1. OVERVIEW
DT360 provides a suite of products designed to allow users to understand and enhance experiences for customers, employees, fans, and stakeholders, seamlessly translating insights into action. This DT360 Terms and conditions (“Terms and Conditions”) and the applicable Contract Letter (“DT360 Software Services Agreement”) (collectively, the “Agreement”) govern Customer’s use of the DT360 products. If the parties have executed a data processing addendum or any other addendum, that addendum is incorporated into the Letter by reference and forms part of the Agreement. Capitalized terms used but not defined herein are defined in the specific Contract Letter (“DT360 Software Services Agreement”) agreed & signed between the Company and the Customer.
2. SERVICES AND SUPPORT
2.1 Subject to the terms of this Agreement, Company will provide Customer with the services described on the Statement of Work (the “Services”) annexed as a reference in the Letter.
2.2 Subject to the terms of this Agreement, Company will provide Customer with reasonable technical support services in accordance with the Support Terms (the “Support”) annexed as a reference in the Letter.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company in writing); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of any third party (other than integrations approved herein); or (iv) remove any proprietary notices or labels from any Software or other item provided to Customer hereunder. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
3.2 Customer represents, covenants and warrants that Customer will use the Services and any Software only in compliance with this Agreement, Company’s standard published policies then in effect and provided to Customer in writing, and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services or any Software, Company may do so and may prohibit any use of the Services or any Software in violation of this Agreement.
3.3 Customer must register an administrative username and password for Customer’s account with Company. Company reserves the right to refuse registration of user names, or cancel passwords, it deems inappropriate or in conflict with any other account.
3.4 Customer shall be responsible for obtaining and maintaining, at its sole expense, any equipment and ancillary services needed to connect to, access or otherwise use the Services or any Software, including, without limitation, modems, hardware, servers, software, operating systems, networks, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for: (i) maintaining the security of the Equipment; (ii) maintaining Customer’s account, passwords (including, but not limited to, administrative and user passwords) and files; and (iii) all uses of Customer’s account and the Equipment with or without Customer’s knowledge or consent.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services and any Software. Proprietary Information of Customer includes non-public data provided by Customer, directly or indirectly, to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information of the Disclosing Party; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the limitations set forth in this Section 3 shall expire after five (5) years following the disclosure thereof and shall not apply to any information that the Receiving Party can document: (a) is or becomes generally available to the public without breach of this Agreement by the Receiving Party; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (i) the Services, any Software and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed by Company in connection with the Services, any Software or the Support and (iii) all intellectual property rights related to any of the foregoing.
4.3 Notwithstanding anything herein to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, the Software and the systems and technologies related thereto (including, without limitation, information concerning Customer Data and data derived therefrom). Company will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in the aggregate or in other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. PAYMENT OF FEES
5.1 In consideration for the Services, Customer will pay Company all applicable fees described in the Statement of Work in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity (as specified in the Statement of Work) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the undisputed additional fees in the manner provided herein.
5.2 Company shall submit invoices in accordance with the Statement of Work. Full payment for amounts invoiced in any given month must be received by Company thirty (30) days after the mailing date or date of electronic delivery of the invoice. As of sixty (60) days from the invoice due date, unpaid amounts are subject to a finance charge on any outstanding balance equal to 1.5% per month or the maximum percentage permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of the Services. Customer shall be responsible for all taxes associated with the Services other than U.S. taxes based on Company’s net income.
6. TERM, TERMINATION AND SURVIVAL
6.1 The term of this Agreement will commence on the Effective Date of the Letter entered into between the parties and will continue until all the Services and the Support hereunder expire or until terminated in accordance with this Agreement, whichever happens first.
6.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment after sixty (60) days), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within twenty (20) days after notice thereof from the non-breaching party. To the extent Customer has not already paid in full for the Services, Customer will pay in full for all Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. After such thirty (30) day period, Company may, but is not obligated to, delete stored Customer Data.
6.3 All sections of this Agreement which by their nature should survive termination or expiration of this Agreement, and will survive such termination or expiration, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnification obligations, limitations of liability and choice of law provisions.
7. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, COMPANY DOES NOT WARRANT THAT THE SERVICES, SOFTWARE OR SUPPORT WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, SOFTWARE OR SUPPORT. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, SOFTWARE AND SUPPORT ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ALL IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8. INDEMNITY
8.1 Customer shall indemnify and hold harmless Company, its affiliates and their respective officers, directors, managers, employees and agents, from and against any and all damages, losses, liabilities, settlements, expenses, (including, without limitation, attorneys’ fees) and other costs (whether absolute, accrued, conditional or otherwise and whether or not resulting from third party claims) (collectively, “Losses”) incurred in connection with any claim, action or proceeding that arises, directly or indirectly, from (i) any violation or alleged violation of this Agreement by Customer or (ii) Customer’s use of the Services, Software or Support in violation of this Agreement.
8.2 Company shall indemnify and hold harmless Customer from any and all Losses owing to third parties resulting from the infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret; provided, however, that Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and settlement thereof; and provided, further, that Company will not be responsible for any settlement it does not approve in writing. Notwithstanding anything herein to the contrary, the foregoing obligations do not apply with respect to portions or components of the Services: (i) not supplied by Company; (ii) made in whole or in part in accordance with Customer specifications; (iii) modified after delivery by Company; (iv) combined with other products, processes or materials where the alleged infringement relates to such combination; (v) where Customer continues to engage in such infringing (or alleged infringing) activity after being notified thereof or after being informed of modifications that would avoid such infringement (or alleged infringement); or (vi) where Customer’s use of the Services are not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense: (a) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (b) obtain for Customer a license to continue using the Services; or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING, BUT NOT LIMITED TO, ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), AFFILIATES, OFFICERS, DIRECTORS, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR ANY TERMS AND CONDITIONS RELATED HERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY.
10. COOPERATION; CUSTOMER DELAYS
Subject to the terms and conditions of this Agreement, Customer shall provide to Company in a timely manner all documents, materials and information in Customer’s possession or control necessary for Company to perform the Services. Company shall not be liable to Customer nor be deemed to have breached this Agreement for errors, delays or other consequences arising from Customer’s failure to timely provide documents, materials or information or to otherwise cooperate with Company in order for Company to timely and properly perform its obligations hereunder. Customer will pay all non-cancelable costs and expenses incurred by Company due to any such delay.
11. FORCE MAJEURE
In the event either party shall be delayed or hindered in or prevented from the performance of any act required hereunder by reasons of strike, lockouts, labor troubles, inability to procure materials or services, failure of power or restrictive government or judicial orders, or decrees, riots, insurrection, war, acts of God, inclement weather or other reason or cause beyond that party’s control, then performance of such act (except for the payment of money owed) shall be excused for the period of such delay.
12. MARKETING AND USE OF LOGO
Company shall have the right to disclose the existence and relationship with the Customer and its logos in any brochures, marketing materials, Company’s websites or other document required by Company. Company shall have the right to use the Customer’s logo on its website, provided use of the logo is limited to statements of facts. Customer shall after 2 months of the Services (a) provide testimonials for the Company which will be featured on Company’s website (b) allow Company to use this relationship as a case study on its websites. These are intended to provide information from other’s experiences with our products/services. Except as expressly stated above, neither Party will use the name or logo of the other Party or its employees or representatives in any advertisement, press release, or other publicity without prior written approval of the other Party. Company acknowledges and agrees that it may not use the trade name, logos, trademarks, service marks, trade dress or other intellectual property of the Customer entities, or any of their respective sponsors or all of their respective affiliates, subsidiaries, successors and assigns, in any manner or in experience citations without the prior written consent.
13. MISCELLANEOUS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. This Agreement (including all of the references) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers of, and modifications to, this Agreement must be in a writing signed by both parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Customer irrevocably submits to the jurisdiction of any state or federal court of competent jurisdiction in Santa Clara County, California in any action, suit or proceeding of any kind against it which arises out of or by reason of this Agreement.