This agreement describes the terms that govern your access to and use of the mixed software and hardware platform known as the Prescriptive Analytics Platform (“Platform”) offered by Raven Telemetry Inc. (“Vendor”). The agreement constitutes an agreement between the entity you represent (“Customer”) and Vendor, and takes effect on the earlier of (A) Customer’s first use of the Platform and (B) the date on which Vendor and Customer enter into a signed proposal, statement of work, work order
or other document that incorporates the terms of this agreement by reference (“Proposal”).
The parties want Vendor to make the Platform available to Customer and modify it to meet certain Customer requirements. The parties also want Vendor to provide maintenance and support services related to the Platform.
The parties therefore agree as follows:
The following capitalized terms will have the following meanings whenever used in this agreement.
1.1. “Customer Data” means data in electronic form input or collected through the Platform by or on behalf of Customer.
1.2. “Customization Services” means the Vendor services described in a Proposal.
1.3. “Deliverable” means any software or other deliverable created pursuant to the Customization Services, in object code format.
1.4. “Documentation” means the Platform’s standard user manual.
1.5. “Hardware” means Vendor’s Platform hardware.
1.6. “Software” means Vendor’s Platform software, in object code format.
1.7. “Specifications” means: (a) for the Platform, Vendor’s standard specifications described in the then-current Documentation; and (b) for each Deliverable, the specifications and requirements described in a Proposal.
1.8. “Term” is defined in Section 12.1.
1.9. “Upgrade” means new versions, updates, or upgrades of the Platform.
1.10. “User” means an employee or contractor of Customer.
2. LICENSES & DELIVERY
2.1. License. Vendor hereby grants Customer a nonexclusive license to use the Platform solely for Customer’s internal business purposes, in accordance with and for the purpose contemplated by this agreement, subject to the restrictions in Section 2.2 below.
2.2. Restrictions on Platform Rights. All Hardware and all copies of Software created or transferred pursuant to this agreement are licensed, not sold, and Customer receives no title to or ownership of any Hardware or Software. Furthermore, Customer receives no rights to the Platform other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense any part of the Platform; (b) use the Platform for service bureau or timesharing purposes or in any other way allow third parties to exploit the Platform; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any part of the Platform (including any Software source code).
2.3. Delivery. Vendor will deliver the Platform and Documentation to Customer within 30 days of signing a Proposal, unless otherwise agreed to in the Proposal, in a manner determined by Vendor, acting reasonably.
2.4. Documentation: Vendor will revise the Documentation as reasonably necessary in response to changes to the Platform and deliver electronic copies of such revisions, without further charge. Such revisions will constitute “Documentation” as of delivery to Customer. Customer may reproduce the Documentation as reasonably necessary to support internal use of the Platform.
3. CUSTOMIZATION SERVICES
3.1. Provision of Customization Services. Vendor will provide the Customization Services, and Customer will provide such assistance and cooperation as is necessary or convenient to facilitate the Customization Services.
3.2. Deliverables. (a) Acceptance & Rejection. Each Deliverable, and the Software itself upon incorporation of the final Deliverable, will be considered accepted (“Acceptance”) (i) when Customer provides Vendor written notice of acceptance or (ii) upon delivery, if Customer has not first provided Vendor with written notice of rejection. Customer may reject a Deliverable only in the event that it materially deviates from its Specifications, and only by written notice describing the nature of such deviation. In the event of such rejection, Vendor will correct the deviation and redeliver the Deliverable within 30 days. After redelivery pursuant to the previous sentence, the parties will again follow the acceptance procedures set forth in this Subsection 3.2(a). (b) Incorporation of Deliverables. Upon Acceptance, each Deliverable will constitute an element of the Platform and will thereafter be subject to this agreement’s terms regarding the Platform, including without limitation license, warranty, and indemnity terms, as applicable.
4.1. Provision of Maintenance. During each Maintenance Term, Vendor will exercise commercially reasonable efforts to correct any failure of the Platform to perform according to its Specifications (“Maintenance”).
4.2. Upgrades. During each Maintenance Term, Vendor may at its discretion provide Customer with certain Upgrades. Upon delivery to Customer, each Upgrade will constitute an element of the Platform and will thereafter be subject to this agreement’s terms regarding Platform, including without limitation license, warranty, and indemnity terms, subject to any additional Customization Services (which may incur additional Fees) that Vendor may recommend.
5. FEES & REIMBURSEMENT
5.1. Fees. Customer shall pay Vendor the amounts described in the Proposal (including without limitation fees and reimbursable expenses), plus applicable taxes, without adjustment or set-off (“Fees”).
5.2. Invoices. Payment against all invoices will be due within 30 days of receipt.
6. IP & FEEDBACK; CUSTOMER DATA
6.1. IP Rights in the Platform. Vendor retains all right, title, and interest in and to the Documentation and Platform, including without limitation Deliverables and Upgrades, except to the extent of the limited licenses specifically set forth in Section 2.1 (Licenses) and the last sentence of Section 2.4 (Documentation) above. Customer recognizes that the Platform and its components are protected by copyright and other laws.
6.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Customer or Users provide to Vendor, and nothing in this agreement or in the parties’ dealings arising out of or related to this agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
6.3. Customer Data. Customer possesses and retains all right, title, and interest in and to Customer Data, and Vendor shall reasonably facilitate access to and copying of Customer Data on Customer request. Vendor may permanently erase Customer Data 30 days after termination of this agreement. Notwithstanding this Section, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its users or customers.
7. CONFIDENTIAL INFORMATION
7.1. Confidential Information Defined. “Confidential Information” refers to any of the following that one party to this agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure, provided Discloser confirms such designation in writing within a reasonable time following disclosure; (c) any source code disclosed by Vendor and any names of actual or potential customers disclosed by Customer, whether or not marked as confidential; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that Confidential Information may include Discloser’s valuable trade secrets.
7.2. Nondisclosure. Recipient will not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this agreement (the “Purpose”). Recipient: (a) will not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 7; and (b) will not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient will protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient will give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense. Recipient will promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention.
7.3. Injunction. Recipient agrees that breach of this Article 7 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
7.4. Termination & Return. Upon termination of this agreement, Recipient will return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
7.5. Retention of Rights. This agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
8. PLATFORM AUDIT
During the Term of this agreement and the following two years, Vendor may audit Customer’s use of Platform on two days’ advance written notice. Customer will cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of Platform. Such audit will not unreasonably interfere with Customer’s business activities. If Vendor discovers unauthorized use, reproduction, distribution, or other exploitation of any
part of the Platform, Customer will reimburse Vendor for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Vendor may have. Vendor may not conduct an audit more than once per year. Customer’s books and records disclosed pursuant to an audit will be considered Customer’s Confidential Information pursuant to Article 7 above unless Customer informs Vendor to the contrary in writing.
9. REPRESENTATIONS & WARRANTIES
9.1. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this agreement.
9.2. Warranty Disclaimers. VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. Vendor does not warrant that the Platform will perform without error or that it will run without immaterial interruption. Vendor provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Platform made by anyone other than Vendor, unless Vendor approves such modification in writing; or (b) use of the Platform in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software that is not contemplated by the Specifications or Documentation.
10.1. From Customer. Customer will indemnify and defend Vendor and Vendor’s Associates (as defined below in Section 10.2) against any “Indemnified Claim,” meaning any claim, suit, or proceeding, including any third-party claim, arising out of, related to, or alleging any breach of this agreement or applicable laws, the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees.
10.2. Litigation & Additional Terms. The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 10.1 above: (a) include retention and payment of legal and court costs, as well as settlement at Indemnitor’s expense and payment of judgments; and (b) will be excused to the extent that the other contracting party’s (“Indemnified Party’s”) or any of such Indemnified Party’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (As used in this Article 10, a party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
11. LIMITATION OF LIABILITY
11.1. Dollar Cap. VENDOR’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO VENDOR DURING THE THREE MONTHS PRECEDING THE EARLIEST EVENT THAT GIVES RISE TO SUCH LIABILITY.
11.2. Exclusion of Consequential Damages. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES, OR LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.3. Clarifications & Disclaimers. CUSTOMER ACCEPTS THE SERVICE “AS IS,” WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. THE LIABILITIES LIMITED BY THIS ARTICLE 11 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES
IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 11, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 11 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12. TERM & TERMINATION
12.1. Term. This agreement will continue until terminated by either party as specifically authorized herein.
12.2. Termination for Cause. Either party may terminate this agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach.
12.3. Termination for Convenience. Vendor may terminate this agreement for any reason or no reason by written notice, effective in 60 days.
12.4. Effects of Termination. Upon termination of this agreement, Customer will cease all use of the Platform, return all Hardware, and delete, destroy, or return all copies of the Software and Documentation in its possession or control. The following will survive termination or expiration of this agreement: (a) any obligation of Customer to pay Fees incurred before termination; (b) Articles and Sections 2.2 (Restrictions on Platform Rights) 6 (IP & Feedback), 7 (Confidential Information), 8 (Platform Audit), 9.1 (Warranty Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this agreement that must survive to fulfill its essential purpose.
13.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer.
13.2. Users. Customer is responsible and liable for the acts and omissions of Users related to this agreement and to the products and services provided pursuant to this agreement, as if they were Customer’s own acts and omissions.
13.3. Notices. Notices pursuant to this agreement will be sent to the addresses stated in the applicable Proposal, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by email, or by certified mail, return receipt requested.
13.4. Force Majeure. No delay, failure, or default, other than a failure to pay Fees when due, will constitute a breach of this agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
13.5. Assignment & Successors. Neither party may assign this agreement or any of its rights or obligations hereunder without the other’s express written consent. Except to the extent forbidden in this Section 13.5, this agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
13.6. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this agreement will continue in full force and effect.
13.7. No Waiver. Neither party will be deemed to have waived any of its rights under this agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this agreement will constitute a waiver of any other breach of this agreement.
13.8. Choice of Law & Jurisdiction: This agreement will be governed solely by the laws applicable in the province of Ontario, including the federal laws of Canada, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the courts located in the province of Ontario. This Section 13.8 governs all claims arising out of or related to this agreement, including without limitation tort claims.
13.9. Conflicts. In the event of any conflict between a Proposal and the main body of this agreement, this main body will govern.
13.10. Construction. The parties agree that the terms of this agreement result from negotiations between them. This agreement will not be construed in favor of or against either party by reason of authorship.
13.11. Technology Export. Customer will not: (a) permit any unlawful third party access or use the Platform; or (b) unlawfully export any part of the Platform or otherwise remove it.
13.12. Entire Agreement. This agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
13.13. Execution in Counterparts. This agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
13.14. Amendment. This agreement may not be amended except through a written agreement by authorized representatives of each party.