Software License Agreement (with services)
Date of Last Revision: Aug. 13, 2020
THIS SOFTWARE LICENSE AND SERVICES AGREEMENT AND ALL DOCUMENTS INCORPORATED BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”) IS A LEGAL CONTRACT BETWEEN YOU (“YOU” OR “CUSTOMER,” EITHER AN INDIVIDUAL OR THE ENTITY ON WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT) AND SPARKCOGNITION, INC. (“WE”, “US”, “SPARKCOGNITION”) WHICH GOVERNS YOUR ACCESS TO AND USE OF THE SC SOFTWARE (AS DEFINED BELOW) EITHER ON YOUR PREMISES (INCLUDING ON YOUR PROVIDER’S CLOUD PLATFORM) OR AS SC SAAS SERVICES (AS DEFINED BELOW) THROUGH SPARKCOGNITION’S PLATFORM. BY SELECTING THE “ACCEPT” OR “I AGREE” OPTION AND ACCESSING AND USING THE SC SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, YOU MUST SELECT “DECLINE” OR “CANCEL” AND YOU WILL NOT HAVE A LICENSE OR RIGHT TO ACCESS AND USE THE SC SOFTWARE OR THE SC SAAS SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE OF YOUR ACCEPTANCE OF THIS AGREEMENT (“EFFECTIVE DATE”). IF THIS AGREEMENT IS CONSIDERED TO BE AN OFFER BY SPARKCOGNITION, ACCEPTANCE IS EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN. CUSTOMER AND SPARKCOGNITION ARE REFERRED TO COLLECTIVELY IN THIS AGREEMENT AS THE “PARTIES” AND EACH INDIVIDUALLY AS A “PARTY.” For mutual consideration, receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The terms of this Agreement will apply to your access to and use of the SC Software, unless there is a separate signed agreement between Customer and SparkCognition, in which event such separate signed agreement will apply. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the SC Software or SC SaaS Services will have any effect on the rights, duties or obligations of the Parties under this Agreement, or otherwise modify this Agreement, regardless of any failure of SparkCognition to object to such terms, provisions, or conditions.
The use of the SC Software, SC SaaS Services and Maintenance and Support Services is subject to SparkCognition’s then-current Privacy Policy (a current copy is available at https://www.sparkcognition.com/privacy/).
SparkCognition may update or modify this Agreement from time to time, including any referenced policies. If a revision meaningfully reduces Customer’s rights, then SparkCognition will use reasonable efforts to notify Customer (for example, by sending an email to the billing contact, or posting a notice in Customer’s account). If SparkCognition modifies this Agreement during the License Term, then the modified version will be effective upon the start of Customer’s next Renewal Term; provided, however, that any Urgent Term will be effective immediately upon notice as of the “Date of Last Revision” noted at the top of this Agreement. An “Urgent Term” means a term that (a) is required by a third party, such as an infrastructure provider to SparkCognition or a third party providing functionality, (b) addresses new functionality, or (c) in the reasonable opinion of SparkCognition’s counsel, is required to comply with applicable law or might create legal liability for SparkCognition if omitted. If an authorized Customer representative certifies in writing within 30 days’ notice of the Urgent Term modification that the Urgent Term modification is material and adverse to Customer, then SparkCognition may elect in writing to (i) waive the Urgent Term modification for Customer, or (ii) provide Customer with 30 days to elect in writing whether to accept the Urgent Term modification despite the adversity or terminate this Agreement. In the event of such termination by Customer, SparkCognition will provide a pro-rata refund of any prepaid unused Fees paid by Customer before such termination.
Unless otherwise specified, all capitalized terms used in this Agreement have the meanings set forth on Exhibit A.
- LICENSE GRANT AND PROVISION OF SC SAAS SERVICES
- License Grant. If Customer orders SC Software licenses for installation on Customer’s premises (including for installation on Customer’s third party service provider’s cloud service), then subject to the terms and conditions of this Agreement, SparkCognition grants Customer a non-exclusive, limited, revocable, non-transferable and non-sublicenseable license to use the SC Software only: (a) during the relevant License Term, (b) internally for Customer’s own internal business purposes including, if applicable, to develop and use Models, and not for resale or license to third parties, (c) by the authorized number of Users, (d) subject to any applicable Usage Allowances, and (e) in accordance with any additional SC Software rights and limitations specified in the Order.
- SC SaaS Services. If Customer orders SC SaaS Services, then subject to the terms and conditions of this Agreement, SparkCognition will make available to Customer the SC SaaS Services on a non-exclusive, limited, revocable, non-transferable and non-sublicenseable basis only: (a) during the relevant License Term, (b) internally for Customer’s own internal purposes including, if applicable, to develop and use Models, and not for resale or license to third parties, (c) by the authorized number of Users, (d) subject to any applicable Usage Allowances, and (e) in accordance with the additional SC SaaS Services rights and limitations specified in the Order.
- APIs and SDKs. The SC Software and/or SC SaaS Services may include or require the use of certain SparkCognition or third party Application Programming Interfaces (“API”) and/or Software Development Kits (“SDK”). Notwithstanding Sections 1.1 and 1.2 above, the end user license agreements (“EULA”) that accompany such API’s and SDK’s, if any, will apply to Customer’s use of such API’s and SDK’s. If any such API or SDK are not accompanied by a EULA, then SparkCognition hereby grants to Customer a non-exclusive, limited, revocable, non-transferable and non-sublicenseable license to use such API or SDK solely for the purpose of exercising Customer’s rights granted for the SC Software and/or SC SaaS Services hereunder.
- Restrictions. Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) copy, modify or create derivative works of the SC Software or SC SaaS Services, except as necessary to develop Models as permitted under this Agreement, (b) publish, sublicense, sell, market or distribute the SC Software or SC SaaS Services; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the SC Software or SC SaaS Services; (d) use the SC Software or SC SaaS Services or associated documentation in violation of any applicable law, including export laws; (e) remove any proprietary notices from the SC Software, or SC SaaS Services, the Services, documentation or any other SparkCognition materials furnished or made available hereunder; (f) use or access the SC Software or SC SaaS Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the SC Software or SC SaaS Services; (g) make the SC Software or SC SaaS Services available to anyone other than Users; (h) sell, resell, rent or lease the SC Software or SC SaaS Services, including using on a service bureau or time sharing basis; (i) interfere with or disrupt the integrity or performance of the SC SaaS Services or any data contained therein; (j) attempt to gain unauthorized access to the SC Platform or its related data, systems or networks; (k) use the SC Software or SC SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (l) publish or disclose to third parties any evaluation of the SC Software or SC SaaS Services without SparkCognition’s prior written consent; (m) publish or disclose to third parties any data or information on Customer’s results from using the SC Software or SC SaaS Services, without SparkCognition’s prior written consent; (n) perform vulnerability, load or any other test of the SC Platform without SparkCognition’s prior written consent. Customer is responsible for compliance by each User with the terms of this Agreement.
- No Other Rights. Except as expressly set forth in this Agreement, no additional rights are granted to Customer. SparkCognition hereby reserves all rights not expressly granted to Customer under this Agreement.
- DELIVERY. SC Software licensed for installation on Customer’s premises (including for installation on Customer’s third party service provider’s cloud service) will be shipped FOB SparkCognition’s site or made available to Customer by FTP download or other electronic transfer or download method and will be deemed delivered to Customer upon the provision of a download link and accompanying password and/or ID. SC SaaS Services will be deemed delivered to Customer upon the activation of the SC SaaS Services at the commencement of the License Term. Notice of availability for download or access will include, without limitation, email notices to a Customer designated contact or other Customer representative. Where delivery is electronic, SparkCognition will not provide any media or hard copy documentation to Customer.
- SERVICES
- Maintenance and Support Services. SparkCognition will provide Maintenance and Support Services (a current copy is available at https://www.sparkcognition.com/maintenance-support/) for the SC Software and/or SC SaaS Services, as applicable (a) for the duration of the License Term, and (b) to the extent and for the time period that Customer pays the associated Fees without interruption. SparkCognition reserves the right, in its sole discretion, to modify, discontinue, add, adapt, or otherwise change its Maintenance and Support Guidelines. Maintenance and Support Services will terminate upon expiration or termination of the License Term or upon Customer’s failure to pay applicable Fees for such Maintenance and Support Services.
- Professional Services. SparkCognition will provide the Professional Services set forth in the applicable Statement of Work. Professional Services Fees associated with SOWs signed concurrently with a particular Order also may be listed in the Order itself. All SOWs will incorporate and be subject to the terms of this Agreement. Customer acknowledges that the provision of Professional Services by SparkCognition is dependent on Customer providing reasonable access to relevant resources, IT infrastructure, data and providing timely decisions and input in connection with those Professional Services
- PAYMENT
- Fees and Expenses. Customer will pay the applicable Fees specified in the Order in accordance with their terms and this Agreement. Customer will also reimburse SparkCognition for any expenses as specified in the Order or otherwise authorized by Customer in writing (including via email). Unless otherwise specified in the Order or invoice, all payments by Customer to SparkCognition under this Agreement are due and payable within 30 calendar days of the invoice date. All money amounts set forth herein are expressed in, and all payments to be made hereunder will be made in, United States dollars, unless otherwise specified by SparkCognition. All payments are non-refundable and all Fees are non-cancellable. Any terms and conditions of any purchase orders or acknowledgements delivered by Customer to SparkCognition other than an Order will not apply. Any such purchase order or similar document from Customer will be for billing reference only and, notwithstanding any terms and conditions set forth therein, such document will not modify or add provisions to this Agreement and will not take precedence over this Agreement in any manner.
- Past Due Invoices. If any payment is not made when due, interest will begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or 1.5% per month, accrued from the date due until paid in full. If any amount owed by Customer under this Agreement or any other agreement between the Parties is 10 days or more overdue, SparkCognition may, without limiting SparkCognition’s other rights and remedies, accelerate Customer’s unpaid Fee obligations under this Agreement and the other agreements so that all such obligations become immediately due and payable, and suspend any SC SaaS Services and Services to Customer until such amounts are paid in full.
- Taxes. All Fees are exclusive of any Taxes. Customer will pay to SparkCognition an amount equal to any Taxes arising from or relating to this Agreement including sales, service, use or value added taxes, which are paid by or are payable by SparkCognition. “Taxes” means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of SparkCognition. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to SparkCognition, then the sum payable to SparkCognition will be increased by the amount necessary so that SparkCognition receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.
- Right to Audit. If requested by SparkCognition, SparkCognition will have the right, not more than once every 12 months during the term of this Agreement and for 24 months after termination of the Agreement, to perform an audit at Customer’s facilities, during normal business hours, insofar as may be necessary or desirable, in SparkCognition’s judgment, to determine Customer’s compliance with its obligations under this Agreement. SparkCognition and SparkCognition’s independent auditors will have access to Customer’s books and records, and operations at reasonable times, with reasonable prior written notice and Customer agrees to cooperate in all respects necessary to enable SparkCognition and its independent auditors to carry out the intent and purposes of this Section. SparkCognition may notify Customer of any deficiencies in performance discovered in any such audit, which deficiencies will be promptly corrected by Customer. All information disclosed to such third party auditor or otherwise observed or learned by such third party auditor will be deemed Customer’s Confidential Information (defined below).
- DATA
- Customer Data. Customer is solely responsible for collecting and providing Customer Data to SparkCognition for any SC SaaS Services and Services, including all costs and liabilities associated with such Customer Data. Customer retains ownership of any Intellectual Property Rights that it holds in the Customer Data. When Customer or a User uploads, submits, stores, or sends Customer Data to SparkCognition in connection with the SC SaaS Services or Services, Customer hereby grants SparkCognition (and those third parties SparkCognition works with) a worldwide non-exclusive license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes SparkCognition makes so that Customer Data is better utilized), communicate, perform, display and distribute such Customer Data solely for purposes of providing the SC SaaS Services and Services to Customer including fulfilling any obligations hereunder in connection with generating Models. SparkCognition does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data provided to SparkCognition for provision of the SC SaaS Services and Services to Customer (including for use in the development of Models for Customer) for completeness, integrity, quality, accuracy or otherwise. Customer will be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data provided to SparkCognition (including for use in the development of Models for Customer). SparkCognition does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data.
- Anti-Virus. Customer will, and will ensure that its Users will, (a) deploy and maintain current up-to-date commercially available, and consistent with industry standards, anti-virus, anti-spam, anti-malware software on all information system components including personal computers, laptops, and servers, where applicable, used for the purpose of accessing and transmitting Customer Data to SparkCognition, (b) provide for regular scanning for viral infections and update virus signature files frequently, and (c) immediately inform SparkCognition if it becomes aware of the possibility of transmission of any such virus, spam or malware.
- WARRANTIES; DISCLAIMER
- SparkCognition Warranty. SparkCognition warrants that the SC Software and the SC SaaS Services will perform substantially in accordance with the applicable Documentation for a period of 60 days after delivery or after it is made available to Customer. In the event the SC Software or the SC SaaS Services does not conform to this warranty in any material respect, as Customer’s exclusive remedy and SparkCognition’s sole liability and obligation, SparkCognition will use commercially reasonable efforts to correct the SC Software or the SC SaaS Services, as applicable. SparkCognition warrants that it will perform the Professional Services in a professional manner and that any deliverables associated with the Professional Services will materially comply with the requirements of the applicable SOW for a period of 60 days after delivery. In the event the Professional Services or applicable deliverables do not conform to this warranty in any material respect, as Customer’s exclusive remedy and SparkCognition’s sole liability and obligation, SparkCognition will use commercially reasonable efforts to correct the Professional Services and applicable deliverables.
- User Responsibility. The SC Software and SC SaaS Services and/or any Models or results generated by their use must only be used by professionals trained in the industry in which they are used. Cognitive tools such as the SC Software and SC SaaS Services are not substitutes for independent professional judgment and testing of safety, accuracy, completeness and validity of results. Responsibility for accuracy and completeness of the data submitted rests solely with the user. SparkCognition will not be liable for results or actions suggested by the Models or results generated by the SC Software or SC SaaS Services or the decisions made by users based on those suggestions. Users of the SC Software and/or SC SaaS Services are responsible for establishing independent test and verification guidelines to test the reliability and accuracy of output of the SC Software and SC SaaS Services, including any Models, results and recommended actions.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SPARKCOGNITION DOES NOT WARRANT THAT THE SC SOFWARE, SC SAAS SERVICES, SERVICES OR MODELS WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE SC SOFTWARE, SC SAAS SERVICES, SERVICES OR MODELS WILL BE UNINTERRUPTED OR THAT THE SC SOFTWARE, SC SAAS SERVICES, SERVICES OR MODELS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE. FURTHER, SPARKCOGNITION DOES NOT WARRANT THAT ALL ERRORS IN THE SC SOFTWARE, SC SAAS SERVICES, SERVICES OR MODELS ARE CORRECTABLE OR WILL BE CORRECTED.
- INTELLECTUAL PROPERTY
- SparkCognition Ownership. As between the Parties and except for the limited express license granted to Customer under this Agreement, SparkCognition will retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the SC Software, SC SaaS Services,the Services, and the Models.
- Customer Ownership. As between the Parties and except for the limited express license granted to SparkCognition under this Agreement, Customer will retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to all Customer Data.
- General Skills. Notwithstanding anything to the contrary in this Agreement, SparkCognition will not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the SC SaaS Services or Services under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” will include, without limitation, information publicly known or that could reasonably have been acquired in similar work performed for another client, but does not include Customer Confidential Information.
- CONFIDENTIALITY. Recipient will maintain all of Discloser’s Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Recipient will not use Discloser’s Confidential Information except to carry out its rights and obligations under this Agreement. Recipient will not divulge Discloser’s Confidential Information or any information derived therefrom to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the information to exercise Recipient’s rights under or perform this Agreement, and who are subject to a contractual, professional or other obligation to keep such information confidential, with such obligation no less protective of Discloser than this Section 8. Each Party will be responsible for violation of this Section 8 by its Representatives. If Recipient suffers any unauthorized disclosure, loss of, or inability to account for Discloser’s Confidential Information, Recipient will promptly notify and cooperate with Discloser, and take such actions as may be necessary or reasonably requested by Discloser to minimize the damage. If Recipient is legally required to disclose Discloser’s Confidential Information, Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. Each Party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors, lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such Party by such persons and provided that such disclosures are made in confidence, (b) the Party’s outside accounting firm, (c) the Party’s outside legal counsel. Each Party may also disclose this Agreement in connection with any litigation or legal action concerning this Agreement, to the extent such disclosure is required or recommended upon advice of counsel, and/or (d) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser.
- TERM AND TERMINATION
- Term of Agreement. This Agreement will begin on the Effective Date and will remain in force until there are no Orders, License Terms or SOWs in effect for a period of six consecutive months, unless terminated earlier in accordance with the terms of this Agreement.
- License Term. The term of each License Term for the SC Software or SC SaaS Services granted to Customer hereunder will begin upon the License Term start date set forth in the applicable Order and will remain in force for the License Term, unless terminated earlier in accordance with the terms of this Agreement. The License Term will automatically renew without notice to Customer for one-year periods (each a “Renewal Term”), unless either Party gives the other Party written notice of its intent not to renew such License Term at least 60 days before the expiration of the then-current term. Each Renewal Term will be subject to SparkCognition’s then-current policies and pricing.
- SOW Term. The term of each SOW for Professional Services will begin upon the effective date set forth in the applicable SOW, or such other start date set forth in such SOW, and will remain in force until completion of the Professional Services under SOW, unless terminated earlier in accordance with the terms of this Agreement.
- Termination. Each Party will have the right to terminate this Agreement (including all Orders and SOWs) if the other Party breaches any term of this Agreement, an Order or SOW including nonpayment, and fails to cure such breach within 30 days (10 days in the case of non-payment) after written notice thereof. Either Party may terminate this Agreement (including all Orders and SOWs) immediately upon delivery of written notice if (a) the other Party makes an assignment for the benefit of creditors, or (b) the other Party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
- Effect of Termination. The termination or expiration of this Agreement (including an Order or SOW) for any reason will not affect either Party’s rights or obligations that expressly or by their nature continue and survive (including the payment terms and the provisions concerning ownership, confidentiality, limitation on liability, indemnity and the warranty disclaimers), and Customer will promptly pay to SparkCognition any and all unpaid amounts due under this Agreement. Upon the termination or expiration of this Agreement (including an Order or SOW), Customer will (a) within five days return or destroy, at SparkCognition’s direction, any and all SC Software and SparkCognition materials, and all copies thereof, and (b) upon SparkCognition’s request certify in writing to SparkCognition that all actions required by the preceding clause (a) has been satisfied. Further, both Parties will either return or destroy any and all Confidential Information of the other Party, and all copies thereof, at the direction of the owning Party and provide written proof of same upon the owning Party’s reasonable request. Except as otherwise set forth in this Agreement, termination of this Agreement by either Party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such Party at law or in equity.
- Remedies. The Parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (License Grant and Provision of SC SaaS Services), Section 7 (Intellectual Property) and Section 8 (Confidentiality) or any other provisions of this Agreement which may cause either Party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each Party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
- INDEMNIFICATION
- SparkCognition Obligations. SparkCognition will, at its own cost and expense, defend Customer and its Affiliates against any cause of action, suit or proceeding (each a “Claim”) made or brought against Customer or any of its Affiliates by a third party to the extent such Claim alleges that Customer’s permitted use of the SC Software or SC SaaS Services infringes or misappropriates any copyright, trade secret or any patent issued in the U.S., Canada or the European Union of a third party and will indemnify Customer for any damages finally awarded against Customer, or agreed upon by SparkCognition in settlement, and incidental costs reasonably incurred by Customer in connection with the Claim. If a Claim under this Section 10.1 is brought or threatened, or SparkCognition believes is likely to occur, SparkCognition may, at its option, (i) procure for Customer the right to use the SC Software or SC SaaS Services, or (b) replace the SC Software SC or SaaS Services with non-infringing products that are functionally equivalent in all material respects, or (c) if options (a) and/or (b) above cannot be accomplished despite SparkCognition’s commercially reasonable efforts, then SparkCognition may terminate this Agreement with respect to such SC Software or SC SaaS Services, as applicable, and upon return or cessation of use of the SC Software or SC SaaS Services, as applicable, issue a pro-rata refund or credit to Customer for any prepaid Fees corresponding to the remaining License Term of the SC Software or SC SaaS Services, as applicable, after the date of termination. SparkCognition will have no liability under this Agreement or otherwise to the extent a Claim is based upon (A) use of the SC Software in combination with software, hardware or technology that is not reasonably necessary to use the SC Software and not provided by or specified by SparkCognition, if infringement would have been avoided in the absence of the combination, (B) modifications to the SC Software not made by or for SparkCognition, if infringement would have been avoided by the absence of the modifications, (C) SparkCognition’s use of any Customer Data or any other Customer-provided material in accordance with this Agreement; (D) Customer’s use of the Services in violation of this Agreement; (E) SparkCognition’s compliance with a Customer-provided specification or instruction or (F) use of any version other than a current release of the SC Software, if infringement would have been avoided by use of a current release made available to Customer.
- Customer Obligations. Customer will, at its own cost and expense, defend SparkCognition and its Affiliates against any Claim made or brought against SparkCognition or any of its Affiliates by a third party, to the extent arising out of or attributable to (a) the provision of Customer Data to SparkCognition, (b) the use, storage, processing or display of Customer Data by the SC Software or SC SaaS Services as authorized by Customer hereunder, (c) any industrial or compliance decision or action taken by Customer based on the SC Software, SC SaaS Services, Services, and/or any Models or results generated by their use, (d) infringement of third party Intellectual Property Rights by the Customer Data or any other materials provided by Customer hereunder, and Customer will indemnify SparkCognition for any damages finally awarded against SparkCognition, or agreed upon by Customer in settlement, and incidental costs reasonably incurred by SparkCognition in connection with the Claim.
- Indemnity Process. The Party seeking to be indemnified will give prompt written notice to the other Party of the Claim against which it seeks to be indemnified and will provide the indemnifying Party, at the indemnifying Party’s expense, with the assistance reasonably necessary for the defense and settlement of the Claim. The failure by the indemnified Party to timely furnish to the indemnifying Party any notice required to be furnished under this Section 10 will not relieve the indemnifying Party of its obligations under this Section 10, except to the extent such failure materially and adversely prejudices the ability of the indemnifying Party to defend such Claim. The indemnifying Party will have sole control of the defense and settlement of any such Claim. The indemnifying Party will not be liable for any settlement of an action effected without its written consent (which consent will not be unreasonably withheld or delayed), nor will the indemnified Party settle any such action without the written consent of the indemnifying Party (which consent will not be unreasonably withheld or delayed). The indemnifying Party will have no right to settle any Claim without the indemnified Party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified Party of all liability. The indemnified Party may engage counsel of its choice at its own expense.
- LIMITATION ON LIABILITY
- Limitation on Liability. EXCEPT AS PROVIDED IN SECTION 11.3 BELOW AND FOR FEES DUE BUT UNPAID, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE FOREGOING APPLIES NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
- Exclusion of Consequential and Related Damages. EXCEPT AS PROVIDED IN SECTION 11.3 BELOW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
- Exclusions to Sections 11.1 and 11.2. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN SECTIONS 11.1 AND 11.2 ABOVE, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY BE LIMITED FOR (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (B) CUSTOMER’S BREACH OF THE LICENSE GRANT(S) OR RESTRICTIONS IN SECTION 1, OR (C) CLAIMS ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
- MISCELLANEOUS
- Governing Law and Dispute Resolution. The governing law, jurisdiction, and dispute resolution provisions for any controversy or dispute arising out of or relating to this Agreement depend on where the Customer is domiciled: (a) If Customer is domiciled in the United States, Canada or Mexico (“North America”): (i) the laws of the State of Texas govern all matters arising out of this Agreement, excluding rules as to choice and conflict of law, and (ii) each Party consents to the exclusive jurisdiction and venue of the federal and state courts of Texas and agree that any action, suit, proceeding or dispute relating to this Agreement will be brought only in the federal and state courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or Party to be enjoined is located. The Parties hereby exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods. EACH PARTY FURTHER AGREES THAT ANY ACTION, SUIT OR PROCEEDING RELATED TO THIS AGREEMENT WILL BE TRIED TO THE BENCH AND EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY SUCH ACTION; and (b) If Customer is domiciled outside of North America: (i) the laws of the State of New York govern all matters arising out of this Agreement, excluding rules as to choice and conflict of law, and (ii) all disputes arising out of or in connection with this Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of the arbitration will be New York City, New York. The language of the arbitration will be English. Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each Party retains the right to seek judicial assistance: (A) to compel arbitration; (B) to obtain interim measures of protection before or pending arbitration, (C) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (D) to enforce any decision of the arbitrator(s), including the final award. The arbitrator(s) will award to the prevailing Party, if any, as determined by the arbitrator(s) its reasonable attorneys’ fees and costs, including the costs of the arbitration. The Parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other Party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a Party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority. If any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, then the prevailing Party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this Section only, “prevailing Party” means the Party that prevails on a majority of causes of action in such dispute.
- Assignment. Customer will not have any right or ability to assign or transfer (whether by merger, operation of law or otherwise) this Agreement, in whole or in part, including any rights, obligations or benefits under this Agreement without the prior written consent of SparkCognition, (and any such attempt will be void), such consent not to be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. SparkCognition may assign or transfer its rights and delegate its obligations under this Agreement, without Customer’s consent, to an Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which this Agreement relates. Any attempted assignment or delegation in violation of the foregoing is void. This Agreement is binding upon the Parties and their successors and permitted assigns.
- Independent Contractor. The Parties are independent contractors. Nothing contained herein or done pursuant to this Agreement will constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever and neither Party will have the right to make any warranty or representation to such effect.
- Customer List. SparkCognition may include and use Customer’s name, trademarks, logos and designs on a list of customers and may refer to Customer as a user of the SC Software, SC SaaS Services and/or Services in its advertising, marketing, promotional and investor materials.
- S. Government Users. If Customer is an agency, department, or other entity of the United States Government (“U.S. Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the SC Software, manuals, or any technical specifications, or any related documentation of any kind, including technical data (“SC Software and documentation”), is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies. The SC Software and documentation is commercial computer software and commercial computer software documentation. The use of the SC Software and documentation is further restricted in accordance with the terms of this Agreement, or any modification thereto.
- Open Source Software. The SC Software includes certain “Open Source Software”. A list of the Open Source Software included in the SC Software, the applicable license terms, and how to obtain the Open Source Software will be provided to Customer upon written request. Any provisions in this Agreement which differ from any Open Source Software license are offered by SparkCognition alone and not by any other party. ALL OPEN SOURCE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND SPARKCOGNITION DISCLAIMS ALL WARRANTIES WITH REGARD TO OPEN SOURCE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL SPARKCOGNITION OR ITS LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE OPEN SOURCE SOFTWARE EVEN IF SPARKCOGNITION OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. THIS LIMITATION WILL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM SPARKCOGNITION’S OR ITS LICENSORS’ NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
- Absence of Third-Party Beneficiary Rights. No provision of this Agreement is intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto will be personal solely between the Parties hereto.
- Notices. Unless otherwise provided herein, any notice, request, or other communication will be given in writing under this Agreement and will be deemed to have been given by either Party to the other Party (a) upon the date of receipt, if hand delivered, (b) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other Party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (c) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery (two-three business days for international addresses), or (d) upon the date of electronic confirmation of receipt of a facsimile or email transmission. Notices to (i) SparkCognition will be sent to 4030 West Braker Lane, Building 5, Suite 500, Austin, Texas 78759 to the attention of: VP Legal Affairs, and (ii) Customer will be sent to Customer’s primary address and contact provided to SparkCognition in the Order, or at such other address as will be given by either Party to the other in writing.
- English Language. This Agreement is in the English language only, which language will be controlling in all respects. No translation, if any, of this Agreement into any other language for convenience or to meet local requirements will be of any force or effect in the interpretation of this Agreement or in determination of the interests of either Party hereto. Furthermore, all correspondence, notices, claims, suits and other communication between the Parties hereto will be written or conducted in English. It is the express wish of the Parties that this Agreement and/or any related documents have been drawn up in a language other than French. French translation: Il est de la volonté expresse des parties que le présent contrat et/ou tous les documents qui s’y rattachent soient rédigés dans une langue autre que le français.
- Local Laws; Compliance with Law. Customer represents and warrants that, to the best of Customer’s knowledge, the provisions of this Agreement, and the rights and obligations of the Parties hereunder, are enforceable under the laws of the countries within which the SC Software, SC SaaS Services and Services will be used. Customer and Users will use the SC Software, SC SaaS Services, Services and Models in compliance with the requirements of all applicable law. Without limiting the foregoing, Customer acknowledges that the SC Software, SC SaaS Services, Services and related technical data received from SparkCognition may be subject to U.S. export and import controls, and in using the SC Software, SC SaaS Services, Services and related technical data Customer will comply with all applicable laws, and agrees to commit no act which, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls imposed by the U.S. Export Administration Act of 1979 as amended. Additionally, Customer agrees that the SC Software, SC SaaS Services, Services and related technical data are not to be used, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor used for nuclear activities, chemical/biological weapons, or missile projects unless authorized by the U.S. Government.
- Entire Agreement: This Agreement, the Order, the addenda, and exhibits thereto are incorporated herein and constitute the entire agreement of the Parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral. The term “including” and/or “includes” and the like means “including without limitation”. Amendments: No addition to or change in the terms of this Agreement will be effective or binding on either of the Parties unless reduced to writing and signed by a duly authorized representative of each Party. Waiver: An individual waiver of a breach of any provision of this Agreement requires the written express consent of the Party whose rights are being waived and such waiver will not constitute a subsequent waiver of any other breach of that provision or any other provision, condition or requirement. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either Party to enforce each and every such provision thereafter. Severability: If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. The Parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision. Headings and Captions; Construction: Section headings are used for convenience only and will in no way affect the construction or interpretation of this Agreement. This Agreement has been negotiated by the respective Parties hereto and their attorneys and the language hereof will not be construed for or against either Party. Counterparts: This Agreement may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the Parties. Each signed counterpart, including a signed counterpart reproduced by reliable means (such as facsimile and electronic signature), will be considered as legally effective as an original signature. Order of Precedence: In the event of conflict, the following order of precedence will apply unless the Parties specify in the Order that a particular provision of the Order is expressly intended to supersede a particular provision of this Agreement: (a) the terms and conditions of this Agreement, (b) the Order, and (c) the Maintenance and Support Guidelines.
EXHIBIT A – DEFINITIONS
“Affiliate” means any entity (a) controlled, directly or indirectly, by, under common control with, or controlling a Party to this Agreement, and specifically includes without limitation, subsidiaries, partnerships, joint ventures, and other entities or operations for which the Party has operational or management control, where “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, (b) in any event and without limitation of the previous sentence, owning the majority of the voting stock, shares, securities or assets of another entity, but in each case only for so long as such ownership or control shall continue.
“Confidential Information” means and includes, without limitation, any software, data, technical, business, financial, operational, customer, vendor or other information disclosed or provided by one Party or any of its Representatives to the other Party or any of its Representatives, whether before or after the Effective Date, whether in writing, orally, visually (or other non-tangible format) or any other means. SC Software (in source code, object code or any other format) and SC SaaS Services and any documentation, release notes, collateral materials, operating instructions and information related to system performance provided by SparkCognition will be considered SparkCognition Confidential Information. Customer Data will be considered Customer Confidential Information. Notwithstanding the foregoing, the term “Confidential Information” will not, for purposes of this Agreement, include information that: (a) was or becomes available to the receiving Party (“Recipient”) on a nonconfidential basis from a source other than the other Party (“Discloser”) or its Representatives; provided that such source is not bound by any confidentiality agreement with, or other contractual, legal or fiduciary obligation of secrecy to Discloser; (b) at the time of disclosure or thereafter is or becomes available to and widely known by the public as to be reasonably regarded as public information, other than as a result of disclosure by Recipient or any of its Representatives in breach of this Agreement; (c) is developed by Recipient independently of any disclosure hereunder or reference to Discloser’s Confidential Information, as evidenced by Recipient’s records, and without violating any of Recipient’s obligations under this Agreement; or (d) is disclosed by Recipient with Discloser’s prior written express approval.
“Customer Data” means any information, data, data sets, text or other Customer content used by Customer to develop Models, or supplied by Customer or a User to SparkCognition in connection with SC SaaS Services or Services.
“Fees” means the amounts specified in the Order for the applicable SC Software, SC SaaS Services and Services as payable, and any other fees due and payable under or in connection with this Agreement.
“Intellectual Property Rights” means all patents, copyrights, mask work rights, trade secrets, trademarks, and moral rights, whether or not registered, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.
“License Term” means the subscription period of time specified in the Order during which the SC Software is licensed to Customer or the SC SaaS Services will be provided to Customer, as applicable.
“Maintenance and Support Services” means the maintenance and support services for the SC Software and/or SC SaaS Services, as applicable, provided by SparkCognition to Customer as set forth in SparkCognition’s then-current “Maintenance and Support Guidelines” (a current copy is available at https://www.sparkcognition.com/maintenance-support/).
“Models” means any and all predictive models developed by processing Customer Data through the SC Software or SC SaaS Services.
“Order” means one or more SparkCognition order forms executed by the Parties for the license and purchase of SC Software, SC SaaS Services and/or Services and that reference this Agreement.
“Professional Services” means those professional services to be performed by SparkCognition for Customer in connection with the SC Software and/or SC SaaS Services, including any work product or deliverables, as more fully described in one or more Statements of Work.
“Representatives” means, with respect to a Party, such Party’s Affiliates, and its and their employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.
“SC SaaS Services” means the SC Software provided and made available as software-as-a-service that is accessible through the SC Platform.
“SC Platform” means SparkCognition’s proprietary technology platform that powers the SC SaaS Services.
“SC Software” means SparkCognition’s proprietary software product specified in the Order, in object code form, and related user documentation (“Documentation”), owned, developed or licensed by SparkCognition, and delivered or made available to Customer by SparkCognition under this Agreement, including any Updates and Upgrades (as defined in Maintenance and Support Guidelines) thereto provided or made available to Customer by SparkCognition. The SC Software includes any SparkCognition or third party Application Programming Interfaces (“API”) and/or Software Development Kits (“SDK”) provided or made available by SparkCognition to enable or support Customer’s licensed use of the SC Software.
“Statement of Work” or “SOW” means, if applicable, one or more statements of work signed by the Parties from time to time referencing this Agreement, that describe the Professional Services that SparkCognition may perform for Customer.
“User(s)” means the individuals authorized by Customer to access and use the SC Software and/or the SC SaaS Services at any one time through the Customer account under this Agreement, and for whom Customer has issued or approved access credentials. Subject to the specific SC Software and/or SC SaaS Services, Customer may identify certain Users who will have specific roles or administrative, security and supervisory capacities with respect to the SC Software and/or SC SaaS Services made available to Customer under this Agreement.
“Usage Allowance” means any usage limits (including the number of users, end user node limits, and server limits), quantities or other parameters specified the Order with respect to Customer’s licensed use of the SC Software or access to the SC SaaS Services.