Terms of service

Effective Date: July 7, 2021

TERMS OF SERVICE

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (DEFINED BELOW) OR ACCESSING OR USING THE 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.

FREE TRIALS, INCLUDING BUT NOT LIMITED TO FREE SOV DIAGNOSTICS, AND OTHER FREE SERVICES ARE GOVERNED BY THE APPLICABLE PROVISIONS OF THIS AGREEMENT.

IF YOU ARE USING THE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP, OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

MASTER SUBSCRIPTION AGREEMENT

This Master Subscription Agreement (“Agreement”) is made and entered into by and between Archipelago Analytics, Inc., a Delaware corporation with offices located at 8 California Street, San Francisco, CA 94111 (“Company”) and the entity or person placing an order for or accessing the Services (“Customer”). The “Effective Date” is the date of Customer’s initial access to the Services (as defined below) through any online provisioning, registration, or order process.

Modifications to this Agreement: From time to time, Company may modify this Agreement. Unless otherwise specified by Company, changes become effective for Customer upon renewal of the then-current Subscription Term (defined below) following the date the updated version of this Agreement goes into effect. Company 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 (Termination) below.

1.     DEFINITIONS

1.1. “Affiliate” means any entity that directly or indirectly 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 of the subject entity.

1.2. “Customer Data” means all information, data, files, and other materials submitted by or on behalf of Customer or any User to the Services.

1.3. “Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to Customer that describe the technical functionality, features, or requirements of the Services.

1.4. “Improvements” means enhancements, upgrades, error corrections, and bug fixes to the Services made generally available by Company at no additional charge.

1.5. “Intellectual Property Rights” means (a) unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, moral rights, know-how and other 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 thereof now or hereafter in force of the foregoing, (d) and all forms of protection of a similar nature anywhere in the world.

1.6.  “Order Form” means an ordering document that specifies the Services purchased by Customer under this Agreement that is entered into by Customer and Company. Order Forms shall be subject solely to and incorporated by reference the terms of this Agreement. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement.

1.7.    “Services” means Company’s software as a service platform and all related components, including any Improvements, as described in the applicable Order Form.

1.8.    “Subscription” means the access to the Services purchased by Customer as set forth in the applicable Order Form.

1.9.    “Subscription Term” means the period identified in the Order Form during which Customer’s Users are permitted to use or access the Services pursuant to the terms set forth in this Agreement.

1.10.   “Term” has the meaning set forth in Section 4.1 below (Term).

1.11.   “Usage Data” means data and information (a) derived from Customer Data using Company’s models and schema, data that is aggregated by Company (including aggregations with data sourced from other customers of the Company and other third party data sources), and (b) regarding provision, use, and performance of the Service, and Customer’s access to and use of the Service, including, without limitation, all data (including metadata) collected, generated or derived from use of the Services by or on behalf of Customer or any of its Affiliates, personnel or Users including but not limited to navigational, transactional, processing, computer (such as IP address and browser), demographical, statistical and other analytical data, statistical usage data derived from the operation of the Services and configurations, log data, and the performance results for the Service.

1.12.   “User” means an employee of Customer its or of an Affiliate of Customer that has entered into an Order Form with Company under this Agreement, and/or Customer’s insurance brokers or underwriters, authorized by Customer to use the Services under Customer’s account. If Customer wishes to provide access to additional individuals not listed above, it may do so with Company’s prior written consent on a case by case basis.

2.     SERVICES

2.1.  Provision of Services. Company shall make the Services available to Customer and its Users pursuant to this Agreement during the applicable Subscription Term and in accordance with the performance standards set forth in the Service Level Addendum available at https://www.onarchipelago.com/customers/sla. Company will provide the Services in accordance with the performance and functionality applicable to the version of the Order Form by Customer. Subject to Section 7.1(b) below, Company 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 Company with respect to future functionality or features.

2.2.  Access Rights. Customer has 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 limitations set forth in the applicable Order Form. Customer is responsible for the performance of its Users (including but not limited to its employees, and contractors) and their compliance with Customer’s obligations under this Agreement.

2.3.  Usage Restrictions. Customer is responsible for all activities conducted under its and its Users’ logins on the Service. Customer shall use the Services in compliance with applicable law and shall not: (a) make the Services available to, or use any Services for the benefit of, anyone other than Customer and its Affiliates; (b) rent, sublicense, re-sell, lease, time-share, distribute, pledge, assign, or otherwise similarly exploit the Service, or make it available to anyone other than its Users; (c) reverse engineer, hack the Service, or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) access the Service, the Documentation, or Company’s Confidential Information to build a competitive product or service or to copy its features or user interface; (e) allow User Subscriptions to be shared or used by more than one individual User (except that User Subscriptions may be reassigned to new Users replacing individuals who no longer use the Services for any purpose, whether by termination of employment or other change in job status or function); (f) send or store infringing, obscene, threatening, or otherwise unlawful material including material violative of third-party privacy rights in connection with the Service; (g) store or transmit viruses, worms, time bombs, Trojan horses, or  other harmful or malicious code, files, scripts, agents or programs to or through the Service; (h) disrupt the integrity or performance of, the Services or the data contained therein; (i) modify, copy, adapt, or create derivative works based on the Service, or any portion thereof; (j) remove, alter, add to, or fail to reproduce, in and on the Services (or permit any third party to do any of the foregoing) the name of Company and any proprietary trademark, copyright markings, or other notices incorporated in, market on, affixed to, or otherwise appearing in or on the Services or which may be required by Company at any time; (k) disclose any benchmarking, competitive analysis, or other results obtained from use of the Service, (l) frame or mirror any part of any Services or Content, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; or (m) use the Services in a manner that interferes with or disrupts the integrity or performance of the Services (or the date contained therein). Any use of the Services in breach of this Agreement, Documentation or Order Forms, by Customer or Users that, in Company’s sole judgment threatens the security, integrity, or availability of the Service, may, in addition to Company’s other remedies hereunder, result in Company’s immediate suspension of the Service. Company reserves the right to throttle or limit the Services in the event of excessive bandwidth, storage, or other usage which Company determines could adversely impact on costs and/or performance of the Services or any component thereof.

2.4.  Administration of Customer’s Account. Customer acknowledges that it retains administrative control over to whom it grants access to Customer Data hosted in the Service. Customer may specify one or more Users as administrators (each an “Administrator”) to manage its account, and Company 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.

2.5.  Security; Protection of Customer Personal Data. Company 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 Company’s Data Security standards available at https://www.onarchipelago.com/customers/security.  If Customer Data includes Personal Data, as defined in Company’s Data Processing Addendum (“DPA”), the terms of the DPA shall be incorporated into this Agreement.

2.6.  Compliance. Customer is responsible for use of the Services by its Users and for their compliance with this Agreement. Customer is solely responsible for all Customer Data, including but not limited to the accuracy, quality, legality, reliability, and appropriateness of all Customer Data. Customer shall ensure that it is entitled to transfer the relevant Customer Data to Company so that Company and its service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer shall promptly notify Company if it becomes aware of any unauthorized use or access to Customer’s account or the Service.

2.7.  Sensitive Information; Hazardous Use. Customer shall not use the Service, nor allow its Users to use the Service, to send or store information subject to special regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and any similar data protection laws) including without limitation: credit card information, credit card numbers and magnetic stripe information, social security numbers, driver’s license numbers, passport numbers, government issued identification numbers, health-related information, biometric or genetic data, financial account information, personally identifiable information collected from children under the age of 13 or from online services directed toward children, and real time geo-location data which can identify an individual, or information deemed “sensitive” under applicable law (such as racial or ethnic origin, political opinions, or religious or philosophical beliefs). Customer further represents and warrants that it will comply with all applicable laws, regulations, self-regulatory guidelines, and Customer’s privacy policy with respect to the collection, transfer, and use of any personally identifiable information in connection with the Service, including proper disclosure and receipt of all required consents from each individual to transfer such personally identifiable information to Company. Further, Customer acknowledges and agrees that the Services and any other Company offerings are not fault-tolerant and are not designed or intended for use in any hazardous environment or any environment requiring fail-safe performance or operation.  For example, and without limiting the generality of the foregoing, neither the Services nor any other Company offerings are for use in the maintenance or operation of aircraft navigation, nuclear facilities, communication systems, weapons systems, direct or indirect life-support systems, air traffic control, or any application or installation where failure could result in death, severe physical injury, or property damage.  Customer agrees that it is Customer’s responsibility to ensure safe use of the Services and all other Company offerings.  Company does not warrant any third party products or services.

2.8.  Customer’s Use of Third Party Services. Customer may now or in the future have the ability to install or enable third party services for use with the Service, such as online applications, offline software products, or services that utilize a Company API in connection with Customer’s use of the Services provided that this does not include third party services or products embedded within the Service that Customer has no ability to select or install (“Third Party Services”). Any acquisition and use by Customer or its Users of such Third Party Services is solely the responsibility of Customer and the applicable third party provider. Customer acknowledges that providers of such Third Party Services may have access to Customer Data in connection with the interoperation and support of such Third Party Services with the Service. To the extent Customer authorizes the access or transmission of Customer Data through a Third Party Service, Company shall not be responsible for any use, disclosure, modification or deletion of such Customer Data or for any act or omission on the part of such third party provider or its service.

2.9.  Removal of Content. If Customer receives notice that Content 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 required action in accordance with the above, or if in Company’s judgment continued violation is likely to reoccur, Company may disable or remove the applicable Content. If requested by Company, Customer shall confirm such deletion and discontinuance of use in writing and Company shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Company is required by any third party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Company may discontinue Customer’s access to Content through the Services.

2.10.  Machine Learning. The Services include machine learning that develops over time by using data, data categories and parameters (collectively, “Parameters”), including but not limited to Customer Data, 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 Customer personnel. As such, while Customer owns the Customer Data as set forth in this Agreement, Customer agrees that Company will own all right, title, and interest in and to the Correlations developed by the Service. Similarly, Customer agrees that notwithstanding anything else to the contrary in this Agreement, Company 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 Company personnel as a result of working with or access to Customer Data.

2.11. Free Services.

(a) Free Trial. Company may make certain Service(s) available to Customer on a trial basis free of charge (“Free Trial”), including for example, diagnostic services. Free Trials shall terminate on the earlier to occur of (a) the end of the applicable free trial period, or (b) the start date of any  Subscription ordered by Customer for such Service(s), or (c) termination by Company of the Free Trial in its sole discretion. Additional trial terms and conditions may appear on a trial registration or other web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

(b)   Free Services. Company may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.11 (Free Services) and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as provided by Company  in connection with the applicable Free Services (“Free Service Limits”). Usage over the Free Service Limits is not authorized by Company and requires Customer’s purchase of additional services. Customer agrees that Company, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof at any time. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Company will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Company terminates Customer’s account, except as required by law Company will provide Customer a reasonable opportunity to retrieve its Customer Data. For purposes of this Agreement, the term “Free Services” means services or functionality that may be made available to Customer to try at its option at no additional charge and which are designated as free, pilot, beta, evaluation, limited release, developer preview, non-production, evaluation, or by other similar description. Free Services include the Services when offered for free or offered during any free trial period, as well as Free Trials.

(c)    Free Services Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, ANY ORDER FORM, OR ELSEWHERE,  INCLUDING BUT NOT LIMITED TO THE “WARRANTIES; DISCLAIMER” SECTION AND “INDEMNIFICATION BY COMPANY” SECTIONS SET FORTH BELOW, ALL FREE SERVICES 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 ACCURARY OF THE FREE 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 FREE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY DIAGNOSTICS, PREDICTIONS, OR PREDICTIVE 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 FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT COMPANY WILL CORRECT ANY 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 CONTROL, INCLUDING WITHOUT LIMITATION 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. COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATION WITH RESPECT TO THE FREE SERVICES AND NO LIABLITY OF ANY TYPE WITH RESPECT TO FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY’S LIABILITY WITH RESPECT THERETO SUCH SHALL NOT EXCEED US $500. ANY DATA CUSTOMER ENTERS INTO THE FREE SERVICES DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER EITHER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE FREE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA BEFORE THE END OF THE FREE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN THE “LIMITATION OF LIABILITY” SECTION BELOW OR ELSEWHERE IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3.     FEES

3.1. Fees and Payment. Customer shall pay fees set forth in an applicable Order Form (“Fees”) and other amounts due as follows. Unless otherwise specified in an Order Form, Subscription Fees are based on annual periods (or pro rata portions thereof, calculated on a daily basis) that begin on the Subscription start date and each annual anniversary thereof. 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 Company. Customer shall pay all undisputed Fees when due and, if such Fees are being paid via credit card or other electronic means, Customer authorizes Company to charge such Fees using Customer’s selected payment method. If Customer disputes any part of an invoice in good faith, Customer shall provide Company with notice and detail of the dispute prior to the invoice due date, and pay the undisputed portion by the invoice due date. Except as otherwise specified in an Order Form: (a) Fees are quoted and payable in United States dollars; (b) Fees are based on the terms set forth in the applicable Order Form, including but not limited to the version of the Services purchased; (c) quantities purchased cannot be decreased during the Subscription Term; (d) Subscription Fees are based on Services and not actual usage; and (e) payment obligations are non-cancelable and Fees paid are non-refundable unless otherwise provided 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. (a) Company 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 Company that such account is past due. (b) 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 a collection costs. Suspension shall not relieve Customer’s obligation to pay amounts due. Company will not exercise its rights under this Section if Customer is disputing the applicable charges reasonably and in good faith 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 Company’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 Company by an amount sufficient to fully offset the impact of such withholding tax or other taxes, such that Company will receive the full amounts due under this Agreement.  Customer agrees to use their best efforts to determine whether the withholding tax can be reduced or eliminated under an applicable tax treaty, and Company agrees to act in good faith to provide documentation necessary to evidence qualification under any such tax treaty. Customer shall remit any such withholding to the relevant authority on a timely basis and provide to Company documentation to evidence payment of such withholding taxes. Customer shall be responsible for any taxes, penalties, or interest that may apply based on Company’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 Company without undue delay upon execution of the applicable Order Form.

3.4. Authorized Solutions Partner. For any Services acquired by Customer through a third party expressly authorized by Company for such purpose (referred to for purposes hereof as an “Authorized Solutions Partner”), Sections 3.1 – 3.4 above in this Section 3 shall not apply (except for Company’s suspension rights under Section 3.2(a) above). While all other terms of this Agreement shall continue to apply exclusively to Company and Customer as stated herein, Customer shall contract directly with the applicable Authorized Partner with respect to payment for the purchase of the Services provided hereunder.

4.     TERM, TERMINATION, AND EFFECT OF TERMINATION

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. Either party may terminate this Agreement 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 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. Customer may terminate this Agreement on thirty (30) days’ prior written notice to Company if Customer does not agree to changes made to this Agreement by Company as first set forth above.

4.3. Treatment of Customer Data Following Expiration or Termination. Customer agrees that following expiration or termination of this Agreement, Company may immediately deactivate Customer’s account(s) associated with the Agreement. Upon written request by Customer received by Company within thirty (30) days after the effective date of expiration or termination, Company shall make Customer Data available to Customer for export. After such thirty (30) day period, Company 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 Service. Upon any termination by Customer pursuant to Section 4.2 above, Company 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 Company 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 Company 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), 2.7(c) (Free 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.     CONFIDENTIALITY

5.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Company includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Conf. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section also apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Company services.

5.2.  Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, Affiliates, legal counsel, and accountants (collectively, “Representatives”) who need such access for purposes consistent with this Agreement and who have either signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein or are otherwise legally bound to confidentiality requirements, provided that a party that makes any such disclosure to its Representative(s) will remain responsible for such Representatives’ compliance with 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. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party 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, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

6.     OWNERSHIP

6.1. By Customer. As between Company and Customer, Customer shall own all right, title, and interest in and to the Customer Data and Customer Confidential Information. Customer grants Company and its authorized third party service providers a worldwide, non-exclusive license to host, copy, access, process, transmit, and display Customer Data: (a) to maintain, provide, and improve the Services and perform under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) to investigate in good faith an allegation that a User is in violation of this Agreement or the Company User terms of use; and (d) at Customer's direction or request or as permitted in writing by Customer.

6.2. By Company. Company and its licensors own and shall retain all right, title, and interest, including without limitation all related Intellectual Property Rights, in and to the following (including any and all enhancements, customizations, modifications, and derivative works thereof): the Service, Documentation, Usage Data, Correlations, Parameters, and Company Confidential Information. Subject to the limited rights expressly granted hereunder, Company, its Affiliates, its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. 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 confidential and proprietary third party data that is utilized along with the Service, and all such data is owned by the applicable third party source or vendor. Customer may only use such data as part of the Services and may not extract or otherwise utilize any such data except as included in and in connection with the Service. This data is 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 or complete, or up-to-date and is subject to ongoing and continual change without notice. Neither Company nor its third party data sources make any representations or warranties regarding the data and assume no responsibility for the accuracy, completeness, or currency of the data.

6.4. Suggestions. Company welcomes feedback from its customers about the Services. If Customer (or any User) provides Company with any feedback or suggestions regarding the Services (“Feedback”), Company may use, disclose, reproduce, sublicense, or otherwise distribute and exploit the Feedback without restriction or any obligation to Customer or any Authorized User provided that Company shall not identify Customer or any User as the source of such Feedback.

7.     WARRANTIES; DISCLAIMER

7.1.  Mutual. Each party represents that (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization, (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement and the Order Form(s), (c) the execution of the Order Form(s) by its representative whose signature is set forth thereon has been duly authorized by all necessary corporate or organizational action of such party, and (d) when executed and delivered by both parties, the Order Form(s) and this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

7.2.  Service Warranty. Company warrants during the applicable Subscription Term that: (a) the Services shall perform materially in accordance with the applicable Documentation; and (b) Company shall not materially degrade the functionality of the Service. For any breach of the foregoing warranties, as Company’s sole liability and Customer’s exclusive remedy, Company shall correct any material reproducible impairments to the features and functionality of the Services so that they materially conforms to the applicable warranty, and if Company is unable to provide the Services as warranted within a commercially reasonable time following receipt of written notice of 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, warrants and covenants to Provider that Customer owns or otherwise has the necessary rights and consents in and relating to the Customer Data so that it may legally provide such Customer Data to Company 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 SERVICE, CONTENT, 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 ACCURARY 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 PREDICTIVE 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, SECURE, 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 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. EXCEPT FOR CLAIMS FOR A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) AND SUBJECT TO SECTION 8.2 BELOW, IN NO EVENT WILL EITHER PARTY OR ITS 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 FOR CLAIMS REQUIRED TO BE INDEMNIFIED UNDER SECTION 9 BELOW (INDEMNIFICATION) AND CLAIMS FOR AMOUNTS DUE HEREUNDER, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER FORM UNDER THIS AGREEMENT (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. NOTWITHSTANDING ANYTHING HEREIN, THE MAXIMUM AGGREGATE LIABILITY FOR A PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) SHALL BE TWO HUNDRED THOUSAND DOLLARS.

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 Company. Company shall defend Customer from and against any claim, demand, suite, or proceeding (“Claim”) made or brought against Customer 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 that third party (each, a “Claim Against Customer”), and Company shall indemnify and hold the Customer 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 Company-approved settlement of, a Claim Against Customer; provided, however, in no event will Company have any obligations or liability under this Section 9.1 to the extent a Claim Against Customer arises from: (a) Customer or any User’s use of the Services other than as permitted under this Agreement; or (b) use of the Services in a modified form or in combination with products, services, content, or data not furnished to Customer by Company.  If the Services become, or in Company’s reasonable judgment is likely to become, the subject of a claim of infringement, then Company may in its sole discretion: (a) obtain the right, at Company’s expense, for Customer to continue using the Service; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that it is no longer infringing. If Company, in its sole and reasonable judgment, determines that none of the above options are commercially reasonable or practicable, then Company may suspend or terminate Customer’s use of the Service, in which case Company’s sole liability and Customer’s sole remedy shall be to provide Customer with a prorated refund of any prepaid, unused Fees applicable to the remainder of the Subscription Term. This Section 9.1 states Company’s sole liability and the Customer’s exclusive remedy for claims required to be indemnified hereunder.

9.2.  Indemnification By Customer. Customer shall defend Company from and against third party Claims made or brought against Company by a third party to the extent arising in connection with  Customer Data or use of the Customer Data with the Services, any unauthorized use of the Services by Customer or its Users, or any non-Company application, product, or service provided by Customer(each, a “Claim Against Company”), and Customer shall indemnify and hold the Company harmless against any damages, reasonable attorneys’ fees, and costs finally awarded against Company as a result of, or for any amounts paid by the Company under a Customer-approved settlement of, a Claim Against Company.

9.3.  Indemnification Process. Each party’s obligations as set forth in this Article are subject to the indemnified party: (a) giving the indemnifying party prompt written notice of any such claim or the possibility thereof; (b) giving the indemnifying party sole control over the defense and settlement of any such Claim; and (c) providing full cooperation in good faith in the defense of any such claim. Failure to give prompt notice shall not constitute a waiver of the indemnified party’s right to indemnification and shall affect the indemnifying party’s obligations under this Agreement only to the extent that the indemnifying party’s rights are materially prejudiced by such failure or delay. Any settlement requiring the party seeking indemnification to admit liability or make any financial payment shall require such party’s prior written consent, not to be unreasonably withheld 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 Services, Content, other Company technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Company and Customer each 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. Neither party 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, whether by operation of law or otherwise, 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. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. There are no third-party beneficiaries under this Agreement.

10.7. Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and each party 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 their best 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 any and all disputes arising out of or in any way relating to this Agreement, including without limitation 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, CA. 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 any 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 court.

10.9. Notices. Company 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 Company 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 related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the fifth business day after mailing by prepaid certified U.S. mail return receipt requested, (c) the second business day after sending by nationally recognized courier service, or (d), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email without notice of non-delivery. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be sent to the Customer address set forth in the applicable Order Form. All notices to Company will be sent to Archipelago Analytics, Inc., 8 California Street, San Francisco, CA 94111, Attn: Legal Dept., with a copy emailed to legal@onarchipelago.com.

10.10. Government End User. If Customer 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 the 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.

10.11. Publicity. Company may include Customer’s name and logo in Company’s online customer list and in print and electronic marketing materials.

10.12. Force Majeure. Neither party will be liable for delayed or inadequate performance of its obligations hereunder (other than for payment of amounts due) 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, 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, or denial of service 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 (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations.

10.13. Entire Agreement; Order of Precedence. This Agreement, including all exhibits attached hereto, 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. Except as otherwise expressly provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. 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. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of this Agreement shall prevail except to the extent that the applicable Order Form term(s) expressly refer to and state the parties' intent to supersede specific terms of the Agreement. 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.

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