Master Subscription Agreement
Last Updated: October 23, 2023
This Master Subscription Agreement (“Agreement”) is entered into by and between Archipelago Analytics, Inc. (“Archipelago”), a Delaware corporation with offices located at 8 California Street, San Francisco, CA 94111 and the organization placing an order for or otherwise obtaining services from Archipelago (“Customer”). This Agreement shall be effective on the earliest to occur of (a) the date Customer clicks a button, checks a box, or otherwise similarly indicates online its agreement with the terms of this Agreement; (b) Customer entering into an Order Form or similar form referencing or otherwise incorporating this Agreement; or (c) Customer’s first use of the Services (the “Effective Date”). Archipelago and Customer are referred to individually as a “Party” and collectively as the “Parties.” Capitalized terms not defined herein have the meanings stated in the Order Form.
WHEREAS, Archipelago offers subscriptions to its software-as–service offering that enable its customers to upload and manage real property data (including, e.g., building description, location, and construction materials);
WHEREAS, Customer wishes to subscribe to Archipelago’s SaaS service for managing such real property data;
NOW THEREFORE, Customer and Archipelago hereby agree as follows:
1. Definitions. Capitalized terms used but not defined in the main body of this Agreement are defined in Exhibit A attached hereto and incorporated herein by reference.2. Service.
2.1. Order Form. This Agreement permits Customer to purchase subscriptions to Service (as defined below) from Archipelago pursuant to one or more mutually executed Order Forms, and it sets forth the basic terms and conditions under which the Service will be delivered.
2.2. Access to Service; SLA. Subject to the terms of this Agreement and the applicable Order Form, Customer will have a non-exclusive, non-transferable (except as specifically permitted in this Agreement) right to access and use the Service solely for Customer’s internal business purposes. Archipelago will use commercially reasonable efforts to deliver the Service in accordance with the Service Level Addendum available at https://www.onarchipelago.com/customers/sla.
2.3. Updates to Service. Archipelago may update the content, functionality, and user interface of the Service and may release Improvements from time to time in its sole discretion. Customer agrees that its purchase of the Service is not contingent upon the delivery of any future functionality or features.
2.4. User Access. Customer may, at its option and in its sole discretion, grant Users access to the Service and Customer Data within the Service. Customer acknowledges and agrees that: (i) Users will have the access authorized by Customer (including, e.g., to view, download, and query the Customer Data) and that it is Customer’s sole responsibility to evaluate, and Customer assumes, any risks related to its sharing of Customer Data with Users; (ii) Archipelago has no control over, and will have no liability for, any acts or omissions of any User with respect to Customer’s sharing of Customer Data or Users’ access or use of the Service; and (iii) Customer is solely responsible for the acts and omissions of its Users and their compliance with Customer’s obligations under this Agreement. For clarity, Archipelago has no control over, and will have no liability for, any acts or omissions of any User.
2.5. Administration of Customer’s Account. Customer may specify one or more Users as administrators (each an “Administrator”) to manage its account, and Archipelago is entitled to rely on communications from such Administrators when servicing Customer’s account. Customer is responsible for maintaining the security of User accounts and passwords.
2.6. Restrictions. Customer and its Users will use the Service in compliance with applicable laws, rules, regulations, and self-regulatory guidelines and will not (and will not allow any third party to) directly or indirectly: (i) reverse engineer, decode, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, schema, or algorithms relevant to the Service; (ii) copy, in whole or in part, the Service or any component thereof; (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Service; (iv) license, sell, rent, lease, or transfer the Service, or use the Service for timesharing or service bureau purpose; (v) remove or obscure any proprietary notices, product information, or labels; (vi) use the Service outside the scope expressly permitted under this Agreement; (vii) use the Service if Customer or a User is a competitor of Archipelago, or for purposes of monitoring the Service’s availability, performance or functionality, or publish any benchmarks or performance information about the Service; (viii) use the Software in connection with any High Risk Activities (and Archipelago has no liability for any such use); or (ix) use the Service in a manner that interferes with or disrupts the integrity, security, or performance of the Service (or any data contained therein). Customer acknowledges and agrees that the Service is not designed to comply with any industry-specific regulations including the Payment Card Industry Data Security Standards (PCI), the Health Insurance Portability and Accountability Act (HIPAA), or the Gramm-Leach-Bliley Act, and neither Customer nor its Users will use the Service where Customer’s or Users’ communications or any Customer- or User-provided information would be subject to such laws, nor will Customer or any Users submit or solicit any information that is personal financial information, personal or protected health information (in each case as defined under applicable law, or sensitive information (including, for example, information related to race or ethnic origin, political opinions, religion or other beliefs, health or sex life, criminal background, trade union membership, or any other similar information). Any use of the Service that, in Archipelago’s reasonable judgment, threatens the security, integrity, or availability of the Service, or violates any of the foregoing restrictions may result in immediate suspension of the Service. Archipelago will use commercially reasonable efforts to notify Customer promptly following such suspension. Archipelago reserves the right to throttle or limit the Service in the event of excessive bandwidth, storage, or other usage which Archipelago reasonably determines could adversely impact performance or cost of the Service or any component thereof and will make commercially reasonable efforts to provide Customer with prior notice of such action.
2.7. Security; Protection of Customer Personal Data. The Service is designed to manage real property data and not to process personal data (other than as incidentally required for User accounts). However, if and to the extent any Personal Data (as defined in the DPA referenced below) is provided by or on behalf of Customer or its Users, then the data processing addendum ("DPA") at https://www.onarchipelago.com/customers/dpa (as may be updated by Archipelago if required by applicable law) will apply, and the Parties agree to comply with such terms. For purposes of the DPA (including the Standard Contractual Clauses referred to therein), Customer is the data controller and data exporter, and Customer's entering into this Agreement will be treated as signing of the DPA (including the Standard Contractual Clauses and their Appendices). Archipelago will implement and maintain reasonable administrative, organizational, and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data at least as rigorous as the measures described in Archipelago’s Data Security standards available at https://www.onarchipelago.com/security.
2.8. Compliance. Customer is solely responsible for all Customer Data, including the accuracy, quality, legality, and reliability thereof. Customer will ensure that it (including its Users) is entitled to transfer the Customer Data to Archipelago so that Archipelago and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement. Customer will promptly notify Archipelago if it becomes aware of any unauthorized use or access to Customer’s account or the Service.
2.9. Non-Archipelago Services. Archipelago or third parties may, from time to time, make available to Customer access to third-party applications, products, or services (collectively, “Third Party Service(s)”). Customer may, in its discretion, engage with or acquire a Third Party Service and/or any exchange data with a Third Party Service or Third Party Service provider (“Third Party Service Provider”), and any such engagement, acquisition, or exchange is solely between Customer and the applicable Third Party Service or Third Party Service Provider. For clarity, Archipelago does not warrant or guarantee or otherwise have responsibility for any Third Party Services or Third Party Service Providers, regardless of whether designated by Archipelago as “certified” or otherwise.
2.10. Removal of Content. If Customer receives notice that Content (defined in Section 6.3 (Third Party Data)) must be deleted or use thereof discontinued to avoid violating applicable law, third-party rights, or other obligations, Customer will promptly do so. If Customer does not take such required action, or if in Archipelago’s judgment continued violation is likely to reoccur, or if Archipelago is otherwise required to do so, Archipelago may disable, remove, or discontinue access to the applicable Content. If requested by Archipelago, Customer will confirm such deletion and discontinuance of use in writing and Archipelago will be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.
2.11. Free Services. Archipelago may from time to time, offer Customer access (which Customer may accept or decline in its sole discretion) to services, features, information, or functionality for Customer to access, try, or use at no charge, which services are designated as free, pilot, trial, beta, evaluation, or other similar designation, including for example, free diagnostic services or to a version of the Services on a trial basis free of charge (each individually a “Free Service,” and collectively, “Free Services”). Customer acknowledges and agrees that with respect to Free Services, notwithstanding anything to the contrary in this Agreement or any Order Form or Documentation, the following terms shall apply: (a) Free Services are provided “AS-IS” and “AS AVAILABLE,” without any warranties of any kind; (b) Archipelago shall have the right to terminate Free Services at any time and for any reason with or without notice; (c) Archipelago shall have no indemnity or other obligations with respect to Free Services, nor any liability of any kind with respect thereto unless such exclusion of liability is not enforceable under applicable law, in which case Archipelago’s liability shall not exceed U.S. $500; (d) Customer acknowledges that any data, including Customer Data, entered as part of a free trial into any Free Services will not be recoverable by Customer unless Customer either purchases a subscription to the same services as those covered by the free trial or exports such data before the end of the free trial period such that there is no break in service; (e) except as otherwise expressly stated in this Section, use of Free Services is subject to the terms of this Agreement, including but not limited to Section 5 (Confidentiality), Section 6.2 (Ownership by Archipelago), and Section 7.4 (Disclaimer); and (f) in the event of a conflict between this Section and any other portion of this Agreement, this Section 2.11 shall control.
2.12. Professional Services. Any Professional Services purchased by Customer must be documented in one or more mutually executed Statement(s) of Work.
3. Fees.
3.1. Fees and Payment. Customer will pay amounts set forth in an applicable Order Form or Statement of Work (“Fees”) and any other amounts due hereunder as set forth in this Section. Unless otherwise specified in an Order Form, Subscription Fees are based on annual periods that begin on the Subscription start date and each annual anniversary of such date thereafter. Subscription Fees are set forth in the applicable Order Form and are payable annually in advance within thirty (30) days of the invoice date. Professional Services Fees are set forth in the applicable Statement of Work and are payable as specified therein. Customer is responsible for providing complete and accurate billing information to Archipelago. Customer will pay all Fees when due and, if such Fees are being paid via credit card or other electronic means, Customer authorizes Archipelago to charge such Fees using Customer’s selected payment method. If Customer disputes any part of an invoice in good faith, Customer will provide Archipelago with notice and detail of the dispute prior to the invoice due date and pay the undisputed portion by the invoice due date. Customer remains liable for and will promptly pay any disputed amounts so withheld and later determined to be due. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable, and Fees paid are non-refundable unless otherwise expressly stated herein. If Customer requires the use of a purchase order or purchase order number, Customer will provide the purchase order number at the time of purchase.
3.2. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including sales, use, excise, value-added, goods and services, consumption, withholding, and other similar taxes or duties (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder (excluding taxes based on Archipelago’s net income). If a payment by Customer is subject to withholding taxes or any other taxes in accordance with applicable law, Customer will increase the Fees payable to Archipelago by an amount sufficient to fully offset the impact of such Taxes, such that Archipelago will receive the full amounts due under this Agreement. Customer agrees to use its best efforts to determine whether the withholding Tax can be reduced or eliminated under an applicable tax treaty, and Archipelago agrees to act in good faith to provide documentation necessary to evidence qualification under any such tax treaty. Customer will be responsible for any penalties, or interest that may apply based on Archipelago’s failure to charge appropriate tax due to incomplete or incorrect information provided by Customer. If Customer is exempt from certain Taxes, Customer will provide proof of such exemption to Archipelago without undue delay upon execution of the applicable Order Form or Statement of Work.
3.3. Authorized Reseller. For any Service or Professional Service acquired by Customer through a third party expressly authorized by Archipelago for such purpose (for purposes hereof, an “Authorized Reseller”), Sections 3.1 through 3.3 above will not apply (except for Archipelago’s suspension rights under Section 3.2 above). While all other terms of this Agreement will continue to apply exclusively to Archipelago and Customer as stated herein, Customer will contract directly with the applicable Authorized Reseller with respect to payment for the purchase of the Service provided hereunder.
4. Term, Termination, and Effect of Termination.
4.1. Term. The term of this Agreement commences on the Effective Date and will, unless earlier terminated per Section 4.2 below, remain in effect until all Subscriptions to the Service and Professional Services granted in accordance with this Agreement have expired or been terminated (“Term”).
4.2. Termination. Either Party may terminate this Agreement, any Order Form, or any Statement of Work hereunder by written notice to the other Party in the event that: (i) such other Party materially breaches this Agreement and does not cure such breach within thirty (30) days of receipt of such notice detailing the scope and nature of such breach from the non-breaching Party, except termination will take effect upon notice in the event of a breach of Section 2.3 (Restrictions); or (ii) such other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and such proceedings are not dismissed within sixty (60) days.
4.3. Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of this Agreement, Archipelago may immediately deactivate Customer’s account(s) associated with the Agreement. Upon written request by Customer received by Archipelago within thirty (30) days after the effective date of expiration or termination, Archipelago will make Customer Data available to Customer for export. After such thirty (30) day period, Archipelago will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, be entitled to delete all Customer Data in its systems or otherwise in its possession or under its control.
4.4. Effect of Termination. Upon expiration or termination of this Agreement for any reason, all Subscriptions, Order Forms and Statements of Work, and any other rights granted to Customer under this Agreement, will immediately terminate, and Customer will immediately cease all use of the Service and Professional Services. Upon any termination by Customer pursuant to Section 4.2 above, Archipelago will refund to Customer a prorated amount of prepaid, unused Fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination. Upon any termination by Archipelago pursuant to Section 4.2 above, Customer will pay any unpaid Fees covering the remainder of the Subscription Term. In no event will any termination relieve Customer of the obligation to pay any Fees accrued or payable to Archipelago for the Service and any Professional Services in the period prior to the effective date of termination. The following sections will survive expiration or termination of this Agreement: Sections 1 (Definitions), 2.3 (Restrictions), 2.11 (Free Services), 3 (Fees), 4.3 (Treatment of Customer Data Following Expiration or Termination), 4.4 (Effect of Termination), 5 (Confidentiality), 6 (Ownership), 7.4 (Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), and 10 (General).
5. Confidentiality.
5.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Recipient”), whether orally or in writing, that is designated in writing as confidential, proprietary, or some similar designation, or that reasonably should be understood to be confidential given the nature of the information and the circumstances, which may include the Disclosing Party’s technology and technical information, product plans and roadmaps, designs, specifications, business plans and information (including sales and marketing information), security systems, financial information, employees, contractors, and customers. In addition to the foregoing, Confidential Information of Customer includes Customer Data, and Confidential Information of Archipelago includes information regarding the Service, Free Services, Professional Services, Documentation, and the terms and conditions of this Agreement and Order Forms and Statements of Work (including pricing). Confidential Information does not include information that Recipient can demonstrate (a) is or has become generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to Recipient prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is rightfully received by Recipient from a third party without breach of any obligation owed to the Disclosing Party, (d) was independently developed by Recipient without use of or reference to the Disclosing Party’s Confidential Information, or (e) was approved in writing by the Disclosing Party for disclosure by Recipient.
5.2. Protection of Confidential Information. As between the Parties, each Party retains all ownership and other rights in and to its Confidential Information. Recipient will use the same degree of care to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own confidential information of like kind (but not less than a reasonable standard of care) and will not use any Confidential Information of the Disclosing Party for any purpose except as authorized under this Agreement and will limit access to the Disclosing Party’s Confidential Information to those of its employees, contractors, Affiliates, legal counsel, auditors, and advisors (collectively, “Representatives”) who need to know such information or need such access for purposes related to this Agreement and who have either agreed in writing to or are otherwise legally bound by confidentiality requirements not less protective of the Disclosing Party’s Confidential Information than those set forth herein, provided, however, that notwithstanding the foregoing, a Party that makes any such disclosure or provides such access to its Representative(s) will remain responsible for such Representatives’ compliance with terms of this “Confidentiality” section. Notwithstanding the foregoing, either Party may disclose the terms of this Agreement to potential parties to a bona fide fundraising, acquisition, or similar transaction solely for purposes of the proposed transaction, provided that any such potential counterparty is subject to written non-disclosure obligations and limitations on use no less protective than those set forth herein.
5.3. Compelled Disclosure. Recipient may disclose Confidential Information of the Disclosing Party to the extent compelled by law or legal process and will (if legally permitted) give the Disclosing Party with prior notice of the compelled disclosure. If Recipient is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse Recipient for its reasonable cost of compiling and providing secure access to that Confidential Information.
6. Ownership; License Grants.
6.1. By Customer. As between Archipelago and Customer, Customer will own all right, title, and interest in and to the Customer Data. Customer hereby grants to Archipelago, its Affiliates, and its relevant service providers a non-exclusive, royalty-free, fully paid-up, worldwide, right and license to access, store, reproduce, display, handle, perform, transmit, test, modify, process, derive from, combine with other data, and otherwise use Customer Data: (a) as necessary for performance of Archipelago’s obligations and exercise of Archipelago’s rights under this Agreement; (b) to support, maintain, provide, develop, support, and improve the Service and Professional Services, and as otherwise expressly permitted under this Agreement; (c) to investigate in good faith an allegation that Customer or any User is in violation of this Agreement; (d) at Customer's direction or request or as otherwise permitted in writing by Customer; and (e) as required by law.
6.2. By Archipelago. As between Archipelago and Customer, Archipelago and its licensors own and will retain all right, title, and interest, including all related Intellectual Property Rights, in and to the following: the Service, Professional Services, Free Services, all underlying data compilations, schema, components and information related to the Service or Professional Services, Documentation, Free Services, Derived Data, Usage Data, and any and all other materials and information provided by or accessed from Archipelago hereunder, and all enhancements, customizations, modifications, and derivative works of the foregoing, notwithstanding that portions thereof may be derived in whole or in part from publicly available sources. No rights are granted to Customer hereunder other than as expressly set forth herein. Archipelago grants to Customer a royalty-free, non-sublicensable, non-transferable, non-exclusive license to use any reports and other output made available to Customer in connection with the Service and Professional Services solely in conjunction with Customer’s authorized use of the Service and Professional Services and in accordance with this Agreement.
6.3. Third Party Data. The Service and Professional Services may include access for Customer to various third party data and Archipelago data that is utilized with or provided by the Service or Professional Services (collectively, “Content”), and, as between Customer on the one hand and Archipelago and third party data sources on the other hand, all Content is owned by Archipelago or the applicable third party source or vendor, and Customer may use Content solely as part of the Service or Professional Services and as may be embedded in the output of the Service or Professional Services provided by Archipelago to Customer hereunder. Content includes data compiled from third party sources, including public records, user submissions, and other commercially available data sources. These sources may not be accurate, complete, or up-to-date, and are subject to ongoing and continual change without notice. Neither Archipelago nor its third party data sources make any representations or warranties regarding the Content or assumes any responsibility for the accuracy, completeness, or currency thereof.
6.4. Aggregated and De-Identified Data. Notwithstanding anything to the contrary in this Agreement, Archipelago may collect and use Usage Data and Derived Data for purposes including developing, operating, supporting, improving Archipelago’s products and services, and as otherwise permitted under this Agreement. Archipelago shall not publish Usage Data or Derived Data except to the extent such data is aggregated and de-identified such that neither Customer nor Users are identified therein.
6.5. Suggestions. Archipelago welcomes feedback from its customers about the Service and Professional Services. If Customer or any User provides Archipelago with any feedback or suggestions regarding the Service or Professional Services (“Feedback”), Archipelago may use, disclose, reproduce, sublicense, or otherwise distribute, create derivatives of, and exploit the Feedback without any restrictions or obligations to Customer or any User. Archipelago will not identify Customer or any User as the source of such Feedback.
7. Warranties; Disclaimer.
7.1. Mutual. Each Party represents and warrants to the other party that (a) it has the full corporate right, power, and authority to enter into and perform its obligations under this Agreement and (b) this Agreement constitutes the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
7.2. Warranty. Archipelago represents and warrants during the applicable Subscription Term that (a) the Service will perform materially in accordance with the applicable Documentation, and (b) Archipelago will not materially degrade the functionality of the Service purchased under the applicable Order Form. For any breach of the foregoing warranties, provided that Customer provides Archipelago with reasonably detailed notice of a warranty claim within thirty (30) days of discovering the issue with respect to the Service, as Archipelago’s sole liability and Customer’s exclusive remedy, Archipelago will correct any material reproducible impairments to the features and functionality of the Service so that they comply with the foregoing warranty, and if Archipelago is unable to provide the Service as warranted within a commercially reasonable time following receipt of written notice of such breach, Customer will be entitled to terminate the applicable Order Form and receive a prorated refund of any prepaid, unused Fees applicable to the remaining portion of the Subscription Term measured from the effective date of termination. For any Professional Services, Archipelago represents and warrants that the Professional Services will be performed in a timely, professional, and workmanlike manner, in accordance with applicable industry standards.
7.3. By Customer. Customer represents and warrants that Customer owns or validly licenses the Customer Data so that it may legally provide such Customer Data to Archipelago for processing in accordance with this Agreement.
7.4. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN SECTIONS 7.1 AND 7.2 ABOVE, THE SERVICES, FREE SERVICES, PROFESSIONAL SERVICES, DOCUMENTATION, CONTENT, THIRD PARTY SERVICES AND OTHER NON-ARCHIPELAGO SERVICES, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND ARCHIPELAGO AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ARCHIPELAGO DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SERVICES, FREE SERVICES OR PROFESSIONAL SERVICES, NOR DOES ARCHIPELAGO MAKE ANY WARRANTY, GUARANTY, OR OTHER COMMITMENT RELATED TO THE ACCURACY OR COMPLETENESS OF ANY RESULTS CUSTOMER OR ITS USERS MAY OBTAIN BY USING THE SERVICES, FREE SERVICES OR PROFESSIONAL SERVICES (INCLUDING ANY PREDICTIONS OR ANALYTICS INCLUDED IN SUCH RESULTS), AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS. ARCHIPELAGO DOES NOT WARRANT THAT THE SERVICES, FREE SERVICES OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE, OR THAT ARCHIPELAGO WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. ARCHIPELAGO IS NOT RESPONSIBLE FOR AND DISCLAIMS ALL LIABILITY RELATED TO DELAYS, DELIVERY FAILURES, INTERCEPTION, ALTERATION, OR OTHER DAMAGE RESULTING FROM MATTERS OUTSIDE OF ITS REASONABLE CONTROL, INCLUDING PROBLEMS INHERENT IN THE USE OF THE INTERNET, MOBILE, AND PERSONAL COMPUTING DEVICES, TRANSMISSION OF ELECTRONIC COMMUNICATIONS OVER THE INTERNET OR OTHER NETWORKS, AND THIRD PARTY HOSTING SERVICE PROVIDERS.
8. Limitation of Liability.
8.1. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE AFFILIATES HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, LOSS OF USE, ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.2. Limit of Liability. EXCEPT AS SPECIFIED BELOW, FOR CLAIMS FOR AMOUNTS DUE HEREUNDER, AND CLAIMS FOR A PARTY’S BREACH OF SECTION 2.5 (RESTRICTIONS), IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY OR ITS RESPECTIVE AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER FORM OR STATEMENT OF WORK HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO ARCHIPELAGO UNDER THE APPLICABLE ORDER FORM OR STATEMENT OF WORK IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LIABILITY (“GENERAL LIABILITY CAP”). NOTWITHSTANDING THE FOREGOING, IN CASE OF CLAIMS FOR BREACH OF SECTION 5 (CONFIDENTIALITY) AND INDEMNITY CLAIMS UNDER SECTION 9 (INDEMNITY), EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO (2) TIMES THE GENERAL LIABILITY CAP (“SPECIFIC LIABILITY CAP”), AND ARCHIPELAGO WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO FREE SERVICES NOR ANY LIABILITY OF ANY KIND WITH RESPECT THERETO UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ARCHIPELAGO’S LIABILITY FOR FREE SERVICES WILL NOT EXCEED $500. IN NO EVENT WILL EITHER PARTY OR ITS RESPECTIVE AFFILIATES BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SPECIFIC LIABILITY CAP, NOR WILL THOSE CAPS BE CUMULATIVE: RATHER, IF A PARTY (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE WILL NOT EXCEED THE SPECIFIC LIABILITY CAP.
8.3. The provisions of this Section 8 allocate the risks under this Agreement between the Parties, and the Parties have relied on these limitations in determining whether to enter into this Agreement.
9. Indemnification.
9.1. Indemnification By Archipelago. Archipelago will defend Customer, its employees, directors, officers and Affiliates (“Customer Indemnitees”) from and against any claim, demand, suit, or proceeding (“Claim”) made or brought against a Customer Indemnitee by a third party to the extent alleging that Customer’s authorized use of the Service infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of such third party (each, a “Claim Against Customer”), and Archipelago will indemnify Customer Indemnitees for any damages, reasonable attorneys’ fees, and costs finally awarded against Customer as a result of, or for any amounts paid by the Customer under an Archipelago-approved settlement of, a Claim Against Customer; provided, however, in no event will Archipelago have any obligations or liability under this Section 9.1 to the extent a Claim Against Customer arises from: (a) use of the Service other than as permitted under this Agreement; (b) use of the Service in a modified form or in combination with products, services, content, or data not furnished to Customer by Archipelago; or (c) Customer’s directions or specifications. If the Service become, or in Archipelago’s reasonable judgment are likely to become, the subject of a claim of infringement, then Archipelago may in its sole discretion: (a) obtain the right, at Archipelago’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Service so that they are no longer infringing. If Archipelago, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable or practicable, then Archipelago may suspend or terminate Customer’s use of the Service and in such case will provide Customer with a prorated refund of any prepaid, unused Fees applicable to the remainder of the applicable Subscription Term. This Section 9.1 sets out Customer’s exclusive remedy and Archipelago’s sole liability regarding infringement of third party Intellectual Property Rights.
9.2. Indemnification By Customer. Customer will defend Archipelago, its employees, contractors, directors, officers, and Affiliates (“Archipelago Indemnitees”) from and against any Claims made or brought against an Archipelago Indemnitee by a third party to the extent arising out of or relating to Customer Data, or any unauthorized use of the Service or use of the results thereof by Customer or its Users (each, a “Claim Against Archipelago”), and Customer will indemnify and hold Archipelago Indemnitees harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Archipelago as a result of, or for any amounts paid by Archipelago under a Customer-approved settlement of, a Claim Against Archipelago.
9.3. Indemnification Process. The indemnifying Party’s obligations in this Section 9 are subject to receiving from the indemnitee: (a) prompt written notice of the claim, (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim and (c) all reasonably requested cooperation and information at the indemnifying Party’s expense for reasonable out-of-pocket costs. Failure to give prompt notice will not constitute a waiver of the indemnitee’s right to indemnification and will relieve the indemnifying Party of its obligations under this Section 9 only to the extent that the indemnifying Party’s rights are materially prejudiced by such failure or delay. The indemnifying Party shall not settle any claim that would bind the indemnified party to any obligation or require any admission of fault by the indemnified party, without the indemnified Party’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed.
10. General
10.1. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
10.2. Export Compliance. The Service, Content, other Archipelago technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation and will comply with all applicable export control laws and regulations related to its use of the Service and Content.
10.3. Anti-Corruption. Customer acknowledges and agrees it has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
10.4. Severability; No Waiver. In the event that any provision of this Agreement is found to be invalid or unenforceable pursuant to any judicial decree or decision, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and a Party’s failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
10.5. Assignment. Neither Party may assign any of its rights or obligations hereunder without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms and Statements of Work) without the other Party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or voting securities. This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns. There are no third-party beneficiaries to this Agreement.
10.6. Governing Law; Venue. This Agreement and any disputes arising hereunder will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each Party hereby consents to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.7. Dispute Resolution and Arbitration; Equitable Relief. The Parties agree that most disputes can be resolved without resort to litigation. The Parties agree to use all reasonable efforts to settle any dispute directly through consultation with each other before initiating a lawsuit or arbitration. If, after good faith negotiations the Parties are unable to resolve the dispute, the Parties agree that, except as expressly stated herein, any and all disputes arising out of or in any way relating to this Agreement, including its existence, validity or termination, will be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS will appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California. The arbitration will be conducted in English. The arbitrator will provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. Notwithstanding the foregoing, the Parties agree that damages may be an inadequate remedy in the case of any actual or threatened breach of certain terms of this Agreement (including unauthorized disclosure of Confidential Information, infringement of a Party’s Intellectual Property Rights, and enforcement of an arbitration award hereunder), and that either Party will be entitled to seek equitable relief (without the requirement of posting a bond or other security) in any court of competent jurisdiction as specified in Section 10.8 above (Governing Law; Venue) in addition to any other remedies such Party may have under this Agreement.
10.8. Notices. Archipelago may give general notices related to the Service and Professional Services that are applicable to all customers by email, text, in-app notifications, or by posting them on the Archipelago website or through the Service, and such electronic notices will be deemed to satisfy any legal requirement that such notices be made in writing. All other notices and consents under this Agreement will be in writing and will be deemed effective upon (a) receipt by personal delivery, (b) the fifth (5th) business day after mailing by prepaid registered or certified U.S. mail (return receipt requested), (c) the second (2nd) business day after sending by nationally recognized courier service, or, except for notices of termination, warranty claim, or an indemnifiable claim (collectively, “Legal Notices”) which must be delivered in accordance with one of subsections (a), (b), or (c) above, will be deemed effective on (d) the day of sending by email (without notice of non-delivery) followed by delivery of notice per one of the foregoing methods. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer may be sent to the Customer address set forth in the applicable Order Form or Statement of Work. All notices to Archipelago will be sent to Archipelago Analytics, Inc., 8 California Street, San Francisco, CA 94111, Attn: Legal Dept., with a simultaneous copy emailed to legal@onarchipelago.com.
10.9. Government End User. If Customer or any User is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (“FAR”), Customer acknowledges that elements of the Service constitute software and documentation and are provided as “Commercial Items” as defined in 48 C.F.R. 2.101 and are being licensed to U.S. government User as commercial computer software subject to restricted rights described in 48 C.F.R. 2.101, 12.211 and 12.212. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors. This U.S. Government End User Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data. The Service were developed fully at private expense. All other use is prohibited.
10.10. Publicity. Archipelago may use and display Customer’s name, logo, trademarks, and service marks on Archipelago’s public customer lists (including in Archipelago’s website, social media, and marketing and promotional materials) in connection with identifying Customer as a customer of Archipelago. Archipelago agrees that any such use will be subject to Archipelago’s compliance with any written guidelines that Customer may deliver to Archipelago regarding the use of Customer’s name.
10.11. Force Majeure. Neither Party will be liable for delayed, inadequate, or failed performance of its obligations hereunder (other than for non-payment) if such delay or failure arises from any cause or condition beyond the reasonable control of the affected Party, including natural disasters, fire, flood, epidemic, pandemic, act of God, civil disturbance, act of a public enemy or terrorist, act of any military, civil, regulatory, or governmental authority, change in law or regulation, labor conditions, interruption or failure of the Internet or any utility service, denial of service or ransomware attacks, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing that could not have been prevented by such Party with reasonable care (each a “Force Majeure Event”). The Party affected will be relieved from its obligations hereunder (or applicable part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations.
10.12. Entire Agreement; Order of Precedence; Interpretation. This Agreement, including all Archipelago policies and agreements referred to herein, and all Order Form(s) and Statements of Work hereunder, constitutes the entire agreement between the Parties concerning the subject matter hereof, supersedes and replaces all prior or contemporaneous representations, understandings, and agreements, whether written or oral, with respect to such subject matter, and may not be modified or amended except upon mutual written agreement signed by both Parties. The Parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. The Parties agree that any term or condition stated in a customer purchase order or in any other Customer order documentation (excluding Order Forms and Statements of Work) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the applicable Order Form or Statement of Work, (2) this Agreement, and (3) the Documentation. As used in the Agreement, (a) “include” and “including” mean “including, without limitation,” and (b) “will” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
10.13. Counterpart; Headings. This Agreement may be executed and delivered by PDF, counterparts, and/or electronic signatures, and such execution and delivery will have the same force and effect of an original document with original signature. Titles and headings of sections of this Agreement are for convenience only and will not affect the construction of any provision of this Agreement.
EXHIBIT A
DEFINITIONS
“Affiliate” means any entity that controls, is controlled by, or is under common control with a Party hereto. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests (or equivalent) of the subject entity.
“Customer Data” means all documents, files, statement of values (SOV), and other real property materials, in each case as submitted to the Service or otherwise provided by or on behalf of Customer or Users.
“Derived Data” means all data created or derived, directly or indirectly, from or on the basis of Customer Data, including using computations, models, schema, analyses, manipulations, or other processes applied to the Customer Data (whether human or machine-generated and whether alone or in conjunction with other data).
“Documentation” means any user guides, manuals, instructions, training, and other materials, that Archipelago makes available to Customer that describe the technical functionality, features, or requirements of the Service.
“High Risk Activities” means any activities where use or failure of the Software could lead to death, personal injury or environmental damage, including but not limited to life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
“Improvements” means enhancements, upgrades, error corrections, and bug fixes to the Service that Archipelago makes generally available to customers at no additional charge.
“Intellectual Property Rights” means (a) unpatented inventions, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, moral rights, know-how, trade secret rights, and all other intellectual property rights, (b) all derivatives of the foregoing, (c) all registrations, applications, renewals, extensions, continuations, divisions, and reissues of the foregoing now or hereafter in force, (d) and all forms of protection of a similar nature anywhere in the world.
“Order Form” means an Archipelago ordering form that specifies the Service purchased by Customer under this Agreement and is agreed to by Customer (whether by signature or by online election or submission). Order Forms will be subject to and incorporate by reference the terms of this Agreement.
“Professional Services” means any supplemental, professional services provided by Archipelago to Customer in an applicable Statement of Work.
“Service” means the Archipelago’s software as a service offering identified in the applicable Order Form and any Improvements thereto.
“Statement of Work” means an Archipelago statement or work form that specifies the Professional Services purchased by Customer under this Agreement and is agreed to by Customer (whether by signature or by online election or submission). Statements of Work will be subject to and incorporate by reference the terms of this Agreement.
“Subscription” means the access to the Service purchased by Customer as set forth in the applicable Order Form.
“Subscription Term” means the period identified in the Order Form during which Customer, including its Users, is permitted to access and/or use the Service pursuant to the terms of this Agreement.
“Usage Data” means data and information regarding the provision or performance of the Service, Customer’s and Users’ access to or use thereof (e.g. number and duration of user sessions, page visits, configurations, log data, performance results for the Service, etc.), and data (including metadata) collected or generated in connection therewith, including statistical, operational, navigational, transactional, processing, computer (such as IP address and browser), demographical, and analytical data.
“User” means an employee of Customer, or of an Affiliate of Customer, or of an insurance broker, or underwriter of any of the foregoing, in each case authorized by Customer to access and/or use the Service, Professional Services, or Customer Data within the Service under Customer’s account. If Customer wishes to authorize individuals not described above, it may do so with Archipelago’s prior written consent on a case by case basis.