DATASIFT PROFESSIONAL SERVICES AGREEMENT
Last modified: April 10th, 2015
1. Your Relationship with DataSift.
The sale and performance of Professional Services (defined below) hereunder is subject to the terms of this Professional Services Agreement (the "Agreement") between you (hereinafter "you" or "Customer") and Datasift, Inc. and its affiliates (hereinafter "DataSift"). DataSift's sale and performance of Professional Services under this Agreement shall be solely for Customer's own internal use and not for resale.
"Deliverables" means the tangible and intangible materials, including reports, studies, base cases, drawings, findings, manuals, procedures and recommendations prepared by DataSift or its suppliers, licensors or subcontractors in the course of performing the Professional Services.
"Materials" means all content and other items included with or as part of the Professional Services, Software or Deliverables.
"Professional Services" means the services performed by DataSift as described in one or more Statements of Work.
"Software" means any software, library, utility, tool, or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by DataSift to you in connection with the Professional Services. Software includes software locally installed on your systems and software accessed by you through the Internet or other remote means (such as websites, portals, the DataSift Platform, and cloud-based solutions).
"Statements of Work" are separately signed mutually agreed upon documents that outline the scope of the Professional Services, time period for service delivery (including any milestone requirements), requisite service steps, and payment terms.
"Third-Party Products" means any non-DataSift-branded products, software or services.
C. Additional Agreements.
This Agreement together with any accompanying Statements of Work, forms a legally binding contract between you and DataSift in relation to your purchase and DataSift's performance of Professional Services. Each Statement of Work will be interpreted as a single agreement, independent of any other Statement of Work, so that all of the provisions are given as full effect as possible. In the event of a conflict between these agreements, the terms of these documents will be interpreted in the following order of precedence: (1) Statement of Work; (2) this Agreement.
I. Payment Terms. Unless otherwise agreed to by DataSift, payment of invoices must be received by prior to commencement of the Professional Services. Customer will pay DataSift fees for the Professional Services calculated using the rates set forth in the Statement of Work within 30 days after receiving invoice(s) for such fees. Customer (1) will reimburse DataSift for reasonable, actual travel, meals, lodging, and other out-of-pocket expenses incurred by DataSift in connection with the Professional Services, and (2) will pay or reimburse DataSift for all taxes, however designated or levied, on the Professional Services or Deliverables provided by DataSift hereunder. Additional charges may apply if Customer requests Professional Services that are performed outside of contracted hours or are beyond the normal coverage for the particular Service, such as customized invoicing, consolidated invoicing and statements.
II. Suspension and Termination. DataSift reserves the right to suspend or terminate any or all Professional Services until DataSift's receipt of all overdue amounts. DataSift shall have no liability to Customer for any such suspension or termination of Professional Services. DataSift further reserves the right to seek collection of all overdue amounts (including by referral to third-party collectors), plus all reasonable legal fees (including reasonable attorney’s fees) and costs associated with such collection, and Customer agrees to pay the same.
III. Taxes. Unless otherwise expressly stated, any fees charged to Customer do not include Taxes (as defined below). Customer is required to pay any and all Taxes associated with the fees charged by DataSift (“Transaction Taxes”), regardless of how or upon whom they are imposed on. These Transaction Taxes exclude income taxes but may include, but are not limited to, local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value added taxes, consumption taxes, Goods and Services taxes, GST/HST, excise, sales, use or similar taxes and any withholding taxes (together “Taxes”). All amounts invoiced pursuant to this Agreement are payable in full and without reduction for Taxes. If DataSift has a legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides DataSift with a valid tax exemption certificate authorized by the appropriate taxing authority. We are registered for VAT in the United Kingdom with number 925 4697 90. If any deduction or withholding is required by law, you will notify us and you will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required. Additionally, you will provide us with documentation showing that the withheld and deducted amounts have been paid to the relevant taxing authority.
IV. Prices. The prices charged for Software and Professional Services purchased under this Agreement shall be the amounts set forth in the Statement of Work.
2. Scope of this Agreement.
This Agreement authorizes you to purchase Professional Services from DataSift in accordance with one or more Statements of Work that explicitly incorporate this Professional Services Agreement.
In connection with this Agreement, each party may have access to or be exposed to information of the other party that is not generally known to the public, such as Software, Materials, product plans, pricing, marketing and sales information, customer lists, "know-how," or trade secrets, which may be designated as confidential or which, under the circumstances surrounding disclosure, should be treated as confidential (collectively, "Confidential Information"). Confidential Information may not be shared with third parties unless such disclosure is to the receiving party's personnel, including employees, agents and subcontractors, on a "need-to-know" basis in connection with this Agreement, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party's Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not apply to information that (1) was known by one party prior to its receipt from the other or is or becomes public knowledge through no fault of the recipient; or (2) is rightfully received by the recipient from a third party without a duty of confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient shall provide advance notice to other party before making such a disclosure. The obligations with respect to Confidential Information shall continue for two years from the date of disclosure.
4. Term; Termination.
A. Term of this Agreement.
This Agreement shall be effective from the Effective Date and shall continue until it is terminated as set forth below (the “Term”).
Either party may terminate an individual Statement of Work hereunder if the other party commits a material breach of such agreement and the breach is not cured within 90 days of receipt of written notice from the injured party. DataSift may terminate this Agreement immediately, if (1) you fail to make any payment when due; (2) you are acquired by or merge with a competitor of DataSift; (3) you declare bankruptcy or are adjudicated bankrupt; or (4) a receiver or trustee is appointed for you or substantially all of your assets. Either party may terminate this agreement with (30) days written notice provided as set forth in Section 9(N). Upon termination of this Agreement, all rights and obligations of the parties under this Agreement and any accompanying Statements of Work will automatically terminate except for rights of action accruing prior to termination, payment obligations accruing pursuant to any Statements of Work, and any obligations that expressly or by implication are intended to survive termination.
5. Proprietary Rights.
You irrevocably acknowledge that, subject to the license granted herein or any separate license agreement referenced in Section 8 below, you have no ownership interest in the Software, the Materials, the methods by which the Professional Services are performed or the processes that make up the Professional Services (the “DataSift IP”). DataSift owns all right, title and interest in the DataSift IP, subject to any limitations associated with the intellectual property rights of third parties. DataSift reserves all rights not specifically granted herein.
Subject to payment in full for the applicable Professional Services, DataSift grants you a non-exclusive, non-transferable, royalty-free right to use the Deliverables solely in the country or countries in which you do business, solely for your internal use, and solely as necessary for you to enjoy the benefit of the Professional Services as stated in the applicable Statements of Work. DataSift and its applicable suppliers or licensors will retain exclusive ownership of all Deliverables, and will own all intellectual property rights, title and interest in any ideas, concepts, know-how, documentation and techniques associated with such Deliverables.
7. Suspension or Modification of Software or Professional Services.
DataSift may suspend, terminate, withdraw or discontinue all or part of the Professional Services or your access or one or more users' access to the Software upon receipt of a subpoena or law-enforcement request, or when DataSift believes, in its sole discretion, that you (or your users) have breached any term of this Agreement or an applicable Statement of Work or are involved in any fraudulent, misleading or illegal activities.
A. Accompanying License.
Software and Materials may be provided subject to a separate software license agreement, product guides, operating manuals or other documentation included with the software or presented to you during the installation or use of the Software. You agree to be bound by such license agreements.
B. Software License from DataSift.
If no license terms accompany the Software, then subject to your compliance with the terms set forth in this Agreement, DataSift hereby grants you a personal, nonexclusive license to access and use such Software only during the term of the Professional Services and solely as necessary for you to enjoy the benefit of the Professional Services as stated in the applicable Statement of Work.
I. Restrictions. You may not copy, modify or create a derivative work, collective work or compilation of the Software, and may not reverse engineer, decompile or otherwise attempt to extract the code of the Software or any part thereof. You may not license, sell, assign, sublicense or otherwise transfer or encumber the Software; may not use the Software in your own delivery of managed-services to third-parties or in a service bureau arrangement; and may not use the Software in excess of the authorized number of licensed seats for concurrent users, sites or other criteria specified in the applicable Statements of Work. In addition, Customer may not access the Software or monitor its availability, performance or functionality, or for any other benchmarking or competitive purpose. You are further prohibited from (1) attempting to use or gain unauthorized access to DataSift’s networks or equipment; (2) permitting other individuals or entities to use the Software or copy the Software or Professional Services; (3) attempting to probe, scan or test the vulnerability of Software or a system, account or network of DataSift or any of its customers or suppliers; (4) interfering or attempting to interfere with service to any user, host or network; (5) transmitting unsolicited bulk or commercial messages; (6) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Software (except for tools with safety and security functions); or (7) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any DataSift facilities used to deliver the Professional Services.
II. Audit. You hereby grant DataSift, or an agent designated by DataSift, the right to perform an audit of your use of the Software during normal business hours; you agree to cooperate with DataSift in such audit; and you agree to provide DataSift with all records reasonably related to your use of the Software. The audit will be limited to verification of your compliance with the software licensing terms of this Agreement.
9. Additional Terms.
A. Limited Warranty.
DATASIFT WARRANTS THAT ITS SERVICES SHALL BE PERFORMED BY QUALIFIED PERSONNEL IN A MANNER CONSISTENT WITH GOOD PRACTICE IN THE INFORMATION TECHNOLOGY SERVICES INDUSTRY. IF DATASIFT BREACHES THIS WARRANTY, IT SHALL SUPPLY SERVICES TO CORRECT OR REPLACE THE WORK AT NO CHARGE. THE REMEDY SET FORTH IN THIS SECTION IS CUSTOMER'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY.
DATASIFT WARRANTS THAT IT HAS THE RIGHT TO GRANT THE LICENSES TO THE SOFTWARE LICENSED IN SECTION 8 ABOVE, AND SUCH SOFTWARE WILL SUBSTANTIALLY CONFORM TO THE FUNCTIONAL SPECIFICATIONS AND CURRENT DOCUMENTATION PROVIDED BY DATASIFT. THIS WARRANTY DOES NOT COVER SERVICE NOT PERFORMED OR AUTHORIZED BY DATASIFT (INCLUDING INSTALLATION OR DE-INSTALLATION), USAGE NOT IN ACCORDANCE WITH SOFTWARE INSTRUCTIONS, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE SOFTWARE OR SERVICES.
EXCEPT AS EXPRESSLY STATED IN THE THIS SECTION 9(A), DATASIFT, (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS SUPPLIERS (COLLECTIVELY, THE "DATASIFT PARTIES") MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE SOFTWARE OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THIRD-PARTY PRODUCTS; (3) RELATING TO THE PERFORMANCE OF SOFTWARE OR DATASIFT'S PERFORMANCE OF THE SERVICES OR WHETHER THE SOFTWARE OR SERVICES ARE SUITABLE FOR HIGH-RISK ACTIVITIES; OR (4) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOFTWARE OR SERVICES OR THE RESULTS OF ANY RECOMMENDATION BY DATASIFT.
B. Limitation of Liability.
TO THE EXTENT PERMISSIBLE BY LAW, DATASIFT WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE OR SERVICES PROVIDED HEREUNDER. EXCEPT FOR YOUR BREACH OF SECTION 1.D.I. OR SECTION 8, OR ANY CLAIM BROUGHT PURSUANT TO SECTION 9(C), NEITHER PARTY SHALL HAVE LIABILITY FOR THE FOLLOWING: (1) LOSS OF REVENUE, INCOME, PROFIT OR SAVINGS; (2) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK OR THE RECOVERY OF SUCH; (3) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; (4) BUSINESS INTERRUPTION OR DOWNTIME; OR (5) DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE.
IN NO CIRCUMSTANCES SHALL DATASIFT'S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO DATASIFT UNDER THE APPLICABLE STATEMENT OF WORK.
THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR DATASIFT'S SALE OF SOFTWARE OR SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
DataSift shall defend and indemnify you against any third-party claim or action that Software, Professional Services or Deliverables (excluding Third-Party Products and open source software) prepared or produced by DataSift and delivered pursuant to this Agreement infringe or misappropriate that third party's U.S. patent, copyright, trade secret, or other intellectual property rights ("Indemnified Claims"). In addition, if DataSift receives prompt notice of an Indemnified Claim that, in DataSift's reasonable opinion, is likely to result in an adverse ruling, then DataSift shall, at its option, (1) obtain a right for you to continue using such Software, Deliverables or allow DataSift to continue performing the Professional Services; (2) modify such Software, Professional Services or Deliverables to make them non-infringing; (3) replace such Software, Professional Services or Deliverables with a non-infringing equivalent; or (4) refund any pre-paid fees for the allegedly infringing Professional Services that have not been performed or provide a reasonable depreciated or pro rata refund for the allegedly infringing Product, Deliverables or Software. Notwithstanding the foregoing, DataSift shall have no obligation under this Section for any claim resulting or arising from (1) modifications of the Software, Professional Services, or Deliverables that were not performed by or on behalf of DataSift; (2) the combination, operation, or use of the Software, Professional Services or Deliverables in connection with a Third- Party Product (the combination of which causes the claimed infringement); or (3) DataSift's compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. DataSift's duty to indemnify and defend under this Section 9.C. is contingent upon: (1) DataSift receiving prompt written notice an Indemnified Claim, (2) DataSift having the right to solely control the defense and resolution of such Indemnified Claim, and (3) your cooperation with DataSift in the defense and resolution of such Indemnified Claim. This Section 9.C. states Customer's exclusive remedies for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate DataSift to provide any greater indemnity to Customer.
You shall defend and indemnify DataSift against any third-party claim or action arising out of (1) your failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with technology or data provided by you, or associated with software or other components directed or requested by you to be installed or integrated as part of the Software, Professional Services or Deliverables; (2) your breach of this Agreement; (3) any inaccurate representation regarding the existence of an export license or any allegation made against DataSift due to your violation or alleged violation of applicable export laws, regulations, or orders; or (4) your providing of (or providing access to) Excluded Data (defined below) to DataSift.
Each party shall defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party's gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
D. Independent Contractor Relationship; Assignment; Subcontracting.
The parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between DataSift and Customer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. DataSift has the right to assign, subcontract or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that DataSift shall remain responsible for the performance of Professional Services under this Agreement. Otherwise, neither party may assign this Agreement, in whole or in part, without the permission of the other.
E. Force Majeure.
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, cyber warfare, including, but not limited to, Internet-based conflict and attacks on information systems designed to or resulting in the disabling of websites and networks, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure"). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party's time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Statement of Work by giving written notice to the delayed party.
F. Export Compliance.
You acknowledge that the Materials, Software, Professional Services and Deliverables provided under this Agreement, which may include technology and encryption, are subject to the customs and export control laws and regulations of the United States ("U.S."), may be rendered or performed either in the U.S., in countries outside the U.S., or outside of the borders of the country in which you are located, and may also be subject to the customs and export laws and regulations of the country in which the Materials, Software, Professional Services or Deliverables are rendered or received. You agree to abide by those laws and regulations. You further represent that any software provided by you and used as part of the Software or Professional Services contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. If you cannot make the preceding representation, you agree to provide DataSift with all of the information needed for DataSift to obtain export licenses from the U.S. Government or any other applicable national government and to provide DataSift with such additional assistance as may be necessary to obtain such licenses. Notwithstanding the foregoing, you are solely responsible for obtaining any necessary licenses relating to the export of software. DataSift also may require export certifications from you for software. DataSift's acceptance of any order for Software or Professional Services is contingent upon the issuance of any applicable export license required by the U.S. Government or any other applicable national government; DataSift is not liable for delays or failure to deliver Software or Professional Services resulting from your failure to obtain such license or to provide such certification. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying party's violation or alleged violation of the applicable export laws, regulations or orders. Except as otherwise agreed to by DataSift in a Statement of Work, the Software and Professional Services provided under this Agreement are not designed for the processing or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Customer's internal policies or practices or by law (collectively referred to as "Excluded Data"). Customer is solely responsible for reviewing its data that will be provided to DataSift (or to which DataSift will have access) to ensure that it does not contain Excluded Data.
G. Entire Agreement; Severability.
This Agreement, together with any Statement of Work, is the entire agreement between you and DataSift with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements between you and DataSift. No amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
H. Governing Law.
This Agreement, any related Statement of Work, and ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND DATASIFT, including their affiliates, contractors and agents, and each of their respective employees, directors and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement) any related purchase (a "Dispute") shall be governed by the laws of the State of California, without regard to conflicts of law. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
The parties agree that any Dispute shall be brought exclusively in the state or federal courts located in San Francisco County, California. Customer and DataSift agree to submit to the personal jurisdiction of the state and federal courts located within San Francisco County, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
J. Bench Trial.
The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
K. No Class Actions.
NEITHER CUSTOMER NOR DATASIFT SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
L. Limitation Period.
NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
M. Dispute Resolution.
Customer and DataSift will attempt to resolve any Dispute through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mediator agreed to by the parties, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a state or federal court in San Francisco County a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitations period, or preserve a superior position with respect to other creditors, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. In the event the parties are unable to resolve the Dispute within 30 days of notice of the Dispute to the other party, the parties shall be free to pursue all remedies available at law or in equity.
Notice to DataSift under this Agreement or any related Statement of Work must be in writing and sent by postage prepaid first-class mail or receipted courier service to the address as specified in any Statement of Work.