Last revised on: January 10, 2018
This agreement (this “Agreement”) is made and entered into by and between ContextSmith, Inc., with its principal offices at 440 North Wolfe Road, Sunnyvale, CA 94085 (“ContextSmith”) and Customer (as defined in the applicable Subscription Order). This Agreement describes the terms under which ContextSmith will make its services available to Customer.
The parties agree as follows:
1. ORDERING AND SUBSCRIPTION PERIOD
1.1 Ordering. By executing one or more subscription orders under this Agreement (each a “Subscription Order”), Customer may obtain access to the content, data, application program interface (“API”) and other features offered through ContextSmith’s proprietary platform of servers, software and technology (the “Services”). The specific Services available to Customer are identified in the Subscription Order. All use of the Services by Customer is subject to the terms and conditions of this Agreement.
1.2 Subscription Period. The period of access to the Services will be specified in the applicable Subscription Order (“Subscription Period”) and if no period is specified, the Subscription Period will be twelve (12) months. A Subscription Order is not cancelable by Customer during a Subscription Period. At the end of the initial Subscription Period, the Subscription Period will automatically renew for successive one (1) year terms, unless Customer notifies ContextSmith in writing 60 days prior to the termination of the current Subscription Period, or as otherwise specified in a Subscription Order.
2. PLATFORM USE AND RESTRICTIONS
2.1 License. ContextSmith hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access the Services specified in the Subscription Order during the Subscription Period for its internal business purposes.
2.2 Account Password and Security. Customer’s account with ContextSmith will provide Customer with access to the Services and the API and other functionality that ContextSmith may provide from time to time. Customer shall protect its passwords and take full responsibility for Customer’s own as well as any third party use of the Customer account. Customer is solely responsible for any and all activities that occur under its accounts, except for any activities performed by ContextSmith as set forth herein. Customer agrees to notify ContextSmith immediately upon learning of any unauthorized use of its account or any other breach of security. From time to time, ContextSmith’s support staff may log in to the Services under Customer’s password in order to maintain or improve the Services, including for the purpose of providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access.
2.3 Services Modifications. ContextSmith is constantly innovating in order to provide the best possible experience for its customers. Customer acknowledges and agrees that the form and nature of the Services that ContextSmith provides may be improved from time to time without prior notice to you, including without limitation security patches, added functionality, and other enhancements. Changes to the form and nature of the Services will be immediately effective with respect to all versions of the Services.
2.4 Restrictions. Customer shall not, and shall not permit its clients to: (i) resell, sublicense, distribute or otherwise provide access to the Services, or data or information contained in or derived from the Services, to any third party or use the Services outside the scope of the license granted herein; (ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Services or otherwise attempt to discover any source code or trade secrets related to the Services; or (iii) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of ContextSmith. Customer will indemnify, defend and hold ContextSmith harmless against any damages, losses, claims or judgments arising out of any violation of Section 2 of this Agreement.
2.5 Training and Support.
2.5.1 Training. In consideration of Customer’s payment of training and support fees indicated in a Subscription Order, ContextSmith will provide the training and support services set forth in the Subscription Order. Training sessions will be conducted at ContextSmith’s facility and/or at Customer’s location. Customer will reimburse ContextSmith’s reasonable travel costs and living expenses incurred by ContextSmith’s employees and subcontractors for travel from ContextSmith’s offices in connection with the performance of training services.
2.5.2 Customer Support. ContextSmith will make Services documentation available through its website. In addition, ContextSmith will provide online support at email@example.com during the hours of 8 am to 6 pm PT. Additional support may be expressed in Subscription Order.
3. TERM OF THE AGREEMENT
The term of this Agreement commences on the Effective Date and continues until all Subscription Periods, including any renewals thereof, have been terminated.
4. CHARGES, PAYMENT AND TAXES
4.1 Charges. Customer will be billed for use of the Services in accordance with the applicable Subscription Order. The pricing specified in a Subscription Order will be firm for the initial term of the Subscription Order. ContextSmith may provide notice of an increase in pricing in advance of Subscription Period renewal.
4.2 Payment. Invoices will be due and payable thirty (30) days from date of invoice and will be paid in immediately available U.S. funds by wire transfer or other method as mutually agreed to by the parties. Any invoiced amount not paid by the due date will bear a late payment charge at the rate of one and a half percent (1.5%) per month (or such lower amount as may be required by law) until paid.
4.3 Taxes. Fees do not include and Customer shall pay, indemnify and hold ContextSmith harmless from all applicable sales/use, gross receipts, value-added, GST or other tax on the transactions contemplated herein, other than taxes based on the net income or profits of ContextSmith.
“Confidential Information” means, subject to the use license granted in Section 10.2, any non-public information relating to or disclosed in the course of this Agreement, including the Services and data or information contained in or derived from the Services. The receiving party will not share Confidential Information with third parties (except as otherwise provided in this Agreement, including Section 2), will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only as permitted in this Agreement and for fulfilling its obligations under this Agreement. Confidential Information does not include information that: (a) is or becomes part of the public domain through no fault of the receiving party; (b) was already in possession of the receiving party without restriction; (c) is independently developed by the receiving party without violation of this Section; or (d) is received from a third party without restriction. The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. At the request of the disclosing party, the receiving party will return all of the other party’s Confidential Information that is reduced to writing(s), drawing(s), schematic(s), or any other form of documentation, or destroy all such material, and permanently delete if in electronic form, and to certify the destruction to the disclosing party, provided however, if the Agreement is not terminated for cause, the Customer may retain copies of the reports or information printed or obtained through the Services subject at all times to the license restrictions specified in Section 2.4 and the non-disclosure requirements of this Section 5.
6.1 For Cause. Either party may terminate this Agreement and all Subscription Orders, immediately upon written notice to the other party, if the other party: (a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within thirty (30) days after written notice; (b) commits a material breach of this Agreement which cannot be remedied; or (c) is repeatedly in breach of this Agreement. Abuse or excessive usage of the Services API beyond the scope permitted under a Subscription Order will be deemed a material breach justifying ContextSmith’s termination or suspension of a Customer’s account.
6.2 Effect of Termination. Upon termination of this Agreement, all license rights hereunder will immediately terminate and Customer will: (i) cease use of the Services, including all data or information contained in or derived from the Services; (ii) destroy or (if requested by ContextSmith) return to ContextSmith all copies or other embodiments of the any and all data or information contained in or derived from the Services, and all other ContextSmith Confidential Information; and (iii) pay to ContextSmith all amounts due and owing under this Agreement.
7. DISCLAIMER AND LIMITATION OF LIABILITY
7.1 DISCLAIMER. THE SERVICES AND ALL DATA AND INFORMATION OBTAINED VIA THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT UNDER APPLICABLE LAW, CONTEXTSMITH MAKES NO WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR CUSTOMER’S USE OF THE SERVICES, OR ANY DATA OR INFORMATION OBTAINED VIA THE SERVICES OR PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 LIMITATION OF LIABILITY.
7.2.1 EXCEPT FOR A BREACH OF SECTION 2.4 OR SECTION 5, OR WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, EACH PARTY’S ENTIRE AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS OF WHATEVER NATURE ARISING OUT OF THE PROVISION AND USE OF THE SERVICES OR OTHERWISE ARISING IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO CONTEXTSMITH DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE MAKING OF THE CLAIM PURSUANT TO THE SUBSCRIPTION ORDER UNDER WHICH THE CLAIM AROSE.
7.2.2 EXCEPT FOR A BREACH OF SECTION 2.4 OR SECTION 5, OR WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, A PARTY SHALL NOT BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY CLAIMANT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, OR SPECIAL LOSS OR DAMAGES OF ANY KIND INCLUDING BUT NOT LIMITED TO LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, OR LOST PROFITS, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF THE PARTY AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. FORCE MAJEURE
Neither party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes (individually, each such event a “Force Majeure Event”).
9.1 Compliance with Laws. Each party shall comply with all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any government authority with respect to the Services and any data or information contained in or derived from the Services.
9.3 Indemnity. Each party shall indemnify, defend and hold harmless the other party against any damages, losses, claims or judgments arising out of any violation of this Section 9.
10. INTELLECTUAL PROPERTY AND CUSTOMER DATA
10.1 Customer agrees that, as between the parties, ContextSmith owns all intellectual property rights and all other proprietary interests that are embodied in or practiced by the Services and all data or information contained in or derived from the Services (other than Customer Data as defined below). ContextSmith grants no rights other than the rights expressly granted to Customer under this Agreement.
10.2 ContextSmith agrees that, as between the parties, Customer owns all data directly provided by Customer to ContextSmith for use with the Services (“Customer Data”). Notwithstanding anything to the contrary in this Agreement, including Section 5 (confidentiality), Customer hereby grants to ContextSmith a perpetual license to use such Customer Data, without attributing Customer Data to Customer, for enhancing the Services, ContextSmith’s methodologies, and ContextSmith’s products and services. This license includes the right to use Customer Data in the aggregate and with other data and to create derivative datasets for use in ContextSmith’s products and services.
11. REGULATORY REQUIREMENT
If a regulatory body, or a court of competent jurisdiction, issues a rule, regulation, law or order that has the effect of materially increasing the cost to provide use of the Services or canceling, changing, or superseding any material term or provision of this Agreement (collectively “Regulatory Requirement”), this Agreement shall be deemed modified in such a way as the parties mutually agree is consistent with the form, intent and purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the parties not be able to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then, upon written notice, either party may, to the extent practicable, terminate that portion of the Agreement impacted by the Regulatory Requirement.
12.1 Independent Contractors. ContextSmith and Customer are, and shall be deemed to be, independent contractors with respect to the subject matter of this Agreement. Nothing contained herein shall constitute this arrangement to be a joint venture or a partnership between ContextSmith and Customer. Neither party has any authority to enter into agreements of any kind on behalf of the other party. Each party shall be solely responsible for and shall hold the other harmless from any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax and workers’ compensation.
12.2 Waiver. No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach or default by the other party, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach or default or shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
12.3 Partial Invalidity. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and both parties shall negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision that is consistent with the original intent of the parties.
12.4 Amendment. Except as otherwise provided in this Agreement, this Agreement may be amended by the parties hereto at any time only by execution of an instrument in writing signed on behalf of each of the parties hereto. Any extension or waiver by any party of any provision hereto shall be valid only if set forth in an instrument in writing signed on behalf of such party.
12.5 Binding Effect. If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
12.6 Survival. Termination of this Agreement shall not affect either party’s accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended, including Sections 2.2, 4, 5, 6.2, 7, 9, 10 and 12.
12.7 Assignment. Except for assignment to affiliates, Customer may not assign or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of ContextSmith. ContextSmith may assign this Agreement to an affiliate or other entity without the written consent of Customer. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors and assigns.
12.8 Marketing Materials and Communications. Customer agrees that ContextSmith may utilize Customer’s trademark and/or trade name solely to identify it as a ContextSmith Customer on the ContextSmith website, in client lists and other marketing materials. Any other uses of Customer’s name and/or logo (other than as included in the Customer content and/or other items furnished to ContextSmith by Customer) shall require Customer’s prior written consent.
12.9 Notices. Unless otherwise specified, any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent by certified mail with the required pre-paid postage and return receipt requested, or delivered by a recognized courier service, shipment charges pre-paid, properly addressed to the individual signing this Agreement on behalf of the applicable party at its address specified in the opening paragraph of the Agreement and shall be deemed effective upon receipt.
12.10 Headings. The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
12.11 No Third Party Beneficiaries. Except as specifically stated in this Agreement, this Agreement is not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
12.12 Governing Law. This Agreement shall be governed by the laws of the State of California (irrespective of its choice of law principles). Each party consents to the exclusive jurisdiction of the state and federal courts sitting in San Francisco, California in any action, suit or proceeding hereunder.
12.13 Counterparts; Electronic Signature. This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same instrument, and a facsimile transmission or electronic delivery of a manual signature (e.g., .pdf) shall be deemed to be an original signature.
12.14 Entire Agreement. This Agreement, together with any Subscription Orders, schedules and exhibits attached hereto, all of which are incorporated by reference, sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby. Any and all previous agreements and understandings between or among the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.