applicable Customer Affiliate, and the term “Customer” as used in this Agreement will be deemed as applying to such Customer Affiliate for the purposes of such Order Document or SOW.
(b) Access to Services. During the applicable Subscription Term (defined below), and subject to the terms and conditions of this Agreement and the applicable Order Document, Databook grants to Customer a non-exclusive, non-transferable, non-assignable license to use the Services for Customer’s internal business purposes.
(c) Output. During the applicable Subscription Term, and subject to the terms and conditions of this Agreement and the applicable Order Document, Databook will make available Output to Customer via the Services, and Customer will own such Output (excluding Databook’s templates and pre-existing intellectual property and third-party intellectual property). Databook may provide via the Services certain features and functionality that permit the download and/or other export of certain Output. Customer may utilize such features and functionality to download and/or export such Output in the format provided by Databook. Customer will not convey raw Output to third parties who are not Authorized Users for the sole purpose of using the Customer raw Output in lieu of the third party contracting with Databook for their own service access.
(d) Authorized Users. Authorized Users (and only Authorized Users) may access and use the Services on behalf of Customer as permitted hereunder, provided that Customer will remain responsible to Databook for any and all acts or omissions of each Authorized User. An Order Document may provide that Customer is allotted a certain number of Authorized Users for some features of the Services and a separate number of Authorized Users for other features of the Services. An Authorized User may only access and use those features of the Services to which the Authorized User is provisioned by Customer, subject to the limitations set forth in the Order Document.
2.2. Customer Data.
(a) By submitting Customer Data into the Services, Customer hereby grants, and represents and warrants that it has all rights necessary to grant, all rights, consents and licenses to the Customer Data required for Databook and its subcontractors to access and use the Customer Data in connection with the Services and as described herein. Databook will ensure that subcontractors performing Services are bound to terms no less protective of Customer as the terms hereof, and Databook will remain responsible to Customer for any breach of this Agreement by such subcontractor. Databook may create, collect, analyze, and use Customer Materials for the purposes of (a) operating, analyzing and improving the Services for Customer; (b) developing and training AI Models; and (c) creating and using de-identified data for publication in benchmarking and other reports and to improve Databook’s products and services, system performance, architecture, and functionality (and such derived data will be Databook’s property). “Customer Materials” shall refer to both Customer Data and Output.
(b) Customer shall not submit any Customer Data as part of the Services that: (a) infringes any third-party intellectual property or proprietary rights; (b) includes sensitive personal information, including without limitation Customer Data containing or revealing government-issued identification numbers; financial information (such as credit or debit card numbers, any related security codes or passwords, and bank account numbers); racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, information concerning health or sex life; information related to an individual’s physical or mental health; and information related to the provision or payment of health care; (c) violates any applicable law or regulation, including but not limited to data privacy laws and export control laws; (d) is obscene, defamatory, or otherwise objectionable; or (e) contains any malicious code, viruses, or harmful components that may disrupt or damage the Services or Databook’s systems. Databook reserves the right, in its sole discretion, to remove or block any such prohibited Customer Data from the Services without liability to Customer.
2.3. Third-Party Data.
(a) General. Databook may make available on or in connection with the Services certain data, content and information provided by third parties (“Third-Party Data” and each applicable data providers, a “Data Provider”). All or some portions of Third-Party Data may be subject to separate third-party license agreements or terms, including open source license agreements. Notwithstanding anything to the contrary in this Agreement, such third-party license agreements govern Customer’s use of such Third-Party Data and control and supersede the terms of this Agreement to the extent of any conflict herewith, and Customer is solely responsible for its (and, for clarity, its Authorized Users’) compliance with all third party license agreement(s) or terms applicable to Third-Party Data, provided that such third party license agreements or terms have been provided to Customer in writing, and which may be updated from time to time with advance written notice to Customer. To the extent expressly authorized by a supplier of Third-Party Data, Databook agrees to pass on to Customer the warranties provided to Databook by such supplier with respect to such Third-Party Data.
(b) Headline Data. The Services may include headlines and associated content from news articles, blogs, and similar third-party sources (such articles, blogs, and other third-party sources, “Sources” and the underlying data, the “Headline Data”). Databook represents and warrants that it has sufficient rights, licenses, authority and/or permission necessary to provide the Headline Data to Customer through the Services. With respect to the Headline Data, Customer agrees not to (i) create, modify, distribute, transmit, display, or perform derivative works based on the Headline Data; (ii) copy, frame or mirror any part or content of the Headline Data; (iii) delete or alter Headline or its Sources’ copyright, trademark or other proprietary notices, branding or attribution (iv) access the Headline Data for the purposes of monitoring its availability, performance or functionality, or for any benchmarking against third-party services or competitive purposes; or (v) enable others to violate the foregoing terms. To the extent the Services provide links to websites hosted directly by any of the Sources, any of the content found on such websites are subject to each such Source’s terms of use, privacy policy, and or other licensing terms.
(c) Third-Party Data Restrictions. That portion of the Services provided by, through, or with data from Data Providers shall be referred to as the “Third-Party Data Services.” Customer agrees that: (i) neither Databook, any Data Provider, their affiliates, nor any of their third-party suppliers shall have any liability for the accuracy or completeness of the information or software furnished through the Services, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages; (ii) the Third-Party Data Services are not investment advice and a reference to a particular investment or security, a credit rating or any observation concerning a security or investment provided in the Third-Party Data Services is not a recommendation to buy, sell or hold such investment or security or make any other investment decisions; (iii) the Data Providers and their affiliates or their third-party suppliers have exclusive proprietary rights in the applicable Third-Party Data Services and any information and software received in connection therewith; (iv) Customer shall not use or permit anyone to use the Third-Party Data Services for any unlawful or unauthorized purpose; (v) the Third-Party Data Services are being provided for Customer’s internal use only and Customer is not authorized or permitted to distribute or otherwise furnish such information or software to any third-party without prior written approval of the applicable Data Provider; (vi) access to the Third-Party Data Services is subject to termination in the event that any agreement between Databook and the applicable Data Provider terminates for any reason; (vii) the applicable Data Providers may enforce their rights against Customer as the third-party beneficiary of this Agreement, even though is the Data Providers are not a party to the Agreement; and (viii) the use of the Third-Party Data Services shall be for Customer’s internal use for business purposes, and only via the password/user ID created when registering with Databook.
(d) Additional Third-Party Data Provider Specific Terms. The parties shall comply to the terms described in the addendum attached hereto as Exhibit A with respect to the Additional Third-Party Data Service (as defined and described in the addendum).
2.4. General Restrictions. Customer will not, and will not permit any third-party (including any Authorized User) to: (a) use the Services except as expressly permitted in this Agreement; (b) decompile, disassemble, or reverse engineer the underlying software to the Services (unless this restriction is not permitted under applicable law); (c) sell, rent, lease or use the Services for time sharing purposes; (d) remove, modify, or obscure any copyright or proprietary notices contained in the Services or Output exported from the Services in the form a screenshot; (e) access or use the Services to circumvent or exceed account limitations or requirements; (f) obtain unauthorized access to the Services (including permitting access to or use of the Services via another system or tool, the primary effect of which is to enable input of requests or transactions by other than Authorized Users); (g) use the Services or Output in a manner that is contrary to applicable law; (h) knowingly publish, post, upload or otherwise transmit any data via the Services that (1) is unlawful or, in Databook’s reasonable discretion, is otherwise objectionable or (2) contains 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; (i) use or permit the use of any tools in order to probe, scan or attempt to penetrate the Services; or (k) use the Services the purposes of analyzing, profiling or targeting someone’s racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, age, gender, sex life, sexual orientation, criminal convictions, disability, health status or medical condition.
2.5. Service Specific Terms.
(a) Master Class Services. The following additional terms apply to Customer’s subscription to and use of Databook’s Master Class Services (“Master Class Services” and the subscription thereto the “Master Class Subscription”). The details of Customer’s access to the Master Class Services shall be set forth in the Order Document. If Customer subscribes to the Master Class Services, Customer will be provided access to certain streaming video content (the “Licensed Content”) on a non-downloadable basis. Databook hereby grants Customer a term-limited license to view the Licensed Content included in Customer’s Master Class Subscription (if any) through Databook’s website or Databook’s mobile applications (collectively, the “Permitted Streaming Platforms”), on a non-downloadable basis, for Customer’s internal business purposes, subject to any authorized user or other limitations set forth in the Order Document. In addition to any restrictions set forth in other provisions of this Agreement (including, without limitation, Section 2.4), which such restrictions shall apply to Customer’s access to the Master Class Services, Customer will not, and will not permit any third-party (including any Authorized User) to: (i) remove, modify, or obscure any copyright or proprietary notices contained in the Master Class Services or Licensed Content; (ii) attempt to download, export, take a screenshot, or otherwise attempt to retain or provide access to the Licensed Content outside of the Permitted Streaming Platforms; or (iii) or use the Master Class Services or Licensed Content for any purposes competitive with Databook.
2.6. Feedback. Customer may choose to or Databook may invite Customer to submit general comments or ideas about the Services’ performance, including about how to improve the Services or Databook’s products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction. Customer further acknowledges and agrees that any such Feedback shall be considered non-confidential and non-proprietary. Databook is free to use, disclose, reproduce, license or otherwise distribute, and exploit this Feedback as it sees fit, without obligation, compensation, or restriction of any kind, except as prohibited by law. Customer further acknowledges that, by acceptance of Customer’s submission, Databook does not waive any rights to use similar or related ideas previously known to Databook, or developed by its employees, or obtained from sources other than Customer.
2.7. Setup Services. Provider will perform implementation or customization services for the Services as specified in an SOW (“Setup Services”). “SOW” means either (a) a description of such services in an Order Document or (b) a mutually executed statement of work that references this Agreement. Setup Services and any associated deliverables are deemed included in the “Services” for purposes of this Agreement.
2.8. Technical Support. Databook will provide Customer such technical support services as set forth in the applicable Order Document.
2.9. Data Processing Addendum. The parties will comply with the Data Processing Addendum posted
at https://databook.com/dpa/ (“DPA”).
3.1. Effective Date and Term. This Agreement will commence on the Effective Date and will continue in effect until terminated pursuant to this Section 3 (the “Term”). Any Order Document or SOW will commence on the effective date stated therein and, unless earlier terminated in accordance with this Section 3, will continue for the period stated therein, and thereafter will automatically renew for successive annual periods unless a party gives written notice of its intention not to renew at least sixty (60) days prior to the end of the then-current initial term or renewal term thereof (“Subscription Term”). This Agreement will survive for so long as any Order Document or SOW remains in effect; provided that no new Order Documents or SOWs may be executed after the termination or expiration of this Agreement. Either party may terminate this Agreement at any time for convenience when there are no Order Documents or SOWs then in effect.
3.2. Termination for Cause. Either party will have the right to terminate this Agreement or any SOW or Order Document immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement or an SOW or Order Document and such default has not been cured within thirty (30) days after written notice of such default to the other party, or in the event of a material breach by the other party that cannot be cured, Databook may terminate this Agreement immediately upon written notice; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
3.3. Effect of Termination. Sections 1, 2.1(c), 2.1(d), 2.2 (with respect to derived data and Databook’s reservation of rights), 2.3, 2.4, 2.5, 2.6, 2.8, 2.9, 3.3, 4, 5, 6, 7, 8 (solely with respect to claims arising during the applicable Subscription Term), 9, 10, 11, 12 and 13 will survive termination of this Agreement and, in relation to its subject matter, any SOW or Order Document. Upon any termination of this Agreement or SOW or Order Document by Databook for cause, all unpaid and undisputed Fees (defined below) under the terminated instrument incurred up to the point of termination will become immediately due and payable. If Customer terminates this Agreement or any SOW or Order Document for cause, then Databook will provide Customer a refund of any prepaid unused Fees corresponding to the terminated period. Nothing contained herein will limit any other remedies that either party may have for the default of the other party under this Agreement or any SOW or Order Document nor relieve either party of any of its obligations incurred prior to such termination.
4.1. Fees. In consideration of the Services provided by Databook under this Agreement, Customer will pay Databook the fees in the amounts set forth on the applicable Order Document or SOW (the “Fees”) in accordance with the terms set forth herein and therein. Except as otherwise specified below or in the applicable Order Document or SOW, the Fees for Services are due in advance on an annual basis and will be invoiced on or around the Effective Date and each anniversary thereafter during the applicable Subscription Term. Each Authorized User beyond the number of users specified in the applicable Order Document will incur an additional charge at the per-user Subscription Term price specified in the Order Document which shall be paid in advance for the Subscription Term and thereafter for each renewal term.
4.2. Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Databook’s net income. If Databook has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Databook with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.3. Payment Terms. All amounts payable to Databook under this Agreement will be due within thirty (30) days from the date of Customer’s receipt of the applicable invoice. Overdue payments that are not subject to a good faith dispute will be subject to interest at the rate of 1.5% per month, or the highest interest rate permitted by applicable law, whichever is less.
5.1. Authority. Each party represents and warrants that it has full corporate power and authority to execute and deliver this Agreement (and each Order Document and SOW) and to consummate the transactions contemplated herein and therein, and that this Agreement (and each Order Document and SOW) is and will be executed by an authorized representative of such party.
5.2. Databook Non-Infringement. Databook warrants that the provision and use of the Services by Customer in accordance with this Agreement will not infringe upon or violate any intellectual property rights of any third party. However, Databook makes no representations or warranties with respect to any portion of the Services that rely on AI Models or any portion of the Services or Output derived from data submitted by any Databook customer, to the extent such data infringes any third-party intellectual property or proprietary right. Databook’s sole liability and Customer’s sole remedy for any breach of this non-infringement warranty shall be as set forth in Section 8 of this Agreement.
5.3. Performance Warranty. Databook represents and warrants that it will provide the Services in material accordance with this Agreement and the descriptions and milestones in the applicable Order Document or SOW (the “Performance Warranty”). As the sole remedy for breach of the Performance Warranty, if Customer reports in writing a material breach of the Performance Warranty, Databook will rectify such defect within a reasonable timeframe, not exceeding thirty (30) days from the date of receipt of written notification from the Customer, at no additional cost to the Customer.
5.4. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW OR ORDER DOCUMENT: (A) EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) THE PARTIES AGREE THAT THE SERVICES (INCLUDING THIRD-PARTY DATA) ARE PROVIDED “AS IS” AND “AS AVAILABLE.” DATABOOK MAKES NO OTHER WARRANTY AS TO THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THERE ARE CERTAIN RISKS INHERENT TO THE PARTIES’ ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND DATABOOK’S PROVISION OF, THE SERVICES MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE SERVICES AND OUTPUT IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE OR RECOMMENDATIONS. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO ANY PORTION OF THE SERVICES UTILIZING AI MODELS, DATABOOK DOES NOT GUARANTEE ACCURACY OF AND DATABOOK HEREBY DISCLAIMS ANY WARRANTY RELATING TO ANY OUTPUT GENERATED BY THE AI MODELS. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, AND AI, USE OF SERVICES OR FEATURES THAT MAKE USE OF THIRD-PARTY NATURAL LANGUAGE MODELS MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT THE ACTION GENERATED. CUSTOMER USES ANY OUTPUT FROM THE AI MODELS AT ITS OWN RISK.
“Confidential Information” of a party means all oral, written, graphic or machine-readable information exchanged between the parties hereunder and under any non-disclosure agreement previously executed by the parties, which is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. Notwithstanding anything herein to the contrary the terms and conditions of this Agreement and the technology underlying the Services are Databook’s Confidential Information; Confidential Information excludes information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, that was rightfully obtained by recipient from a third party, or as otherwise expressly agreed by the parties in writing. The recipient agrees not to disclose Confidential Information except to affiliates, employees and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information. Each party will return or destroy all Confidential Information upon request and certify to the other party in writing such return or destruction.
7.1. General Liability Limitation; Consequential Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW): (A) EACH OF DATABOOK’S AND CUSTOMERS’ TOTAL AGGREGATE LIABILITY TO THE OTHER ARISING UNDER THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES BY CONTRACT, TORT, STATUTE, OR OTHERWISE), INCLUDING ALL CLAIMS, WILL NOT EXCEED THE AMOUNTS PAID TO DATABOOK UNDER THE APPLICABLE ORDER DOCUMENT OR SOW DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; AND (B) NEITHER DATABOOK NOR CUSTOMER WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, LOSSES OR, EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2. Excluded Claims. “EXCLUDED CLAIMS” MEANS CLAIMS ARISING FROM: (A) CUSTOMER’S BREACH OF SECTION 2.2, 2.3, 2.4, 2.5, 4, OR EXHIBIT A HEREOF; (B) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 (CONFIDENTIAL INFORMATION) HEREOF; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION) HEREOF; (D) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY OR ITS AGENTS; OR (E) ANY OTHER LIABILITY TO THE EXTENT THE SAME MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW; PROVIDED THAT WITH RESPECT TO THIRD-PARTY DATA, DATABOOK’S AGGREGATE LIABILITY, INCLUDING ALL CLAIMS, WILL IN NO EVENT EXCEED THE AMOUNTS ACTUALLY RECOVERED BY DATABOOK RELATING TO THE CLAIM FROM THE APPLICABLE THIRD-PARTY DATA SUPPLIER. NOTWITHSTANDING ANYTHING TO THE CONTRARY, DATABOOK’S TOTAL AGGREGATE LIABILITY, INCLUDING ALL CLAIMS, WITH RESPECT TO ITS INDEMNIFICATION, DATA PROTECTION AND SECURITY, AND CONFIDENTIALITY OBLIGATIONS SHALL NOT EXCEED THE GREATER OF THREE (3) TIMES THE FEES PAID TO DATABOOK UNDER THE APPLICABLE ORDER DOCUMENT OR SOW IN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS OR TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000). EACH PARTY ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.1. Databook Infringement Indemnification.
(i) Databook will defend, indemnify, and hold harmless Customer and its affiliates and its and their respective officers, directors. employees, and agents and their respective successors and assigns from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees), whether based on contract, tort, equity or otherwise, to the extent arising out of or in connection with a claim, suit or proceeding brought by a third party based upon Databook’s actual or alleged violation of Section 5.2, hereof. The foregoing indemnification obligations shall not apply to actual or alleged violations of Section 5.2 to the extent the infringement or violation of other proprietary right arises from: (A) Customer Data; (B) use of the Services in combination with any software, hardware, network; or system not supplied by Databook where the alleged infringement relates to such combination; (C) any modification or alteration of the Services other than by Databook; (D) Customer’s continued use of the Services after Databook notifies Customer to discontinue use; or (E) Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.
(ii) If any claim which Databook is obligated to defend has occurred, or in Databook’s determination is likely to occur, Databook may, in its sole discretion and at its option and expense (A) obtain for Customer the right to use the Services, (B) substitute a functionality equivalent, non-infringing replacement for such the Services, (C) modify the Services to make it non-infringing and functionally equivalent, or (D) terminate this Agreement and refund to Customer any prepaid amounts for Services not provided.
8.2. Customer Indemnification. Customer will defend, indemnify, and hold harmless Databook and its affiliates and its and their respective officers, directors. employees, and agents and their respective successors and assigns from and against any and all claims, losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees), whether based on contract, tort, equity or otherwise, to the extent arising out of or in connection with a claim, suit or proceeding brought by a third party based upon Databook’s actual or alleged violation of Section 2.2 through 2.5 and Exhibit A hereof.
8.3. Procedure. The indemnified party will provide the indemnifying party with: (a) prompt written notice of any claim for which indemnification is sought (provided that a failure to provide such notice will not relieve a party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the indemnifying party may not agree to any settlement that imposes any material obligation on the indemnified party or requires the indemnified party to admit any liability, without the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) reasonable cooperation, at the indemnifying party’s request and expense, in the defense and settlement of the claim.
9.1. Each party shall comply with all applicable laws and regulations, including applicable export and re-export control and trade and economic sanctions laws, which include the Export Administration Regulations (EAR) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department (collectively “Export Controls and Sanctions Laws”). Neither party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of Sanctioned Persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any Sanctioned Country or territory for which the United States has embargoed goods or imposed trade sanctions.
9.2. Customer affirms that no Sanctioned Country or Sanctioned Person will be involved in the receipt, use or distribution of Databook’s Products or Services, nor involved in any activities for which Databook Products or Services will be used. Customer further affirms that will not use Databook’s Products or Services in connection with any activity or end use restricted under U.S. Export Control and Sanction Laws. Customer shall indemnify, defend, and hold Databook harmless for any breach in of applicable Export Controls and Sanctions Laws or its obligations pursuant to this Section.
Prior to the initiation of any arbitration or litigation under this Agreement, the parties agree to negotiate in good faith for a period of at least thirty (30) days to resolve any dispute, claim, or controversy arising out of or relating to this Agreement. The negotiation period commences upon receipt of a written notice from one party to the other, outlining the nature of the dispute, claim, or controversy. Notwithstanding the foregoing, either party may seek emergency injunctive relief in any court of competent jurisdiction without first engaging in the aforementioned negotiation process. If such negotiation process is unsuccessful in resolving a dispute, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by mandatory arbitration in Santa Clara County, California before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the award may be entered in any court having competent jurisdiction. This Section shall not preclude either party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
Except as set forth in this paragraph, neither party may use the other party’s name, logo or marks without such other party’s written pre-approval. Notwithstanding the foregoing, Databook may refer to Customer (by name, logo, or mark) on its customer lists, website, and other marketing materials as a customer of Databook, without written pre-approval.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other party at its address set forth in this Section 12 (or to such other address that the receiving party may designate from time to time in accordance with this Section). Notices sent to Databook shall be sent both to: (i) legal@databook.com; and (ii) Databook’s mailing address set forth in the Order Document. Notices sent to Customer shall be sent to either: (i) the address for Customer set forth in the Order Document (to the attention of the person listed as the Notification Contact); or (ii) the email address set forth as the Notification Contact in the Order Document. Notices delivered to a mailing address shall be sent by personal delivery, nationally recognized overnight courier (with all fees pre-paid or certified or registered mail (in each case, return receipt requested, postage prepaid). Notifications sent by email shall have a confirmation of transmission. Except as otherwise provided in this Agreement, a Notice is effective only if the party giving the Notice has complied with the requirements of this Section. Notices sent by personal delivery or nationally recognized overnight courier will be deemed given when received; by email, when confirmation of transmission is received; and by certified or registered mail, on the third business day after mailing. Notices must be sent to the respective addresses described in this Section 12, or such other address as may be designated by a party by giving Notice to the other party in accordance with this Section.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever. Neither party may assign this Agreement without the other party’s prior written consent, except that either party without such consent may assign this Agreement to an affiliate or any other entity in connection with a reorganization, merger, consolidation, acquisition, or other restructuring involving all or substantially all of such party’s voting securities or assets. In such cases, the assigning party must notify the other party in writing within 30 days of the assignment. Non-permitted assignments are void. This Agreement is governed by the laws of the State of California without reference to its principles of conflicts of laws and without regard to the United Nations Convention on the Sale of Goods. Any notice or consent under this Agreement will be in writing to the addresses specified above. If any provision is found to be unenforceable, it (and related provisions) will be interpreted to best accomplish the parties’ intended purpose. In this Agreement, “including” means “including without limitation” (and similar terms will be construed without limitation) and headings are for convenience only and will not affect interpretation. Databook reserves the right to amend or modify the terms of this Agreement at any time. Any such amendments or modifications will not become effective until the commencement of the next renewal term. Databook will provide notice to the Customer of any such amendments or modifications. If such notice is delivered after the deadline for the Customer to opt out of automatic renewal, the Customer shall have a period of ten (10) days from the date of receipt of the notice to object to the amendments or modifications. In the event of an objection by the Customer, Databook may, at its discretion, either terminate this Agreement and all Order Documents immediately or elect to have the Customer remain bound by the Agreement without the new amendments or modifications. Notwithstanding the foregoing, any amendments or modifications made pursuant to Section 2.3 of this Agreement shall become effective immediately upon notice to the Customer. Waivers must be signed by the waiving party and one waiver will not imply any future waiver. Neither party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than payment of fees due hereunder) if such delay or failure arises by any reason beyond its reasonable control, including any act of God or the common enemy or earthquakes, floods, fires, epidemics, riots, or failures or delays in transportation or communications. This Agreement (including all Order Documents and SOWs) is the parties’ entire agreement regarding its subject matter and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter. Notwithstanding any language to the contrary therein, any purchase order issued by Customer shall be deemed a convenient order and payment device only and no terms stated in any such purchase order or in any other such order document shall be incorporated into this Agreement, and all such terms shall be void and of no effect. This Agreement may be signed in counterparts, each of which will be deemed an original and which will together constitute one Agreement. Electronic signatures are valid and binding. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired. The parties shall negotiate in good faith to replace the invalid, illegal, or unenforceable provision with a valid, legal, and enforceable provision that reflects the original intent of the parties to the maximum extent permitted by law.
This Agreement is signed by the duly authorized representatives of the parties and is effective as of the Effective Date.
I. ADDENDUM TO THE CLOUD SERVICES AGREEMENT – Additional Third-Party Data Provider Specific Terms
A. Capitalized terms undefined herein shall have the meaning set forth in the Agreement.
B. This Addendum amends the Agreement with respect to Databook’s provision of and Customer’s use of the Additional Third-Party Data Service. For clarity, the terms hereof apply only to Databook’s provision of and Customer’s use of the Additional Third-Party Data Service. The Agreement otherwise continues to govern Databook’s provision of and Customer’s use of the Services.
C. The “Additional Third-Party Data Service” means that portion of the Third-Party Data Services pertaining to the provision of the following categories of data: sector, industry group, industry, sub-industry names and codes. For clarity, “Additional Third-Party Data Service” shall also refer to the data provided through the Additional Third-Party Data Service. The providers of the Additional Third-Party Data Service shall be referred to as the “ATPD Providers.”
D. Customer acknowledges that the ATPD Providers and/or their affiliates, and/or their third-party providers are the sole and exclusive owners of the Additional Third-Party Data Service (including all trade secrets, copyrights, trademarks and other intellectual property rights in or to the Service).
E. Customer represents and warrants that:
i. It will not redistribute the Additional Third-Party Data Service in any form or manner to any third party. Notwithstanding the foregoing, any affiliate of Customer may access the Additional Third-Party Data Service if such affiliate signs onto the terms of the Agreement, including this Addendum.
ii. The Additional Third-Party Data Service shall only be used by Authorized Users that are employees of Customer and solely for internal business purposes or personal, non-commercial use.
iii. Customer will not use or permit anyone else to use the Additional Third-Party Data Service to create any securities products or indices based on the Additional Third-Party Data Service or any portion thereof.
iv. Customer will treat the Additional Third-Party Data Service as proprietary to the ATPD Providers and/or their affiliates, and/or their third-party providers.
v. Customer will not, except as expressly set forth in this Addendum: (i) alter, modify or adapt any component of the Additional Third-Party Data Service, including, but not limited to, translating, decompiling, disassembling, reverse engineering or creating derivative works; or (ii) use the Additional Third-Party Data Service to verify the accuracy of other data or to correct such other data; or (iii) resell or otherwise transfer or make the Additional Third-Party Data Service, or any part or component thereof, available to any other person or organization (including, without limitation, the Customer’s present and future parents, subsidiaries or affiliates) directly or indirectly, for any of the foregoing or for any other use, including, without limitation, by loan, rental, service bureau, external time sharing or similar arrangement.
F. Customer acknowledges that (i) the ATPD Providers may, in its sole and absolute discretion and at any time, terminate the Customer’s right to receive and/or use the Additional Third-Party Data Service; and (ii) provision of the Additional Third-Party Data Service is subject to termination in the event that the relevant agreement between Databook and any ATPD Provider is terminated in accordance with its terms.
G. Customer acknowledges that the ATPD Providers are third party beneficiaries of the Agreement (including this Addendum), entitled to enforce all provisions of such agreement relating to the Additional Third-Party Data Service.
H. Notwithstanding any warranties or disclaimers thereto made in the Agreement, Customer agrees and acknowledges:
i). THE DATA PROVIDED THROUGH THE ADDITIONAL THIRD-PARTY DATA SERVICE (THE “ATP DATA”) IS PROVIDED TO CUSTOMER ON AN “AS IS” BASIS. DATABOOK, ITS INFORMATION PROVIDERS, AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF ANY OF THE ATP DATA MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE ATP DATA (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DATABOOK, ITS INFORMATION PROVIDERS AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING ANY OF THE ATP DATA EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ORIGINALITY, ACCURACY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
ii). CUSTOMER ASSUMES THE ENTIRE RISK OF ANY USE CUSTOMER MAY MAKE OF THE ATP DATA. IN NO EVENT SHALL DATABOOK, ITS INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF ANY OF THE ATP DATA, BE LIABLE TO THE CUSTOMER, OR ANY OTHER PERSON, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE INABILITY OF THE CUSTOMER TO USE THE ATP DATA, REGARDLESS OF THE FORM OF ACTION, EVEN IF DATABOOK, ANY OF ITS INFORMATION PROVIDERS, OR ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF ANY OF THE ATP DATA HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
I. In addition to any indemnification obligations in the Agreement, Customer agrees to indemnify and hold harmless Databook, its information providers, and any other third party involved in or related to the making or compiling of the Additional Third-Party Data Service, from and against any claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and costs, as incurred, arising in any manner out of the Customer’s or any third party’s use of, or inability to use, the Additional Third-Party Data Service or any breach by the Customer of the use restrictions regarding the Additional Third-Party Data Service.
J. To the extent there is any conflict between the Agreement and this Addendum, this Addendum shall control.