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This AWS Marketplace data.world Enterprise User License Agreement (the “Agreement”) is effective as of the date that Customer accepts the Offer on AWS Marketplace or enters into a written agreement with data.world regarding the subject matter hereof or the Reseller Order is accepted or entered into between the Reseller and data.world (the “Effective Date”) and sets forth the terms and conditions governing Customer’s use of the Services provided through data.world’s proprietary software products, any applicable Client-Side Module, and the provision to Customer of other services in connection with those products. By accepting the offer on AWS, Customer is agreeing to be bound by the provisions of this Agreement and acknowledges and agrees to comply with the terms of the Order and the Agreement, its payment obligations hereunder and in the Order. Defined terms not otherwise defined in this Agreement shall have the meanings ascribed to them in the Order.
The Order to which this Agreement applies or Reseller Order, and additional Orders or Reseller Orders entered into by the parties from time to time, set forth the Software subscriptions and Services to be purchased by Customer under this Agreement, applicable fees, and other terms. No license rights are granted, and data.world has no obligation to provide any software subscriptions, licenses, or Services, except as specified in the applicable Order.
All Order(s) and Statements of Work accepted by Customer on AWS Marketplace or as entered into between the parties from time to time, all Addenda referenced herein and therein, and all other terms and conditions incorporated herein or therein by reference are incorporated by reference into this Agreement and constitute the entire agreement of the parties and supersede any prior and contemporaneous oral or written understanding as to the parties’ relationship and the subject matter hereof.
Definitions.
“Addenda” means additional software or service-specific terms and conditions that set forth in one or more addenda incorporated by reference into this Agreement or the applicable Order or the additional license requirements and notices, if any, contained in the Documentation.
“Additional Purchases” means additional integration tiers, additional blocks of Permissioned Users, additional or upgraded Services, or software functionality that can be purchased or subscribed to in order to supplement the base Subscription purchased.
“Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party (where “control” means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity).
“Beta Services” means data.world Services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Client-Side Module” refers to Software that is licensed to add functionality or capabilities in conjunction with an underlying Software product, which may be installed locally on the Customer System, and which may only be used in conjunction with the relevant underlying Software product and in accordance with this Agreement and any relevant Addenda.
“Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by Customer or any Permissioned User to the Software as implemented on the Third-Party Platform.
“Customer System” refers to Customer’s internal website(s), servers, and other equipment and software used in the conduct of Customer’s business.
“Documentation” means data.world’s then-current user manuals, as updated from time to time, that describe the functions, operation, and use of the Software and any applicable Client-Side Module, and that data.world makes generally available to licensees of the Software, whether in printed or electronic format.
“Offer” means the offer to subscribe to the Software and Services being offered by data.world on AWS Marketplace on the terms and conditions set forth therein and subject to this Agreement.
“Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org), including, but not limited to, any license that requires, or purports to require, as a condition of use, modification, or distribution, that (i) the code that is or could become subject to the license, be disclosed or distributed in source code form, or (ii) others have the right to modify or create derivative works of the code that is or could become subject to the license.
“Orders” refers to the Offer which is accepted by Customer on AWS Marketplace or by Customer’s execution of a written or electronic document, which details the Software, including any applicable Client-Side Module to be licensed or Services to be purchased by Customer subject to this Agreement, the payment of applicable fees, the initial term applicable to Customer’s use of the Software, and other terms. This Agreement governs all Orders or Reseller Orders. To be effective, Orders must be accepted on AWS Marketplace by Customer or signed by both parties. Other Orders for Additional Purchases, subject to this Agreement may be entered into from time to time.
“Permissioned User” means an identifiable individual, not necessarily named on the Effective Date, who is an employee, agent, contractor, or consultant of Customer and is designated by Customer to access the Software, regardless of whether or not the individual is actively using the Software at any given time. An individual shall only be designated as a Permissioned User on the earlier of (i) he or she is authorized by Customer to access the Software or (ii) once he or she has accessed the Software.
“Personal Information” means any information that does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, such as the individual’s name, address, social security number, etc., and any other information relating to an identified or identifiable individual. Personal Information includes all “nonpublic personal information,” as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), and “Personal Data” as that term is defined in EU General Data Protection Regulation (Regulation (EU) 2016/679) regarding (Directive 95/46/EEC) the protection of natural persons, including the processing of personal data and the free movement of such data, and all rules and regulations issued under any of the foregoing.
“Professional Services” means implementation services, integration and development work, training, and other consulting services provided by data.world to Customer as described in an Order, Addendum, or Statement of Work entered into by the parties.
“Reseller” means an authorized partner or reseller of data.world, Inc.
“Reseller Order” means the Orders or similar agreement between the Reseller and data.world.
“Scope of Use” means that, subject to this Agreement and unless provided otherwise in an applicable Order, Customer may use the Software for its internal business use (and not on behalf of its customers or other parties), which internal business use includes cataloging and tracking of data assets.
“Services” refers, collectively, to the Professional Services and the Support Services.
“Software” means data.world’s proprietary software products described in the applicable Order to which this Agreement is attached or in any Addenda, and includes Documentation and all related ideas, concepts, systems, software, interfaces, tools, utilities, templates, forms, content, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information of data.world for purposes of providing the Subscription and Services contemplated herein.
“Subscription” means the right to use the Software on a subscription basis and, if applicable, a license to use the Client-Side Module, all of which is set forth in an Order, together with the right to receive Support Services and use Updates during the Subscription Term.
“Subscription Term” means the subscription and license period for Customer’s use of the Software as set forth in an Order.
“Support Services” means data.world’s support and maintenance services for the Software.
“Third Party Software” means certain software delivered or performed by third parties that are required for the operation of, or interoperate with, the Software.
“Third Party Platform” refers to Amazon Web Services (“AWS”).
“Updates” are corrected or modified versions of the Software, including enhancements, modifications, error corrections, fixes, patches, and new releases.
Orders. Unless otherwise provided in an Order, Additional Purchases may be added during a Subscription Term at the then applicable rate, and Customer may elect to upgrade their Software Subscription tier, Services packages, or Permissioned User plans at the pricing then in effect. The cost of additional Subscriptions and upgrades shall be prorated for the remaining portion of the underlying Term. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by data.world regarding future functionality or features.
License Grants and Rights of Use.
Software.
License Grant. Subject to timely payment of the license fees and compliance with the Agreement, data.world hereby grants to Customer for the Term a limited, non-transferable, non-sublicensable, non-exclusive license to run and use the Software and any applicable Client-Side Module set forth in an Order or if purchased through a Reseller, the Reseller Order solely for Customer’s internal business purposes on a Subscription basis. All Software (other than Client-Side Modules) may only be installed on the Third-Party Platform. Use of the Software and any applicable Client-Side Module is expressly limited to the Scope of Use and subject to the limits specified in the applicable Order, or if purchased through a Reseller, the Reseller Order. Addons and additional Permissioned Users may be added as prescribed in Section 2. Customer is responsible to ensure that it and its Permissioned Users’ use of the Software and any applicable Client-Side Module is in compliance with the terms of this Agreement.
Provisioning and Delivery of the Software; License Keys. The Software ordered will be provisioned by data.world onto the Third-Party Platform except that Client-Side Modules ordered by Customer will be delivered via FTP download, HTTP download, or similar technology. data.world may include features that restrict or eliminate the use of the Software or any applicable Client-Side Module until data.world or its designated Reseller receives full payment. Customer agrees to comply with any acceptable use policies and other terms of the Client-Side Module and/or third-party service provider with respect to the Third-Party Platform. If a designated Reseller is providing access to the Software or Services, then Customer is solely responsible for (i) any access by the designated Reseller to Customer’s account, and (ii) its and its Permissioned Users’ compliance with any terms and conditions in the applicable agreement between Customer and the designated Reseller in addition to this Agreement.
License and Use Restrictions. Customer shall comply with the Documentation associated with the Software and any applicable Client-Side Module. Customer shall not, and shall not permit any Permissioned User to, directly or indirectly: (i) copy or otherwise use the Software, the Services or any applicable Client-Side Module, except as permitted under this Agreement, including the applicable Order; (ii) decrypt, circumvent or disable any security or other technological features or measures of the Software, the Services, or any applicable Client-Side Module; (iii) alter, modify, adapt, translate, or create (or attempt to create) derivative works based upon the Software, the Services, any applicable Client-Side Module, or the Documentation either in whole or in part; (iv) distribute, display, or transfer any of the Software, Services or any applicable Client-Side Module, except in connection with an assignment permitted under Section 16(j); (v) sublicense, sell, resell, rent, lease, or otherwise transfer rights or usage to the Software, the Services, or any applicable Client-Side Module, for any purpose including timesharing, rental, or service bureau purposes; (vi) remove, alter, or obscure any copyright, trademark, or proprietary notice in or displayed by the Software, the Services and any applicable Client-Side Module; (vii) transfer, use, import or export, directly or indirectly, the Software, the Services, or any applicable Client-Side Module in violation of any laws or regulations of any applicable government or governmental agency; (viii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any portion of the Software, the Services, or any applicable Client-Side Module, except and only to the extent expressly permitted by the law in effect in the jurisdiction in which Customer is located, despite this limitation; (ix) use any portion of the Software, the Services, or any applicable Client-Side Module to create a competitive service, product, or technology; (x) interfere with or disrupt the integrity or performance of the Software, the Services, or any applicable Client-Side Module; (xi) use, the Services, combine, compile, or link the Software, or any applicable Client-Side Module with any software subject to an Open Source Software license; (xii) attempt to gain unauthorized access to the Software, the Services, or Client-Side Module; (xiii) permit multiple users to share credentials to access the Software, the Services, or any applicable Client-Side Module; or (xiv) copy any ideas, features, functions or graphics of the Software, the Services, any applicable Client-Side Module. Customer shall not, and shall not permit any Permissioned User to, use any applicable Client-Side Module, the Services, or the Software to directly or indirectly upload or transmit any Customer Data or other data, documents, or other material that (A) infringe the intellectual property rights or other personal or proprietary rights of any third party, (B) violate any applicable law, statute, ordinance, regulation, or treaty, or (C) contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or Personal Information of any person or entity. Customer and its Permissioned Users are solely responsible for the content of their transmissions involving the Software, the Services, and any applicable Client-Side Module. Customer agrees not to use any of the Software, the Services, or any applicable Client-Side Module: (1) for illegal purposes or in any illegal manner; or (2) to interfere with or disrupt other network users, network services, or network equipment. Interference or disruptions include distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and use of the network to make unauthorized entry to any other machine accessible via the network. Customer shall ensure that all employees and any independent contractors who are Permissioned Users are legally bound by and comply with this Agreement. Customer shall remain fully liable for all acts and omissions of its employees, independent contractors, and Affiliates, as if such acts and omissions had been committed by Customer itself. Any use of the Software, the Services, or any applicable Client-Side Module in breach of the foregoing by Customer or Permissioned Users that in data.world’s judgment threatens the security, integrity, or availability of the Software, the Services, or any applicable Client-Side Module may result in data.world’s immediate suspension of access to the Software, the Services, or any applicable Client-Side Module, however data.world will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
No Other License. The Software and any applicable Client-Side Module are licensed and not sold. No use of the terms “sell” or “resell” in or in connection with this Agreement will be deemed to imply otherwise. Except as stated in this Agreement, there are no other licenses, either express or implied, granted to Customer related to the Software, the Services, any applicable Client-Side Module, or any other intellectual property of data.world. All right, title, and interest in and to the Software and applicable Client-Side Module, including (without limitation) all copies and modifications of the foregoing, the Services, the Work Product, the Documentation, and all intellectual property herein and therein, are and at all times will remain the property of data.world and its licensors. data.world and its licensors reserve all rights and licenses in and to such intellectual property not expressly granted to Customer under this Agreement. data.world and Customer will execute such other and further instruments reasonably requested by the other party which are necessary to give effect to the provision of this Section or to perfect an interest allocated herein.
Privacy. The data.world privacy policy at https://data.world/privacy is incorporated into this Agreement. data.world will not sell or share personal information it receives from, or on behalf of, Customer, unless specified otherwise in this Agreement, Order, Reseller Order, or in writing between the parties. data.world is processing personal information on behalf of Customer for the limited purpose of using the Software, Services, and applicable Client-Side Module for its internal business use, which includes cataloging and tracking of data assets. data.world will not retain, use, or disclose the personal information received from, or on behalf of, Customer for any purposes other than those specified in this Agreement, Documentation or privacy policy mentioned above. data.world shall notify Customer if it decides that it cannot meet the requirements of any California privacy law applicable to data.world’s operations.
Right in Customer Data and Usage Data. Customer grants to data.world, its Affiliates, its providers of applicable Third-Party Software, and applicable contractors a worldwide, limited-term license to host, use, copy, transmit and display Customer Data, as reasonably necessary solely for data.world to provide the Software, the Services, and any applicable Client-Side Module in accordance with this Agreement. Except as stated in this Agreement, there are no other licenses, either express or implied, granted to data.world to Customer Data. All right, title, and interest in and to Customer Data, including (without limitation) all copies and modifications of the foregoing and all intellectual property herein and therein, are and at all times will remain the property of Customer. Customer shall be responsible for the accuracy, quality, and legality of Customer Data and the means by which Customer acquired Customer Data. data.world owns the usage data derived from the operation of the Software, the Services, and any applicable Client-Side Module, including data regarding web applications utilized in connection with the Software, the Services, and any applicable Client-Side Module, configurations, log data, and the performance results for the Software, the Services, and any applicable Client-Side Module (“Usage Data”). Nothing herein shall be construed as prohibiting data.world from utilizing the Usage Data to optimize and improve the Software, the Services, and any applicable Client-Side Module, or otherwise operate data.world’s business; provided that if data.world provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or any Permissioned User(s) to any third party.
Support Services. The Services may include services or products, such as Third-Party Software, which are provided, developed, operated, hosted, or maintained by a third-party provider. data.world will provide Customer with the following support for the Software:
Online Knowledge Base. data.world will provide Customer with access to data.world’s regularly updated Documentation for the Software and online knowledge base.
Customer Portal. data.world will provide Customer with access to a web-based customer portal for online submission of issue tickets and support requests.
Services Package. data.world will use commercially reasonable efforts to provide Customer support in accordance with the applicable Services Packages specified in the Order(s) or Reseller Order and as described in the Service Packages Addendum, if any.
Support Consent. Customer hereby acknowledges and agrees that data.world employees and contractors shall have access to Customer’s data.world environment, including access to Customer Data as required to provide the Software and Services. Customer retains the right to remove such personnel at any time at its discretion.
Consumer Notice. data.world shall inform the Customer of any consumer request made to data.world relating to Customer Data pursuant to applicable state privacy law and with which Customer must comply. data.world will use commercial reasonable efforts to assist the Customer in complying with such request.
Professional Services. data.world will provide Professional Services as specified in the applicable Order, Statement of Work, or Addenda. With respect to any work product created, delivered, or developed by data.world during the course of providing Professional Services to Customer (each, a “Work Product”), data.world grants Customer a non-exclusive, non-transferable, internal use license to use the Work Product solely in connection with Customer’s use of the Software during the Term. For the avoidance of doubt, in no event does the term “Work Product” include Software, the Services, or any applicable Client-Side Module.
Beta Services. From time to time, data.world may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Customer understands and agrees that data.world may alter and amend the Beta Services, including without limitation by reducing the features or functionality or cease providing the Beta Services at any time without notice, and Customer further agrees that data.world shall have no liability to Customer for so altering or ceasing the Beta Services.
Third-Party Software.
Use of Third-Party Software. data.world or third parties may from time to time make available software products provided, delivered, or performed by third parties to Customer (“Third-Party Software”). Any acquisition by Customer of any such Third-Party Software, and any exchange of data between Customer and any provider of Third-Party Software, is solely between Customer and the applicable provider of the Third-Party software. data.world does not warrant or support any Third-Party Software, whether or not it is designated by data.world as “certified” or otherwise. If Customer installs or enables any Third-Party Software or any applicable Client-Side Module for use with the Software, Customer acknowledges that data.world may allow providers of that Third-Party Software or any applicable Client-Side Module to access Customer Data as required for the interoperation and support of such Third-Party Software or Client-Side Module with the Software. data.world is not responsible for any disclosure, modification, or deletion of Customer Data resulting from any such access by the providers of Third-Party Software. For avoidance of doubt, Customer will be responsible for the interoperation of any Third-Party Software with which Customer uses with regards to the Software and any Client-Side Module. Customer agrees that Customer will not make a claim against the Third-Party Software provider for any causes of action, damages, or losses that Customer may incur in connection with Customer’s use of the Software, Documentation or any Services provided under this Agreement.
Integration with Third Party Software. The Software may contain features designed to interoperate with Third-Party Software. To use such features, Customer may be required to obtain access to such Third-Party Software from its provider. If the provider of any Third-Party Software ceases to make the Third-Party Software available for interoperation with the corresponding Software on reasonable terms as determined by data.world, data.world may cease providing such features without entitling Customer to any refund, credit, or other compensation.
data.world Access Codes. To the extent that data.world requires that Customer grant data.world authorizations, passwords, or other user credentials to Third-Party Software or any applicable Client-Side Module (“data.world Access Codes”) to retrieve Customer Data or to enable interoperability with the Software, Customer agrees to promptly provide such data.world Access Codes. data.world will not share, reassign, divulge, or disclose any data.world Access Codes except to data.world employees, partners or contractors specifically engaged in the performance of the Software. data.world Access Codes will be deemed to constitute Customer’s Confidential Information subject to obligations of confidentiality.
Customer’s Other Responsibilities. data.world’s performance of Services is contingent upon Customer’s timely and effective performance of its responsibilities, decisions, and approvals, and data.world may rely on Customer decisions and approvals. Customer is responsible for the results obtained from the use of the Software, Services, and any applicable Client-Side Module. As it applies to operation of the Services, unless specified in an Order, Customer and its Permissioned Users shall be otherwise responsible for obtaining and maintaining any of its or their Customer Systems and ancillary services not provided by data.world or on behalf of data.world which is needed to connect to, access or otherwise use the Software, including computers, software, cloud infrastructure, hardware, operating systems, networking, and the like. Customer and its Permissioned Users shall further be responsible for maintaining the security of any of such Customer Systems, including any hardware devices used to operate the Software. If Customer receives notice, including from data.world, that Customer Data must be removed or modified to avoid violating applicable law, Customer will promptly do so. If Customer does not promptly remove or modify the Customer Data, data.world may suspend the Customer’s access to the Software, the Services, or the applicable Client-Side Module. If requested by data.world, Customer shall confirm deletion in writing, and data.world shall be authorized to provide a copy of such confirmation to any governmental authority, as applicable.
Fees and Payment Terms.
Fees. Customer will pay data.world or its designated Reseller the fees set forth in the applicable Order or Reseller Order. Customer will pay data.world or its designated Reseller for Professional Services as specified in the applicable Statement of Work. Any Additional Purchases or additional Professional Services will require the payment of additional fees in accordance with data.world’s then current terms and fees as prescribed in Section 2.
Changes to Fees. data.world may change its fees by notifying Customer in writing at least 30 days in advance of the effective date of the change except that changes to license fees to the Software and any applicable Client-Side Module will not apply until the next subsequent Extension Term or the order of Additional Purchases. Changed rates applicable to Professional Services will apply to any Statement of Work entered into after the effective date of the increase but will not affect the rates for Professional Services provided under a Statement of Work signed before the effective date, except as data.world (or Reseller) and Customer otherwise agree.
Additional Payment Obligations. All payments made by Customer are non-refundable (except as expressly set forth herein) and will be made in U.S. dollars. Amounts charged by data.world do not include applicable taxes or similar fees now in force or enacted in the future resulting from any transaction under this Agreement. Customer is responsible for all such amounts and will pay them in full (except for taxes based on data.world’s net income). Fees are due either:
i. As specified in the agreement between the designated Reseller and Customer; or
ii. Within 30 days from receipt of data.world’s invoice (or as otherwise set forth in the invoice) unless subject to a reasonable and good faith dispute. Past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law. In addition, Customer will reimburse data.world for all reasonable and actual costs incurred by data.world in collection of delinquent amounts not subject to a reasonable and good faith dispute.
Suspension of Subscription. If any charge owing by Customer under any Order is 30 days or more overdue, data.world may, without limiting is other rights and remedies, suspend the use of the Software, the Services or applicable Client-Side Module until such amounts are paid in full, provided that, data.world (or its designated Reseller) will give Customer at least 10 days’ prior notice that its account is overdue before suspending services to Customer. Notwithstanding the above, data.world will not suspend an account if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Reseller Orders. This Section applies if Customer purchases the Software, Services, or applicable Client-Side Module through a Reseller of data.world.
Payment. Instead of paying data.world, Customer will pay the applicable amounts to the Reseller, as agreed between Customer and the Reseller. Section 10(d) shall apply if data.world does not receive the corresponding payment from the Reseller.
Order Details. Instead of an Order with data.world, Customer’s order details will be as stated in the order placed with data.world by the Reseller on Customer’s behalf, and the Reseller is responsible for the accuracy of any such order as communicated to data.world.
Refund. If Customer is entitled to a refund under this Agreement, then unless otherwise specified by data.world, data.world will refund any applicable fees to the Reseller, and the Reseller will be solely responsible for refunding the appropriate amounts to Customer.
Modifications. Resellers are not authorized to modify this Agreement or make any promises or commitments on data.world’s behalf, and data.world is not bound by any obligations to Customer other then as set forth in this Agreement.
Limitation of Liability Cap. The amount paid or payable by the Reseller to data.world for Customer’s use of the Software, the Services, or the Client-Side Module under this Agreement will be deemed the amount actually paid or payable by Customer to data.world under this Agreement for purposes of calculating the limitation of liability in Section 14.
Audit Rights. Customer hereby grants data.world and its independent auditor designee(s) (who are bound by obligations of confidentiality), at data.world’s expense and no more than once annually, the right to audit Customer‘s compliance with this Agreement upon 30 days’ written notice, during Customer’s business hours, conducted in such manner as not to interfere unreasonably with Customer’s normal business activities. All information provided to, made available, or accessed by data.world are deemed to be Confidential Information of Customer. Customer will at no cost to data.world (i) provide any assistance reasonably requested by data.world or its designee in conducting any such audit, including installing and operating audit software subject to Customer’s access policies, and (ii) make requested personnel, records, and information pertaining to Customer’s adherence to license and payment terms hereunder available to data.world or its designee. The parties will cooperate so that the audit is completed in a timely and expeditious manner. Customer’s failure to comply with the provisions of this section will constitute a material breach of this Agreement. If the audit reveals any noncompliance, Customer will reimburse data.world for the reasonable costs and expenses of the audit (including but not limited to reasonable attorneys’ fees), and Customer will promptly cure any such noncompliance; provided, however, that the obligations under this Section do not constitute a waiver of data.world’s termination rights and do not affect data.world’s right to payment for Software and any applicable Client-Side Module related to usage in excess of the amount for which payment was remitted.
Upon reasonable request of the Customer and at Customer’s expense, data.world may assist Customer with any reasonable assessment needed to demonstrate Customer’s compliance with the obligations of state law regarding data privacy no more than once every twelve (12) months. data.world may provide a report showing its policies and technical and organizational measures in place in satisfaction of this obligations. Customer may, upon prompt notice and at its expense, take reasonable and appropriate steps to request remediation of the unauthorized use of personal information upon receipt of its audit.
Limited Warranty; Warranty Disclaimer.
Software.
Warranty. data.world warrants to Customer that the Software, as updated and when used as permitted under this Agreement and in accordance with the instructions in the Documentation will operate in accordance with, and conform substantially to, its associated Documentation (except for minor defects and errors not material to the core functionality of the Software under normal use and circumstances) during the Term. data.world will use commercially reasonable efforts to correct substantial malfunctions of the Software provided that the malfunctions are reproducible, and Customer provides data.world with prompt notice and sufficient detail regarding the malfunctions. If data.world is unable to do so within a commercially reasonable timeframe, Customer’s sole remedy is to terminate the applicable Order on written notice to data.world and receive a refund, on a pro-rata basis, of any prepaid, unused license fees under that Order. Customer’s exclusive remedy, and data.world’s entire liability, for any breach of this section 11(a)(i), or any claim based on the failure or unavailability of the Software and any applicable Client-Side Module, is limited to re-performance of the Software and/or Services, to the extent such breach can be cured by re-performance, or, Customer may terminate the applicable Order on written notice to data.world and receive a refund, on a pro-rata basis, of any prepaid, unused license fees under that Order. Both parties acknowledge and agree that further limits of its remedies for breach of this warranty are set forth in Section 11 of this Agreement.
Warranty Exceptions. data.world has no obligations or responsibilities of any kind with respect to: (A) problems which are not caused by defects in the Software, (B) problems caused by the failure to implement and operate the Software in the operating environment specified in the applicable Documentation and any other written instructions supplied by data.world or its licensors, as applicable, (C) problems resulting from the failure to implement solutions and Updates made available to Customer, (D) problems in the use or functioning of the Software caused by the combination, operation, or use of the Software with any items not contemplated in the Documentation, (E) use of the Software inconsistent with the Documentation, (F) problems arising from any modifications or other alterations of the Software by any person or entity other than data.world, (G) problems resulting from data.world’s adherence to Customer’s specifications or instructions, (H) problems caused by customizations of the Software requested by Customer or on Customer’s behalf, or (I) the Beta Services. data.world provides warranty support only for the most current major release of the Software and, for a period of twelve months subsequent to the release date of the current major release or the immediately preceding major release. data.world has no support obligation where Customer is using a version of the Software that is not a then-supported release.
Malicious Code. data.world warrants that the Software will not contain any computer viruses, worms, back doors, Trojan horses, Easter eggs, time bombs, and other forms of malicious code (“Malicious Code”) when made available by data.world to Customer. If Malicious Code is introduced into Customer’s computer systems by the Software, data.world will use commercially reasonable efforts to assist and work with Customer, at Customer’s direction, to remediate the damage caused by the Malicious Code, provided that Customer: (A) has taken all prudent business measures to prevent introduction of any such Malicious Code into its computer systems, (B) takes all prudent business measures to minimize the effects of any such Malicious Code, and (C) delivers sufficient documentation to data.world to validate Customer’s belief that the Malicious Code was introduced into Customer’s computer system by the Software.
Items Not Covered by Warranty. The Third-Party Platform, Beta Services and Third-Party Software are provided on an “AS IS” basis and “AS AVAILABLE.” However, the suppliers and licensors of the Third-Party Platform and the Third-Party Software may provide their own warranties to Customer.
Warranty Disclaimer. The provisions of this Section 11 constitute Customer’s sole and exclusive remedy, and data.world’s sole and exclusive liability, for breach of the warranties set forth in this Agreement. data.world makes no other warranties, representations, guarantees, or conditions of any kind, whether implied, statutory, or otherwise, and expressly disclaims all other warranties, representations, guarantees, conditions, and representations, whether oral or written, express or implied, or arising by law, usage of trade or course of dealing, course of performance, prior oral or written statements, or otherwise, including the warranties of merchantability, fitness for a particular purpose, correctness, reliability, and accuracy, title, and non-infringement. Neither data.world nor any of its service providers, licensors, employees or Agents warrant or make any representations (i) that the Software, Client-Side Module, Services, materials, and other functions contained in the Software, or Services, and the operation thereof, will be uninterrupted or error-free or (ii) regarding the use or the results of the use of the Software, Client-Side Module, or Services in terms of correctness, accuracy, reliability, or otherwise. Neither data.world nor any of its service providers, licensors, employees, or Agents will be liable for unauthorized access to or alteration, theft, or destruction of Customer’s or the Permissioned Users’ data files, programs, procedures, Customer Data or Permissioned Users’ data, or other information through criminal or fraudulent means or devices, or any other method, unless and to the extent such access, alteration, theft, or destruction is caused as a result of, gross negligence or intentional misconduct by data.world. data.world expressly disclaims any representations or warranties that Customer’s use of the Software or any applicable Client-Side Module will satisfy any statutory or regulatory obligations, or will assist with, guarantee or otherwise ensure compliance with any applicable laws or regulations, including, but not limited to, HIPAA or Gramm-Leach-Bliley act of 1999.
Confidentiality.
Confidential Information Defined. “Confidential Information” means all confidential and proprietary information of a party (as the disclosing party) disclosed to the other party (as the receiving party), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business and marketing plans, technology and technical information, product designs, and business processes. In the case of data.world, Confidential Information includes the Software, any applicable Client-Side Module, the Work Product, the Services, any Additional Purchases, and the terms of this Agreement, including each Order or Reseller Order.
Exclusions from Confidentiality. Confidential Information does not include any information that, without breach of any obligation owed to the disclosing party: (i) is or becomes generally known to the public without breach by the receiving party of any obligation or duty of confidentiality, (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation or duty of confidentiality, (iii) was independently developed by the receiving party without use or reference to the Confidential Information of the disclosing party, or (iv) is received from a third party without an obligation or duty of confidentiality. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it will provide the disclosing party with prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure. For the avoidance of doubt, data that data.world or its licensors derive or create from information gathered by data.world and its licensors that relates to performance of the Software shall not be deemed to be Customer Data to the extent such information does not contain (or is stripped of all) Personal Information and is aggregated with such data of other customers.
Obligations regarding Confidential Information. The receiving party will not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement, except with the disclosing party's prior written consent. The receiving party will protect the confidentiality of the disclosing party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). The receiving party will promptly notify the disclosing party if it becomes aware of any actual or suspected breach of confidentiality of the disclosing party's Confidential Information. Upon any termination of this Agreement, the receiving party will continue to maintain the confidentiality of the disclosing party's Confidential Information and, upon request, return to disclosing party or destroy (at the disclosing party's election) all materials containing such Confidential Information. Notwithstanding the foregoing, a party may retain copies of the other party’s Confidential Information as may be required by its legal counsel, or its compliance or automated back-up archiving practices, provided that any such retained Confidential Information will remain subject to the confidentiality and non-disclosure obligations set forth in this Agreement for so long as such Confidential Information is so retained.
Injunctive Relief. In the event of a breach (or threatened breach) by the receiving party of any of its obligations regarding the disclosing party’s Confidential Information, the disclosing party will be entitled to seek injunctive relief, in addition to any other remedies available to it.
Indemnification.
By data.world.
Indemnification Obligation. data.world will defend Customer and its respective officers, directors, and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims, and demands by a third-party (a “Third-Party Claim”) which arise out of or relate to any allegation that the Software, as updated by data.world and used in accordance with this Agreement and the Documentation, infringes such third-party’s copyrights or misappropriates its trade secrets, and will pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such Third-Party Claim.
Mitigation. In addition to data.world’s obligation of indemnification, if the Software or any applicable Client-Side Module becomes or, in data.world’s opinion, is likely to become the subject of a claim of infringement, data.world may, at its option and expense, either procure for Customer the right to continue using the Software and/or any applicable Client-Side Module or replace, repair, or modify the Software and/or any applicable Client-Side Module to make it non-infringing. If data.world, in its sole discretion, concludes that neither of these alternatives is reasonably available or commercially feasible, data.world may terminate this Agreement or Customer’s right to use the Software and/or any applicable Client-Side Module and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Software and/or any applicable Client-Side Module due to such claim and the remaining days in the then-current Subscription Term. The foregoing states the entire obligation and liability of data.world with respect to any infringement claim.
Exceptions. data.world’s indemnification obligations will not apply to any claim resulting from: (A) the combination, operation, or use of the Software or applicable Client-Side Module with other products, services, data, or documentation if the claim would have been avoided by the use of the Software or applicable Client-Side Module without such combination, operation, or use, (B) use of the Software or applicable Client-Side Module if it has been modified or otherwise changed by a party other than data.world, (C) use of the Software or applicable Client-Side Module in a manner not expressly permitted by this Agreement, (D) use of other than the most current release of the Software or applicable Client-Side Module, (E) Customer’s continued use of infringing Software or any applicable Client-Side Module after termination or after Customer is supplied with modified or replacement non-infringing Software or the applicable Client-Side Module, and as contemplated herein, (F) materials developed by data.world or on its behalf in accordance with Customer’s specifications or instructions, (G) use of Open Source Software; (H) Customer’s violation of applicable law, (I) Third-Party Software or a Third-Party Platform; (J) an allegation that does not state with specificity that the Software or Client-Side Module is the basis of the claim against Customer; or (K) arises from Beta Services or any data.world free service.
Sole Remedy. The foregoing states the entire obligation and liability of data.world with respect to the infringement of any intellectual property or proprietary rights by the Software or otherwise.
By Customer. Customer will defend data.world and its Affiliates and their respective officers, directors and employees (“data.world Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (i) any actual or alleged claim that the Customer Data (and the exercise by data.world of the rights granted herein with respect thereto) infringes, misappropriates, or violates any third-party’s intellectual property, privacy, or publicity rights; (ii) Customer’s use or alleged use of the Software, or any applicable Client-Side Module other than as permitted under this Agreement; or (iii) arising from the occurrence of any of the exceptions set forth in Section 13(a)(iii). Customer will pay the amount of any final judgment awarded (including reasonable attorney’s fees and costs) or final settlement made with respect to such Third-Party Claim.
Conditions to Indemnification. To qualify for indemnification under this Agreement, the party requesting the indemnification agrees to (i) promptly notify the indemnifying party in writing of the existence of any such action, (ii) grant the indemnifying party sole authority and control for the defense or settlement of such action, provided, however, that no event will such settlement require the admission of wrongdoing, payment of damages or require any form of non-monetary relief on the part of the indemnified party without the indemnified party’s prior consent, and (iii) provide the indemnifying party with all reasonable assistance for the defense or settlement of such action. In no event will the party requesting the indemnification settle any claim without the indemnifying party’s prior written consent. The party requesting the indemnification may elect to participate in any such action with an attorney of its own choice and at its own expense subject to the indemnifying party’s right to control the defense and settlement.
Limitation of Liability. Except with respect to Customer’s misappropriation of data.world’s or any third-party’s intellectual property rights licensed or otherwise provided or made available in connection herewith, each party’s obligation of indemnification under Section 13 (“Indemnification”), and Customer’s obligation to pay amounts due under this Agreement, each party’s total liability to the other from any cause whatsoever, whether for breach of contract or other default, negligence, misrepresentation, or other contract or tort claim, is limited to the amount of any actual direct damages or loss, up to the total payments made by Customer to data.world in the prior twelve (12) month period for the Software or Services which were the subject of the claim. In no event will either party be liable for any special, incidental, indirect, exemplary, punitive, or consequential damages, including but not limited to those for business interruption or loss of profits, even if such party knew or should have known of the possibility of such damage. Furthermore, in no event will data.world be liable for third party claims against Customer for losses or damages (other than those for which data.world indemnifies Customer as set forth in Section 13 (“Indemnification”)), or loss of, or damage to, Customer’s records or data. The exclusions and limitations of liability above shall apply regardless of whether (a) arising out of or in connection with this Agreement or its subject matter; or (b) under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, and regardless of whether such liabilities are foreseeable and whether data.world has been advised of the possibility or likelihood of such liabilities. the disclaimer of warranties and limitations of liability contained in this Agreement are fundamental parts of the basis of data.world’s bargain hereunder, and customer acknowledges that such provisions represent a reasonable allocation of risk. Multiple claims will not expand the limitations set forth herein.
Nothing in this Section shall limit the remedies available to Customer pursuant to its agreement with the designated Reseller to the extent applicable.
Term and Termination.
Term. This Agreement commences on the Effective Date and remains in effect until all Orders entered into by the parties have expired or been terminated. The initial Subscription term applicable to each Order means the period which commences on the Order Effective Date specified in the relevant duly executed Order or Reseller Form and continues for the initial Subscription term specified in the Order (each, an “Initial Term”). Upon expiration of the Initial Term of an Order or Reseller Form, the Order or Reseller Order will extend for successive twelve month periods (each of which is referred to as an “Extension Term” and, together with the Initial Term, is referred to as the “Term”) as described in that Order or Reseller Order (and, if not described, then upon expiration of the Initial Term (or any Extension Term) of an Order or Reseller Order, the Order or Reseller Order, will automatically extend for a subsequent twelve month period, unless one party elects to terminate it by giving the other party at least 90 days’ written notice prior to the end of the Initial Term or any Extension Term).
Termination for Cause. Either party may terminate this Agreement, an Order or a Statement of Work hereunder upon 30 days prior written notice to the other party, if (i) the other party is in material breach under this Agreement and fails to cure such material breach within 30 days after delivery of such written notice; or (ii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the party and is not dismissed within ninety (90) days.
Effect of Termination; Survival. Except as otherwise provided herein, in the event of termination, each party will return to the other the original and all copies of the Confidential Information in the other’s possession, custody, or control or, in lieu of returning such Confidential Information, destroy all copies of such Confidential Information, and certify to such destruction in a writing signed by its officer. In addition, Customer will (i) immediately stop using the Software and any applicable Client-Side Module, and (ii) return to data.world or destroy, as described above, the original and all copies of the Software and any applicable Client-Side Module. Customer’s obligation to pay data.world amounts due hereunder will survive any expiration or termination of this Agreement. The terms of any other Sections that by their nature are intended to extend beyond termination will survive termination of this Agreement for any reason, provided that the parties' rights and obligations under the Section entitled “Indemnification” shall survive for six (6) years following termination or expiration of this Agreement and/or any Order.
General.
Governing Law. This Agreement will be governed exclusively by the laws of the State of Texas, without regard to its conflicts of laws rules. Any disputes arising under this Agreement between the parties will be resolved by and jurisdiction will be exclusively in the courts of the State of Texas with venue exclusively in the County of Travis, Texas. The United Nations Convention on Contracts for the International Sale of Goods will not apply. The parties also agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within two years after such claim or cause of action arose or be forever barred.
Suggestions. Customer may from time to time provide suggestions, comments, enhancement request or other feedback to data.world with respect to the Software, Services or Documentation, including bugs, errors, and feature requests (“Feedback”). data.world and its licensors own all right, title, and interest in and to all such Feedback.
Publicity. Customer agrees that data.world may publicly reference and use Customer’s name and trademarks to identify it as a customer in data.world’s business development and marketing efforts, including on its websites. At data.world’s request, Customer agrees to act as a reference for data.world by speaking with a reasonable number of press contacts, industry analysts, and customer prospects about Customer’s implementation and use of the Software. Otherwise, no press releases or other publicity will be issued without the prior written consent of both parties.
Independent Contractors. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. data.world may subcontract a Service, or any part of it, to subcontractors selected by data.world.
Notices. All notices required to be given under this Agreement will be given in writing and sent to the recipient party's address stated in the applicable Order, unless otherwise changed in writing. All notices will be given by certified or registered mail, overnight carrier, or by e-mail. Such notices will be deemed given on the date of receipt of delivery of said notice. Notices by e-mail sent to data.world shall be sent to legal@data.world and notices by mail sent to data.world shall be sent to data.world, c/o Capital Factory, 701 Brazos St., Suite 519, Austin, TX 78701. For Customer, the email and mailing address for notice shall be the addresses specified in the Order. Notices of termination or an indemnifiable claim must be clearly identifiable as “Legal Notice.”
Amendment; Order of Precedence. Except as expressly set forth in this Agreement, no amendment or waiver of any provision of this Agreement will be effective unless in writing and signed by Customer and data.world. To the extent of any conflict among the terms of the various documents, the base terms of this Agreement will prevail unless expressly stated otherwise. Additional or different terms in any purchase order or other communication from Customer are void.
No Waiver. No failure or delay in exercising any right hereunder will constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in effect.
Force Majeure. Neither party will be liable to the other for any delay or failure to perform its obligations under this Agreement (excluding payment obligations) if the delay or failure arises from any cause or causes beyond that party’s reasonable control.
Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, data.world may assign this Agreement in its entirety (including all Orders hereunder), without consent of the other party, to (i) its Affiliate, or (ii) its successor in interest in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity; provided, however, that neither (i) nor (ii) involves a direct competitor of the Customer. Any attempted assignment in breach of this Section will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Third-Party Beneficiaries. If ordered through a designated Reseller, Customer acknowledges and agrees that data.world and its Affiliates are third-party beneficiaries to this Agreement.
Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
Export Laws. As applicable, Customer shall comply fully with all relevant export laws and regulations of the United States and any other applicable jurisdiction to ensure that the Software, and any applicable Client-Side Module are not exported, directly or indirectly, in violation of applicable law. Customer shall not export the Software, any applicable Client-Side Module, the Services, the Documentation, or any data.world Confidential Information to any party or jurisdiction without the prior written consent of data.world and its licensors. Customer understands that the Arms Export Control Act (AECA), including its implementing International Traffic in Arms Regulations (ITAR), and the Export Administration Act (EAA), including its Export Administration Regulations (EAR), are some (but not all) of the laws and regulations that comprise the U.S. export laws and regulations, which apply to one or more components of the Software, and/or any applicable Client-Side Module. Customer further understands that the U.S. export laws and regulations include: (i) ITAR and EAR product/service/data-specific requirements; (ii) ITAR and EAR ultimate destination-specific requirements; (iii) ITAR and EAR end user-specific requirements; (iv) Foreign Corrupt Practices Act; and (v) anti-boycott laws and regulations. Customer will comply with all then-current applicable export laws and regulations of the U.S. Government (and other applicable U.S. laws and regulations) pertaining to the Software, and any applicable Client-Side Module (including any associated, computer software, media, services, technical data, and other information). Customer certifies that it will not, directly or indirectly, export (including any deemed export), nor re-export (including any deemed re-export) the Software, or any applicable Client-Side Module (including any associated computer software, media, services, technical data, and other information) in violation of applicable U.S. laws and regulations.
US Government Rights. The Software, all applicable Client-Side Modules, the Services, and the Documentation (including without limitation all APIs) are “commercial items”, developed exclusively at private expense, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the applicable acquisition regulations, including Federal Acquisition Regulation (“FAR”) 2.101 and FAR Part 12. If any of the Software, applicable Client-Side Modules, Services, or Documentation are being used on behalf of the U.S. Government or any agency or department thereof (the “U.S. Government”), the Software, all applicable Client-Side Modules, the Services, and the Documentation (including without limitation all APIs) are licensed hereunder (i) only as commercial items, and (ii) with only those rights as are granted to commercial end users pursuant to the terms and conditions of this Agreement. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement, as specified in FAR 12.212 (Computer Software) and 12.211 (Technical Data) of the FAR and its successors. If acquired by or on behalf of any agency of or within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation or technical data subject to the terms of this Agreement as specified in Department of Defense FAR Supplement (“DFARS”) 227.7202-3 and DFARS 227.7202-4 and its successors, and consistent with DFARS 227.7202. This section describing U.S. Government Rights, consistent with FAR 12.212 and DFARS 227.7202 is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the Software, all applicable Client-Side Modules, the Services, and the Documentation under this Agreement and in any subcontract under which this commercial computer software and commercial computer software documentation is acquired or licensed. If this Agreement fails to meet the U.S. Government’s minimum needs or is inconsistent with Federal procurement law, Customer agrees to promptly notify data.world.
