ONLINE SOFTWARE LICENSE AND SERVICES AGREEMENT
EFFECTIVE AS OF AUGUST 17, 2018
This Online Software License and Services Agreement (“Agreement”) constitutes a contract between Arcadia Data Inc., a Delaware corporation having its principal place of business at 999 Baker Way, Suite 120 San Mateo, CA 94404 (“Arcadia” or “us”) and the individual or legal entity (“Customer” or “you”) who has executed an order form (“Order Form”) or statement of work (“SOW”) as applicable referencing this Agreement. By accessing or using the Technology and/or receiving or requesting Services, you agree to be bound by this Agreement. If you are entering into this Agreement on behalf of a company, organization or other entity, you represent that you have the legal authority to bind such entity and are agreeing to this Agreement on behalf of such entity.
1.1 “Confidential Information” means all non-public information disclosed in tangible, visual or verbal form by either party to the other. Confidential Information may include, but is not limited to, the Technology, services, pricing information, computer programs, source code, names and expertise of employees and consultants, know-how, and other technical, business, financial and product development information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records (1) was rightfully known to it without obligation of confidentiality prior to its disclosure hereunder by the disclosing party; (2) is or becomes publicly known through no wrongful act of the receiving party; or (3) has been rightfully received without obligation of confidentiality from a third party authorized to make such a disclosure.
1.2 “Consumer User” means any named user who has view-only access to visuals, dashboards, or applications in Arcadia Enterprise.
1.3 “Deliverables” means any deliverables or work product prepared in connection with any Professional Services engagement.
1.4 “Documentation” means any administration guides, installation and user guides, and release notes relating to the Technology that are made available by Arcadia to Customer.
1.5 “Intellectual Property Rights” means patents, design patents, copyrights, trademarks, know-how, trade secrets, moral rights, and any other intellectual property rights recognized in any country or jurisdiction in the world (including any applications, registrations, or renewals thereto).
1.6 “Node” means each Hadoop data node, Hadoop name node, or a physical or virtual machine on which the Software is installed, configured, or otherwise operating or running.
1.7 “Power User” means any named user who has ability to edit datasets, visuals, dashboards, or applications in Arcadia Enterprise
1.8 “Professional Services” means the services provided pursuant to an SOW, if any.
1.9 “Services” mean the Professional Services, Support Services, Training, and other services provided by Arcadia under this Agreement, if any.
1.10 “Software” means the Arcadia Enterprise software product identified and described in the Order Form, if any.
1.11 “Support Services” means Arcadia’s support obligations set forth in the SOW, if any.
1.12 “System” means a server or cluster of servers on which the Technology is installed, operating, or otherwise employed.
1.13 “Technology” means the Software, Deliverables, and any other Arcadia products, components, and modules identified in an Order Form or other software or technology provided by Arcadia to Customer under this Agreement. The term “Technology” also includes any deliverables, corrections, patches, workarounds, updates and upgrades provided by Arcadia to Customer.
1.14 “Term” means the term indicated in the Order Form or SOW as applicable and any subsequent renewals.
1.15 “Training” means any training services provided by Arcadia.
2. LICENSE GRANTS AND RESTRICTIONS
2.1 License Grant. There are no implied licenses under this Agreement and Arcadia reserves all rights in and to the Technology not expressly granted to Customer under this Agreement. All Technology licensed pursuant to this Agreement is unpublished copyrighted material, constitutes trade secrets and proprietary data of Arcadia and is Confidential Information of Arcadia. Subject to Customer’s compliance with the terms and conditions of this Agreement and payment of all amounts due under Section 3, Arcadia grants to Customer during the Term a limited non-exclusive, non-sublicensable, non-transferable, revocable (pursuant to Section 8.1) license to install and use Technology specified on an Order Form (if any) solely as permitted under Section 2.2.
2.2 License Scope. Customer may install and use the Technology for its internal business purposes of storing and analyzing data in the applicable Nodes and subject to the limitations set forth in the Order Form.
2.3 Limits on Licenses. Customer may not do any of the following or permit a third party to do any of the following (in each case, directly or indirectly, in whole or in part):
2.3.(a) Transfer, sublicense, distribute, lease, rent, or commercially share (including timeshare) the Technology or any of Customer’s rights herein or provide direct access to the Technology to any of Customer’s customers or any other third party;
2.3.(b) Except as expressly stated herein, copy, reproduce, distribute, republish, download, display, posted or transmit, in any form or by any means, any part of the Technology;
2.3.(c) Remove or destroy any copyright notices or other proprietary markings contained on or in the Technology;
2.3.(d) Place a lien or encumbrance upon, or otherwise interfere with Arcadia’s ownership of and right to the Technology for any reason; or
2.3.(e) Modify, translate, reverse engineer, decrypt, decompile, disassemble, create derivative works based on, or otherwise attempt to discover the Technology source code or underlying ideas or algorithms, to the extent such restrictions are permitted by law.
2.4 Feedback. If Customer provides to Arcadia any comments, suggestions, or other feedback regarding the use, operation or functionality of the Technology, improvements to the Technology, or any applicable Services, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features (collectively, “Feedback”), then Customer hereby grants to Arcadia an unlimited, perpetual, worldwide, royalty-free, irrevocable right and license to use, distribute, create derivative works of, and otherwise exploit the Feedback for any purpose and in any manner now known or developed in the future.
3.1 Services. Arcadia agrees to provide the Services set forth in the applicable SOW, if any.
4.1 Fees. Customer agrees to pay Arcadia the fees set forth in the applicable Order Form (the “Fees”). Customer shall pay the Fees in accordance with the payment terms set forth in the applicable Order Form. Customer will be responsible for paying any taxes arising from Arcadia’s delivery and Customer’s use of the Technology or Services (excluding taxes on Arcadia’s net income).
4.2 Services Fees and Expenses. Customer shall pay Arcadia the amounts specified in any mutually agreed SOW. In addition, Customer shall reimburse Arcadia for all reasonable out-of-pocket expenses (“Expenses”) that are incurred by Arcadia in the performance of the Services, including but not limited to on-site training sessions, travel, meals, and lodging expenses, and supplemental material and supply costs. Arcadia shall provide Customer documentation of such Expenses upon request.
4.3 Late Payments. Fees or Expenses not paid on or before the applicable due date will incur interest beginning on such date due at the lower of 1.5% per month or the maximum rate allowed by law; provided, however, no interest shall accrue until seven (7) days after written notice (by email otherwise) from Arcadia to Customer that such Fees or Expenses is becoming due or past due.
5. WARRANTIES; DISCLAIMER OF WARRANTIES.
5.1 Limited Warranty. Arcadia warrants that the Services will be performed in a professional and workmanlike manner. This limited warranty shall not apply unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared. Customer’s sole and exclusive remedy for a breach of warranty shall be reperformance of the Services giving rise to such breach in a commercially reasonable period of time following notice thereof. If Arcadia can not or does not cure the breach through reperformance, then Customer may elect to terminate the specific Services by written notice to Arcadia and receive a refund of any pre-paid fees allocated to the specifically defective Service (or if such Service were provided pursuant to a credit, then such credits may be re-applied by Customer to another Service).
5.2 Disclaimers. Other than the limited warranty provided above in Section 5.1, the Technology, Services, and Documentation are provided to Customer “AS IS” and any use of the Technology, Services, Documentation, and all other services or materials provided under this Agreement by Arcadia is at Customer’s own risk. OTHER THAN THE LIMITED WARRANTY PROVIDED ABOVE IN SECTION 5.1, ARCADIA AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ARCADIA AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION THAT: (1) THE TECHNOLOGY OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (2) CUSTOMER’S USE OF THE TECHNOLOGY OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TECHNOLOGY OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE TECHNOLOGY OR SERVICES WILL BE CORRECTED. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS TO CUSTOMER’S PROPERTY OR ANY PERSON, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S COMPUTER SYSTEM, LOSS OF DATA, OR ANY OTHER LOSS RELATED TO OR ARISING FROM THE TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT.
6.1 Arcadia Ownership of Technology. Arcadia and its licensors retain all rights, title, and interest, and all Intellectual Property Rights, in and to the Technology and Documentation, including any modifications, enhancements maintenance releases, corrections, patches, releases, workarounds, updates and upgrades thereto arising from the Services or otherwise.
6.2 Open Source Materials. The Technology may include certain components licensed under open source licenses as identified in the applicable Documentation. Arcadia will, upon written request, provide the source code of applicable open source software components and libraries included in the Technology, as required by their respective license agreements. Such open source components are not subject to the terms and conditions of Sections 2.1-2.3 or 6.1 of the Agreement. Instead, each such item is licensed under the terms of the open source license identified in the applicable Documentation. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable open source license for the open source component.
7. REPORTING AND VERIFICATION
7.1 Reporting. At Arcadia’s written request, not more frequently than twice annually, Customer shall furnish Arcadia with a signed certification accurately confirming the extent to which the Technology is being used pursuant to the provisions of this Agreement. If available, Customer will use reporting features contained within the Technology to generate and deliver such reports to Arcadia.
7.2 Records. During the Term and for a period of one (1) year thereafter, Customer will maintain complete and accurate books, records and electronic backups in connection with its use of the Technology, in sufficient detail to verify Customer’s compliance with the terms and conditions of this Agreement. At Arcadia’ written request and expense, Customer will provide Arcadia a copy of such books and records to verify compliance and such information shall be treated as Customer Confidential Information.
8. TERM AND TERMINATION
8.1.(a) Arcadia may terminate this Agreement and the licenses granted under this Agreement if Customer (i) fails to pay Fees or Expenses due under this Agreement and fails to cure such non-payment upon 15 days notice, (ii) breaches Sections 2.1-2.3 or 8 of the Agreement and fails to cure such breach upon 15 days notice, or (iii) subject to Section 8.1(c) below, materially breaches this Agreement and fails to cure such breach upon 30 days notice.
8.1.(b) Customer may terminate this Agreement and the licenses granted under this Agreement if Arcadia materially breaches this Agreement and fails to cure such breach upon 30 days notice, subject to Section 8.1(c) below.
8.1.(c) Notwithstanding anything to the contrary in Sections 8.1(a)(iii) or 8.1(b), the breach of any Order Form, SOW or particular Service will not give either Party the right to terminate the entire Agreement and the licenses to all the Technology unless such breach materially impacts the entire Agreement and all of the Technology. In the case of a material breach of any Order Form, SOW or particular Service that is not cured within 30 days’ notice, such particular Order Form, SOW or Service may be terminated if not cured upon 30 days’ notice.
8.2 Effects of Expiration or Termination. Upon expiration or termination of this Agreement for any reason, all licensed rights granted to Customer in this Agreement will immediately cease, and Customer will promptly discontinue all use of the Technology and Documentation, erase all copies of the Technology and Documentation from Customer’s computers or in its possession or control, and return to Arcadia or destroy all copies of the Technology, Documentation and any other Arcadia Confidential Information on tangible media in Customer’s possession or control and certify in writing to Arcadia that it has fully complied with these requirements. All credits for Services under the Appendices expire upon termination or expiration. In addition, all Fees that would arise during the Term will become due and payable upon early termination of this Agreement, unless Customer is terminating Arcadia for uncured material breach as described above.
8.3 Survival. The following provisions of this Agreement will remain in effect following the expiration or termination of this Agreement for any reason: 4 (Payment), 5.2 (Disclaimers), 6 (Ownership), 7 (Reporting and Verification), 8.2 (Effects of Termination), 8.3 (Survival), 9 (Indemnification), 10 (Limitations of Liability), 11 (Confidentiality), and 12 (General).
9.1 Arcadia Indemnity. Arcadia will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that Customer’s use of the Technology in accordance with the terms and conditions of this Agreement infringes any U.S. patent, copyright, or trademark, and Arcadia will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Arcadia’s obligations hereunder are conditioned upon Customer (i) promptly notifying Arcadia in writing of such action, (ii) giving Arcadia sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating with Arcadia and, at Arcadia’s request and expense, assisting in such defense. In the event of an infringement claim or if such a claim seems likely, Arcadia may, at its option, either (i) procure for Customer the right to continue using the allegedly infringing Technology or (ii) replace or modify the allegedly infringing portion of the Technology so that it becomes non-infringing. Notwithstanding the foregoing, Arcadia will have no obligation under this Section or otherwise with respect to any infringement claim based upon Customer’s use of the Technology not in accordance with this Agreement, any modification of the Technology not made by Arcadia, any combination of the Technology with technology not provided by Arcadia, or Arcadia’s compliance with Customer’s specifications or instructions (each an “IP Exception”). This Section 8.1 states Arcadia’s s liability and Customer’s sole and exclusive remedy for intellectual property infringement claims and actions.
9.2 Customer Indemnity. Customer will defend at its own expense any action against Arcadia brought by a third party to the extent that the action is based upon (i) Customer’s use of the Technology in violation of law or regulation or breach of Section 12.4, (ii) Customer’s use of the Technology to process data or personal information in violation of third party rights (including privacy rights) or breach of Section 12.3, or (iii) an IP Exception, and Customer will pay those costs and damages finally awarded against Arcadia in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Customer’s obligations hereunder are conditioned upon Arcadia (i) promptly notifying Customer in writing of such action, (ii) giving Customer sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating with Customer and, at Customer’s request and expense, assisting in such defense.
10. LIMITATIONS OF LIABILITY
10.1 Exclusion of Certain Damages. EXCEPT FOR THE INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION, OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR RELIANCE DAMAGES, OR ANY DAMAGES ARISING FROM LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE TECHNOLOGY, DOCUMENTATION, OR SERVICES, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF, OR COULD REASONABLY HAVE PREVENTED, SUCH DAMAGES.
10.2 Limitation of Damages. EXCEPT FOR THE INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S CONFIDENTIAL INFORMATION, INDEMNIFICATION OBLIGATIONS, OR UNPAID FEES OR EXPENSES, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING THE TECHNOLOGY, DOCUMENTATION, AND SERVICES) WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE TECHNOLOGY OR SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY. THIS LIMITATION OF A LIABILITY IS AN AGGREGATE CAP AND NOT A PER-CLAIM CAP. CUSTOMER AGREES THAT ARCADIA’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 10 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.
Neither party will use any Confidential Information of the other party except as expressly permitted in this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than a commercially reasonable standard of care. Neither party may disclose the other party’s Confidential Information to any person or entity other than to those employees and contractors who need access to such Confidential Information solely for the purpose of fulfilling that party’s obligations or exercising that party’s rights hereunder. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (1) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party prior to such disclosure; or (2) on a confidential basis to its legal and financial advisors. In addition, each party may disclose the terms and conditions of this Agreement: (i) as required under applicable securities regulations; and (ii) on a confidential basis to private investors in or acquirers of such party.
12.1 Export. The Technology and related technical data may be subject to U.S. export control laws, including without limitation the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer shall comply with all such regulations and agrees to obtain all necessary licenses to export, re-export, or import the Technology and related technical data.
12.2 No Agency. Arcadia and Customer each acknowledge and agree that the relationship established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (1) give either party the power to direct or control the day-to-day activities of the other; (2) deem the parties to be acting as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (3) permit either party or any of either party’s officers, directors, employees, agents or representatives to create or assume any obligation on behalf of or for the account of the other party for any purpose whatsoever.
12.3 Data Rights. Customer warrants and represents that it has obtained all rights, licenses, consents and waivers and permissions from the legitimate owners of the Customer data to allow the analysis of the information and creation of reports through the Technology.
12.4 Compliance with Laws. Each party agrees to comply with all applicable laws, regulations, and ordinances relating to their performance hereunder. Without limiting the foregoing, Customer warrants and covenants that it will comply with all then current laws and regulations of the United States and other jurisdictions relating or applicable to Customer’s use of the Technology.
12.5 Non-Solicit. During the Term and for 12 months after termination or expiration of this Agreement, neither party will offer employment to or otherwise solicit employees of the other party whom it is made aware in connection with this Agreement without the prior written consent of the employing party. Notwithstanding the foregoing, this provision shall not restrict the right of either party to indirectly solicit the other party’s employees via public job postings or recruitment activities not specifically targeted at the other party’s employees.
12.6 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
12.7 Notices. Any notice required or permitted hereunder shall be in writing and shall be delivered as follows (with notice deemed given as indicated): (1) by personal delivery when delivered personally; (2) by established overnight courier upon written verification of receipt; (3) by facsimile or email transmission when receipt is confirmed in writing; or (4) by certified or registered mail, return receipt requested, upon verification of receipt. Either party may change its contact person for notices and/or address for notice by means of notice to the other party given in accordance with this Section. Notices shall be sent to the following:
999 Baker Way, Suite 120
San Mateo, CA 94404
To Customer: At the address provided in the most recent Order Form.
12.8 Governing Law; Venue and Jurisdiction. This Agreement shall be interpreted according to the laws of California without regard to or application of choice-of-law rules or principles. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Mateo County, California and the parties hereby consent to the personal jurisdiction and venue therein.
12.9 Injunctive Relief. The parties agree that monetary damages would not be an adequate remedy for the breach of certain provisions of the Agreement, including, without limitation, all provisions concerning infringement, confidentiality and nondisclosure, or limitation on permitted use of the Technology. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable injury. Accordingly, either party shall have the right to seek injunctive relief or similar equitable remedies to enforce such party’s rights under the pertinent provisions of the Agreement, without limiting its right to pursue any other legal remedies available to it.
12.10 Entire Agreement and Waiver. This Agreement and any schedules or appendices hereto, as well as any and all Order Forms or SOW executed by both parties and referencing this Agreement, shall constitute the entire agreement and contains all terms and conditions between Arcadia and Customer with respect to the subject matter hereof and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby. The terms of this Agreement shall control in the event of any inconsistency with the terms of any Order Forms or SOW. This Agreement may be changed only by written agreement signed by both Arcadia and Customer. No failure of either party to exercise or enforce any of its rights under this Agreement shall act as a waiver of subsequent breaches; and the waiver of any breach shall not act as a waiver of subsequent breaches.
12.11 Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect. The parties further agree that such provision will be revised to reflect the original intent to the maximum extent permissible under applicable law.
12.12 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the respective parties hereto, their respective successors and permitted assigns.
12.13 Assignment. Neither party may, without the prior written consent of the other party (which shall not be unreasonably be withheld), assign this Agreement, in whole or in part, either voluntarily or by operation of law, and any attempt to do so shall be a material default of this Agreement and shall be void. Notwithstanding the foregoing, Arcadia may assign this Agreement or any of its rights, benefits, and duties without the consent of Customer to its affiliate or in connection with a merger, reorganization or sale of all or substantially all relevant assets.