Einblick Software-as-a-Service Agreement
BY CHECKING THE BOX AGREEING TO THIS EINBLICK ANALYTICS SOFTWARE SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) AND/OR EXECUTING AN ORDER INCORPORATING THIS AGREEMENT BY REFERENCE OR USING THE PRODUCTS, YOU (ON BEHALF OF YOUR COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY, THE “CUSTOMER”) ACCEPT AND AGREE TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN CUSTOMER AND EINBLICK ANALYTICS, INC., A DELAWARE CORPORATION, WITH A BUSINESS ADDRESS LOCATED AT ONE KENDALL SQUARE, BUILDING 400, CAMBRIDGE, MA 02139 (“EINBLICK”). CUSTOMER’S USE OF THE PRODUCTS (AS DEFINED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, SO CUSTOMER SHOULD TAKE THE TIME TO FULLY UNDERSTAND HOW THIS AGREEMENT GOVERNS CUSTOMER’S RELATIONSHIP WITH EINBLICK AND CUSTOMER’S USE OF THE PRODUCTS. CUSTOMER’S RIGHT TO USE THE PRODUCTS IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY, YOU AND THE APPLICABLE COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, CUSTOMER MUST NOT AND MAY NOT ACCESS OR USE THE PRODUCTS IN ANY MANNER FOR ANY PURPOSE. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE EARLIER OF THE DATE THAT CUSTOMER AGREES TO THIS AGREEMENT OR THAT CUSTOMER ACCESSES THE PRODUCTS.
This Agreement shall govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer which reference this Agreement. Einblick provides the Products on a subscription basis (each, a “Subscription”) beginning on the date of Customer’s purchase, enrollment, registration, sign up or execution of an order form (collectively, “Order”) for the duration of the term purchased by Customer (“Subscription Term”).
1. Definitions. Capitalized terms shall have the meaning defined herein.
Confidential Information means any and all non-public, confidential and proprietary information, furnished by the Disclosing Party or any of its Representatives to the Receiving Party or any of its Representatives, that is marked in writing (including e-mail), or in other tangible form, as “confidential” or “proprietary.” Confidential Information may include, without limitation, such marked disclosures that relate to patents, patent applications, trade secrets, research, product plans, products, developments, know-how, ideas, inventions, processes, design details, drawings, sketches, models, engineering, software (including source and object code), algorithms, business plans, sales and marketing plans. Any Confidential Information disclosed orally shall be identified as confidential at the time of disclosure and confirmed as “confidential” in writing within thirty (30) days. Notwithstanding the foregoing, Confidential Information shall expressly include the terms of this Agreement (and any Agreement of which it is a part), the Products, Customer Data, the Documentation, and all know-how, techniques, ideas, principles and concepts which underlie any element of the Products or the Documentation and which may be apparent by use, testing or examination.
Customer Data means all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Products.
Documentation means the product documentation made available by Einblick.
Intellectual Property Rights means any patents, patent rights, design rights, copyrights, database rights, trade secrets, know-how, trademarks, trade names, service marks and other intellectual property embodied therein and all applications and rights to apply for registration or protection rights pertaining thereto, in existence at the date hereof or created in the future.
Product(s) means the software product(s) offered by Einblick are purchased by Customer.
Report means any Report provided to Customer by Einblick in connection with the Products.
Representatives means as to any person, such person’s affiliates and its or their directors, officers, employees, agents, and advisors (including, without limitation, financial advisors, counsel and accountants) bound by a written agreement or other legal obligation to maintain the confidentiality of the Confidential Information disclosed to them as required by the terms of this Agreement.
Hosted Products means software-as-a-service and platform-as-a-service Products listed on an Order.
Use means, for on-premises Products to download, install, and execute the Products, and for Hosted Products, to access and execute the Products.
User means individuals (including employees and independent contractors working on behalf of Customer) authorized by Customer to Use the Products solely for Customer’s internal use.
2. Grant of License. Subject to the terms of this Agreement, Einblick grants to Customer a personal, non-exclusive, non-transferable, non-sublicensable, limited, internal license to Use the Products and documentation made available by Einblick (“Documentation”) for a time-limited period set forth in an Order (“Term”), but only in accordance with (i) the Documentation and (ii) this Agreement. This license is strictly limited to internal business purposes only. Any other use of Products is prohibited. At the end of the Term, the Products may cease to function. Customer has no rights to any support, updates, upgrades, or extensions or enhancements to the Products developed by Einblick, unless it separately purchases such services.
3. Restrictions. Customer shall not, on its own or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, any of the Products or the documentation to a third party; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Products, in whole or in part, nor will Customer use any mechanical, electronic or other method to trace, decompile, disassemble, or identify the source code of the Products or encourage others to do so; (c) allow access to or permit use of the Products by any users other than Users, or any use which violates the technical restrictions of the Products or the terms of this Agreement; (d) use the Products to develop, test, host or run and operate applications on behalf of third-parties, without Einblick’s written consent; (e) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Products; (f) use the Products to provide third-party training; or (g) modify or create derivative works based upon the Products. If Einblick receives information that Customer is in violation of any of the foregoing restrictions, Einblick will notify Customer, and Customer will promptly take remedial action to resolve such violation. If Customer does not take required action in accordance with the above, Einblick reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including suspension or termination of this Agreement or an applicable Order. Customer acknowledges and agrees that Einblick may access Customer’s account and use a license manager, keys or other method to either locally or remotely view, manage, and access Customer’s Use of the Products. Einblick shall have no liability to Customer in the event Einblick takes such action.
4. Customer Account, Password and Security. Customer will protect its passwords and license files and take full responsibility for its own use, and third-party use, of Customer’s accounts. Customer is solely responsible for any and all activities that occur under Customer’s accounts. Customer will notify Einblick immediately upon learning of any unauthorized use of Customer’s accounts or any other breach of security.
5. Payment Terms. All fees are as set forth in the applicable Order and shall be paid by Customer in advance of the applicable Term. If Customer has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Customer grants Einblick the right to charge the credit card or debit the bank account provided to Einblick for all fees incurred under this Agreement. All payments are non-refundable. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by Einblick (or other related entities) will be included in the amount owed by Customer. If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to Einblick hereunder, Payments will be made without right of set-off or chargeback. If payment of any fee is overdue, Einblick may suspend Customer’s Use of the Products and any support until such delinquency is corrected. Non-payment or late payment of undisputed fees is a material breach of this Agreement. To the extent permitted by applicable law, Customer shall pay interest on any overdue balance at the rate of 1 ½% per month or the maximum permitted by law, whichever is less.
6. Customer Data. Einblick acknowledges that, as between Einblick and Customer, Customer owns all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Products (“Customer Data”). Customer hereby grants to Einblick a non-exclusive, royalty-free, license to reproduce, distribute, and otherwise use and display the Customer Data for use with the product. Einblick shall have the right to collect and use any and all data regarding Customer’s Use of the Products, including but not limited to, anonymized and aggregated Customer Data, for general research and development purposes, improving its existing products and services, marketing purposes, and any other business purposes. Customer hereby expressly consents to such use.
If Customer Data includes Personal Information from the European Economic Area, the United Kingdom, or Switzerland for processing, the Data Processing Agreement found at Data Processing Agreement will apply to such Personal Information, and are incorporated into this Agreement.
7. Confidentiality. Confidential Information” means any and all non-public confidential and/or proprietary information, regardless of whether it is in tangible form, disclosed by either party that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party; provided, however, that a disclosing party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified. Einblick’s Confidential Information includes, without limitation, the Einblick Products and the terms of this Agreement. Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information to a third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this Section 7 will not apply to any information that the receiving party can demonstrate: (a) is or becomes a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party, and providing such party with the opportunity to seek a protective order. In the event of actual or threatened breach of the provisions of this Section 7, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
8. Term and Termination. This Agreement and the licenses granted hereunder commence on the Effective Date and shall continue until terminated in accordance with this Section 8. For any trial, proof of concept or evaluation licenses only, unless stated otherwise on the specific Order, (a) the duration of the Term is fourteen (14) days and (b) this Agreement may be terminated for convenience at any time by either party upon written notice to the other party (e-mail being sufficient). For all other Orders, this Agreement may be terminated by either party upon written notice only (a) if the other party has materially breached this Agreement (or any Order) and failed to cure such breach within thirty (30) days written notice from the non-breaching party; and (b) if there are no outstanding Orders, upon thirty (30) days written notice to the other party as of the date specified in such notice of termination.
9. Effect of Termination. All licenses will terminate immediately upon termination of this Agreement. Upon expiration or termination of a Term, the license to the applicable Product granted in Section 2 of this Agreement shall terminate immediately, and Customer shall immediately cease use of all such Products and Documentation, including its access to any Products. During the thirty (30) days following termination and subject to the payment of all fees owed under this Agreement, upon request by Customer, Einblick will make Customer’s Data available to Customer. In no event will termination relieve Customer of the obligation to pay any fees due to Einblick under this Agreement.
10. Warranty Disclaimer. THE PRODUCTS ARE PROVIDED "AS IS." EINBLICK DOES NOT WARRANT THAT THE PRODUCTS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT WILL OPERATE UNINTERRUPTED, THAT THEY WILL BE FREE FROM DEFECTS, OR THAT THE PRODUCTS ARE DESIGNED TO MEET CUSTOMER’S BUSINESS REQUIREMENTS. EINBLICK DOES NOT MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
11. LIMITATION OF REMEDIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR GOODWILL) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12. LIMITATION OF LIABILITY. EINBLICK’S TOTAL AGGREGATE LIABILITY FOR CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO DIRECT DAMAGES CAUSED BY EINBLICK IN AN AMOUNT NOT TO EXCEED ONE THOUSAND ($1,000) DOLLARS. The provisions of this Section 12 allocate risks under this Agreement between Customer and Einblick. Einblick’s fees for the LICENSE reflect this allocation of risks and limitation of liability. THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
13. STATUTE OF LIMITATIONS; JURY WAIVER. NEITHER PARTY SHALL BRING ANY CLAIM BASED ON THE PRODUCTS PROVIDED HEREUNDER MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. BOTH PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT.
14. Indemnity. Customer shall indemnify, defend, and hold harmless Einblick and the officers, directors, agents, and employees of Einblick (“Einblick Indemnified Parties”) against any Claims arising from (a) the gross negligence, bad faith, fraudulent acts or omissions, or intentional or willful misconduct of Customer, (b) any use or disclosure by Customer of any Einblick Product in violation of this Agreement, (c) the exercise of any rights granted to Einblick by Customer in or to the Customer Data in accordance with this Agreement. Further, Customer shall indemnify the Einblick Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Einblick will notify Customer promptly in writing of any claim covered by the foregoing indemnifications. The parties agree to cooperate fully during such proceedings. Customer will have the right to defend any such claim with attorneys that are reasonably acceptable to Einblick, and will have control over the litigation, negotiation, and settlement of, any claim. Einblick may be represented by separate counsel at its own expense. Customer will not make any settlement that materially affects the rights of Einblick without Einblick’s consent.
15. Compliance with Laws. Customer agrees that Customer’s Use of the Products will comply with all applicable laws, including without limitation all applicable anti-corruption laws, anti-money laundering laws, antitrust laws, economic sanctions laws, export control laws, data protection and data privacy laws, and modern slavery and human trafficking laws. Einblick shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
16. Export Laws. Customer agrees that Customer’s use of the Products (including related documentation) will comply with applicable export control and trade sanctions laws, rules and regulations, including without limitation the regulations promulgated by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Laws”). Customer represents and warrants that Customer is not (i) located or resident in a country or territory that is subject to comprehensive U.S. trade sanctions or other significant trade restrictions (including, without limitation, Crimea, Cuba, Iran, North Korea, and Syria) (collectively, the “Sanctioned Countries”); or (ii) identified on any U.S. government restricted party lists (including without limitation the Specially Designated Nationals and Blocked Persons List, Foreign Sanctions Evaders List, and Sectoral Sanctions Identifications List, administered by OFAC, and the Denied Party List, Entity List and Unverified List, administered by BIS) (collectively, the “Restricted Party Lists”). Customer further certifies that Customer will not, directly or indirectly, export, re-export, transfer or otherwise use the Products (nor any direct product thereof) in violation of the Export Laws, or with any purpose prohibited by the same Export Laws, in any Sanctioned Country, to any person or entity on a Restricted Party List, or for any nuclear, chemical, missile or biological weapons related end uses. Customer acknowledges that the Products, or any feature or part thereof, may not be available for use in all jurisdictions and that Customer is responsible for complying with applicable Export Laws wherever Customer uses the Products. Einblick shall have the right to terminate this Agreement, without notice and without liability, for any perceived or actual breach of this clause.
17. General. This Agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. If any provision of this Agreement is found to be void, invalid or unenforceable: (a) the same will be conformed to the extent necessary to comply with applicable law or stricken if not so conformable, so as not to affect the validity of this Agreement; and (b) the remaining provisions will remain in effect. No amendment of this Agreement or any exhibit is binding unless in writing and executed by each of the parties. Any waiver or consent is valid only if in a signed writing and only in the specific instance in which it is given, and such waiver or consent is not to be construed as a waiver of any subsequent breach of any other provision or as a consent with respect to any similar instance or circumstance. This Agreement does not confer any third party beneficiary rights and does not create a joint venture, partnership or employment relationship between the parties. Except as expressly provided herein, neither party has the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA). For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in the State of Delaware and waives any jurisdictional, venue, or inconvenient forum objections to such courts. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns. Customer may not directly or indirectly, including by assignment, operation of law or change of control, transfer or assign this Agreement without Einblick’s prior written consent. Einblick may freely transfer or assign this Agreement. This Agreement may be executed in counterparts, each of which will be an original, and all of which together will be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement.