Last Updated: December 1, 2021
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.
Free trials and services, including but not limited to free SOV diagnostic services, are governed by this Agreement as stated in the terms below.
If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority bind that organization to this Agreement.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING THE SERVICES (INCLUDING ANY FREE TRIALS OR SERVICES), YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.
Modifications: From time to time, Archipelago may modify this Agreement. Unless otherwise specified by Archipelago, changes become effective upon renewal of the then-current Subscription Term (defined below) following the date the updated version of this Agreement goes into effect. Archipelago will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term, and in any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. If Customer does not agree to the changes, Customer may terminate this Agreement in accordance with Section 4.2(b) below.
1.1. “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.
1.2. “Customer Data” means all documents, files, and materials submitted to the Services by or on behalf of Customer or Users.
1.3. “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).
1.4. “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 Services.
1.5. “Improvements” means enhancements, upgrades, error corrections, and bug fixes to the Services that Archipelago makes generally available to customers at no additional charge.
1.6. “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.
1.7. “Order Form” means an Archipelago ordering form that specifies the Services purchased by Customer under this Agreement and is agreed to by Customer (whether by signature or by online election or submission). Order Forms shall be subject to and incorporate by reference the terms of this Agreement.
1.8. “Services” means the Archipelago’s software as a service platform as described in the applicable Order Form and any Improvements thereto.
1.9. “Subscription” means the access to the Services purchased by Customer as set forth in the applicable Order Form.
1.10. “Subscription Term” means the period identified in the Order Form during which Customer, including its Users, is permitted to access and/or use the Services pursuant to the terms of this Agreement.
1.11. “Usage Data” means data and information regarding the provision or performance of the Services or 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 Services, 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.
1.12. “User” means an employee of Customer, or of an Affiliate or client of Customer, or of an insurance broker, or underwriter of any of the foregoing, authorized by Customer to access and/or use the Services under Customer’s account. If Customer wishes to authorize individuals not listed above, it may do so with Archipelago’s prior written consent on a case by case basis.
2.1. Provision of Services. Subject to Customer’s compliance with the terms of this Agreement, Archipelago shall make the Services available to Customer during the applicable Subscription Term. Archipelago shall use commercially reasonable efforts to deliver the Services in accordance with the performance standards set forth in the Service Level Addendum available at https://www.onarchipelago.com/customers/sla. Archipelago may update the content, functionality, and user interface of the Services and may release Improvements and other features and functionality from time to time in its sole discretion. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Archipelago with respect to future functionality or features.
2.2. Access Rights. Customer shall have a non-exclusive, non-sublicensable, non-transferable (except as specifically permitted in this Agreement) right to access and use the Services pursuant to this Agreement during the applicable Subscription Term, solely for Customer’s internal business purposes subject to the terms of this Agreement and the applicable Order Form. Customer may allow its Users to access and/or use the Services subject to the restrictions and limitations set forth herein, provided that Customer is responsible for the acts and omissions of its Users and their compliance with Customer’s obligations under this Agreement.
2.3. Customer-Controlled Data Sharing. Customer may, at its option and in its sole discretion, grant Users access to Customer Data within the Services. Customer acknowledges and agrees that: (1) 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; and (2) 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 Services.
2.4. Usage Restrictions. Customer and its Users will use the Services 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, or algorithms relevant to the Services; (ii) copy, in whole or in part, the Services or any component thereof; (iii) modify, enhance, translate, combine with other programs, or create derivative works based on the Services; (iv) sublicense, sell, rent, lease, or transfer the Services, or use the Services for timesharing or service bureau purpose; (v) remove any proprietary notices or labels; (vi) use the Services outside the scope expressly permitted hereunder or in violation of Archipelago’s User Terms of Service; (vi) use the Services if Customer or a User is a competitor of Archipelago, or for purposes of monitoring the Services’ availability, performance or functionality, or for any other benchmarking or competitive purposes; or (vii) use the Services in a manner that interferes with or disrupts the integrity, security, or performance of the Services (or any data contained therein). Customer acknowledges and agrees that the Services are not designed to comply with any industry-specific regulations including but not limited to 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 Services 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 Services that, in Archipelago’s sole judgment threatens the security, integrity, or availability of the Services, or violates any of the foregoing restrictions may, in addition to Archipelago’s other remedies hereunder, result in immediate suspension of the Services. Archipelago reserves the right to throttle or limit the Services in the event of excessive bandwidth, storage, or other usage which Archipelago determines could adversely impact performance or cost of the Services or any component thereof.
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. Security; Protection of Customer Personal Data. Archipelago shall 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/customers/security. To the extent that Archipelago processes any Personal Data (as defined in the DPA referenced below) provided by or on behalf of Customer or its Users in the provision of the Services, the terms of the data processing addendum at https://www.onarchipelago.com/customers/dpa (as may be updated by Archipelago if required by applicable law) ("DPA") shall 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 shall be treated as signing of the DPA (including the Standard Contractual Clauses and their Appendices).
2.7. Compliance. Customer is solely responsible for all Customer Data, including but not limited to the accuracy, quality, legality, reliability, and appropriateness thereof. Customer shall 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 shall promptly notify Archipelago if it becomes aware of any unauthorized use or access to Customer’s account or the Services.
2.8. Non-Archipelago Services. Archipelago or third parties may make available third-party products or services, including, for example, non-Archipelago applications. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-Archipelago provider, product, or service is at Customer’s discretion and solely between Customer and the applicable non-Archipelago provider. Archipelago does not warrant or support non-Archipelago applications or other non-Archipelago products or services (collectively, “Non-Archipelago Services”), whether or not they are designated by Archipelago as “certified” or otherwise. Archipelago is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by any Non-Archipelago Service or service or its provider.
2.9. 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 shall confirm such deletion and discontinuance of use in writing and Archipelago shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable.
2.10. Machine Learning. The Services include machine learning that develops over time by using data, including Customer Data, to develop data categories, datasets, schema, models, parameters, and other elements(collectively, “Parameters”) to discover new correlations, relationships, aggregations, summary data, trained algorithms, trained models, optimizations, predictions, patterns, and other output generated by employing artificial intelligence techniques (collectively, “Correlations”). Correlations are not specific to the Customer Data and will not include information that identifies Customer or Users. As such, while Customer owns the Customer Data as set forth in this Agreement, Customer agrees that Archipelago will own all right, title, and interest in and to such Parameters and Correlations. Similarly, Customer agrees that notwithstanding anything else to the contrary in this Agreement, Archipelago is also free to use any General Knowledge that results from access to or work with Customer Data. For purposes of this Agreement, “General Knowledge” means information, ideas, concepts, know-how, techniques, and/or skills of a general nature that are retained in the minds of Archipelago personnel as a result of working with or access to Customer Data.
2.11. Beta Services. Archipelago may from time to time, offer Customer access (which Customer may accept or decline in its sole discretion) to services or functionality for Customer to try at no charge, which services are designated as beta, trial, free, pilot, 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 (all of the foregoing referred to collectively as “Beta Services”). Use of Beta Services is permitted only for Customer’s internal evaluation during the period designated by Archipelago (or if not designated, thirty (30) days). Beta Services are optional and either party may terminate Beta Services at any time for any reason. Customer acknowledges and agrees that with respect to Beta Services, notwithstanding anything to the contrary in this Agreement or any Order Form or Documentation, the following terms shall apply: (i) Beta Services are provided “AS-IS” and “AS AVAILABLE,” f; (ii) Beta Services may be inoperable, incomplete, or include features that Archipelago may never release; (iii) Beta Services, including related features and performance information, are Archipelago’s Confidential Information. (iv) Archipelago shall have no warranty, indemnity, support, or other obligations with respect to Beta 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 Beta Services shall not exceed U.S. $500; and (iii) Customer acknowledges that any data, including Customer Data, entered into any Beta Services during a free trial 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.
3.1. Fees and Payment. Customer shall pay amounts set forth in an applicable Order Form (“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. Customer’s Subscription Fees are set forth in the applicable Order Form and are payable annually in advance within thirty (30) days of the invoice date. Customer is responsible for providing complete and accurate billing information to Archipelago. Customer shall 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 shall 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 shall provide the purchase order number at the time of purchase.
3.2. Suspension for Failure to Pay. Archipelago reserves the right to suspend Customer’s account, in addition to all of its other available rights and remedies, in the event that Customer’s account becomes overdue and is not brought current within ten (10) business days following written notice (email acceptable) from Archipelago that such account is past due. Late and/or unpaid amounts shall be subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all costs of collection. Suspension shall not relieve Customer’s obligation to pay amounts due. Archipelago will not exercise its rights under this subsection if Customer has disputed the applicable charges in writing reasonably and in good faith as provided above and is cooperating diligently to resolve the dispute.
3.3. Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including but not limited to 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 shall 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. If applicable, Customer shall remit any withholding to the relevant authority on a timely basis and provide to Archipelago documentation to evidence payment of such withholding Taxes. Customer shall be responsible for any Taxes, 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 shall provide proof of such exemption to Archipelago without undue delay upon execution of the applicable Order Form.
3.4. Authorized Reseller. For any Services 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 shall not apply (except for Archipelago’s suspension rights under Section 3.2 above). While all other terms of this Agreement shall continue to apply exclusively to Archipelago and Customer as stated herein, Customer shall contract directly with the applicable Authorized Reseller with respect to payment for the purchase of the Services provided hereunder.
4.1. Term. The term of this Agreement commences on the Effective Date and shall, unless earlier terminated per Section 4.2 below, remain in effect until all Subscriptions to the Services granted in accordance with this Agreement have expired or been terminated (“Term”).
4.2. Termination. (a) Either Party may terminate this Agreement or any Order Form 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 (Usage 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. (b) Customer may terminate this Agreement on written notice to Archipelago if Customer does not agree to changes made by Archipelago to this Agreement as first set forth in this Agreement above by delivering to Archipelago written notice of such termination within thirty (30) days of the date Customer first receives notice from Archipelago of such change made to this Agreement.
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 shall make Customer Data available to Customer for export. After such thirty (30) day period, Archipelago shall have no obligation to maintain or provide any Customer Data and shall 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 and any other rights granted to Customer under this Agreement shall immediately terminate, and Customer shall immediately cease all use of the Services. Upon any termination by Customer pursuant to Section 4.2 above, Archipelago shall 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 shall 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 Services in the period prior to the effective date of termination. The following sections shall survive expiration or termination of this Agreement: Sections 1 (Definitions), 2.3 (Usage Restrictions), 2.10(c) (Beta Services Disclaimer), 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).
5.1. 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, designs, specifications, business plans and information (including but not limited to sales and marketing information), security systems, financial information, employees, contractors, and customers. Confidential Information of Customer includes Customer Data; Confidential Information of Archipelago includes information regarding Archipelago’s current and planned products and services including but not limited to the Services, and the terms and conditions of this Agreement and all Order Forms (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 counter-party 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.
6.1. By Customer. As between Archipelago and Customer, Customer shall 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 maintain, provide, develop, and improve the Services, and as otherwise expressly permitted under this Agreement; (c) to prevent or address technical or security issues and resolve support requests; (d) to investigate in good faith an allegation that Customer or any User is in violation of this Agreement; (e) at Customer's direction or request or as otherwise permitted in writing by Customer; and (f) as required by law.
6.2. By Archipelago. As between Archipelago and Customer, Archipelago and its licensors own and shall retain all right, title, and interest, including all related Intellectual Property Rights, in and to the following (including any and all enhancements, customizations, modifications, and derivative works thereof): the Services, Documentation, Derived Data, Usage Data, Parameters, and Correlations. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.3. Third Party Data. The Services may include access for Customer to various third party data and Archipelago data that is utilized with or provided by the 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 Services and as may be embedded in the output of the Services provided by Archipelago to Customer hereunder. Content includes data compiled from third party sources, including but not limited to, 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 makes any representations or warranties regarding the Content or assumes any responsibility for the accuracy, completeness, or currency thereof. Archipelago grants to Customer a non-sublicensable, non-transferable, non-exclusive license to use any reports and other output developed by Archipelago for Customer as a result of, or otherwise made available to Customer in connection with, the Services including any Content therein solely in conjunction with Customer’s authorized use of the Services and in accordance with this Agreement.
6.4. Usage Data and Derived 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 permitted under this Agreement, provided, however, that Archipelago shall not publish any Usage Data or Derived Data except to the extent such data is aggregated and de-identified such that neither Customer nor Users is identifiable therein.
6.5. Suggestions. Archipelago welcomes feedback from its customers about the Services. If Customer or any User provides Archipelago with any feedback or suggestions regarding the Services (“Feedback”), Archipelago may use, disclose, reproduce, sublicense, or otherwise distribute, and exploit the Feedback without restriction or any obligation to Customer or any User. Archipelago shall not identify Customer or any User as the source of such Feedback.
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. Service Warranty. Archipelago represents and warrants during the applicable Subscription Term that (a) the Services shall perform materially in accordance with the applicable Documentation, and (b) Archipelago shall not materially degrade the functionality of the Services 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 Services, as Archipelago’s sole liability and Customer’s exclusive remedy, Archipelago shall correct any material reproducible impairments to the features and functionality of the Services so that they comply with the foregoing warranty, and if Archipelago is unable to provide the Services as warranted within a commercially reasonable time following receipt of written notice of such breach, Customer shall 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.
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. EXCEPT AS EXPRESSLY PROVIDED FOR IN SECTIONS 7.1 AND 7.2 ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, DOCUMENTATION, CONTENT, NON-ARCHIPELAGO SERVICES, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY AND ITS AFFILIATES AND THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THE RELIABILITY, TIMELINESS, SUITABILITY, OR ACCURACY OF THE SERVICES, NOR DOES COMPANY 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 (INCLUDING, WITHOUT LIMITATION, ANY PREDICTIONS OR ANALYTICS INCLUDED IN SUCH RESULTS), AND CUSTOMER IS SOLELY RESPONSIBLE FOR ITS USE AND RELIANCE ON ANY SUCH RESULTS. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE, OR THAT COMPANY WILL CORRECT ALL DEFECTS OR PREVENT THIRD PARTY DISRUPTIONS OR UNAUTHORIZED THIRD PARTY ACCESS. COMPANY 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.
8.1. 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 SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.2. Limit of Liability. EXCEPT AS SPECIFIED BELOW, AND FOR CLAIMS FOR AMOUNTS DUE HEREUNDER, IN NO EVENT SHALL 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 HEREUNDER (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY CUSTOMER TO COMPANY UNDER THE APPLICABLE ORDER FORM 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) SHALL NOT EXCEED TWO (2) TIMES THE GENERAL LIABILITY CAP (“SPECIFIC LIABILITY CAP”). IN NO EVENT SHALL EITHER PARTY OR ITS RESPECTIVE AFFILIATES BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE SPECIFIC LIABILITY CAP, NOR SHALL 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 SHALL 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.
9.1. Indemnification By Archipelago. Archipelago shall defend Customer, its employees, directors, officers and Affiliates (“Customer Indemnitees”) from and against any claim, demand, suite, 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 Services infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of such third party (each, a “Claim Against Customer”), and Archipelago shall indemnify and hold Customer Indemnitees harmless against 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 Services other than as permitted under this Agreement; (b) use of the Services 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 Services 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 Services 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 Services and in such case shall 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 shall 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 Services or use of the results thereof by Customer or its Users (each, a “Claim Against Archipelago”), and Customer shall 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 shall not constitute a waiver of the indemnitee’s right to indemnification and shall 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 without the indemnitee’s prior written consent (which shall not be unreasonably withheld or delayed) if settlement would require the indemnitee to admit fault or take or refrain from taking any action or otherwise imposes any obligation or liability on the indemnitee.
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 Services, 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 Services 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 Services 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. Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
10.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.6. 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) 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.
10.7. 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.
10.8. Informal Dispute Resolution and Arbitration. 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, shall 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 shall 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 shall 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 but not limited to unauthorized disclosure of Confidential Information, infringement of a Party’s Intellectual Property Rights, and enforcement of an arbitration award hereunder), and that either Party shall be entitled to seek equitable relief (without the requirement of posting a bond or other security) in any court of competent jurisdiction in addition to any other remedies such Party may have under this Agreement.
10.9. Notices. Archipelago may give general notices related to the Services that are applicable to all customers by email, text, in-app notifications, or by posting them on the Archipelago website or through the Services, and such electronic notices shall 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, shall 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. 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.
10.10. 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 Services 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 Services were developed fully at private expense. All other use is prohibited.
10.11. 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.
10.12. 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 but not limited to 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 shall 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.
10.13. Entire Agreement; Order of Precedence; Headings; Interpretation. This Agreement, including all Archipelago policies and agreements referred to herein, and all Order Form(s) hereunder, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces all prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to such subject matter. 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) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement. As used in the Agreement, (a) “include” and “including” mean “including, without limitation,” and (b) “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.
