YuzeData Master
Subscription Agreement
This Master Subscription Agreement (“MSA”) is effective as of the effective date of an applicable signed order form (an “Order Form” and such date the “Effective Date”) and is by and between YuzeData, Inc., a Delaware corporation with a place of business at 850 New Burton Road, Suite 201, Dover, DE 19904 (“YuzeData”), and the customer set forth on the Order Form (“Customer”) (each a “Party” and together the “Parties”). Subject to Section 10.1 herein, inthe event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control.
Capitalized terms used herein shall have the meanings as set forth below or in the Order Form.
This MSA relates to Customer’s use of the YuzeData cloud-based SaaS platform and related documentation (“Platform”) that receives and analyzes or otherwise uses aggregated data from Customer (“Customer Data”) and, in some cases, Third Parties (“Third Party Data”) (such Customer Data and Third Party Data referred to collectively herein as “Source Data”), on a real-time basis to automatedly identify one or more conditions based upon which Insights & Actions should be generated (“Data Event”) for Use Cases and deliver such Insights & Actions to Customer systems and/or users and administrators thereof. “Insights & Actions” are insights, alerts, calls to action, data and/or other information or actions to help Customer operate, manage and/or understand its business, assets and/or operations. A “Use Case” is a specific industry application available on the Platform, and may include one or more Use Cases that Customer establishes on the Platform using the Platform’s built-in configuration tools (“Customer-Specific Use Cases”).
The Term of the MSA (including renewals, if any), the Fees for the licenses granted under this MSA and the Use Cases available to Customer on the Platform (“Authorized Use Cases”) are set forth in the Order Form.
1. LICENSES & RESTRICTIONS.
1.1. Grant of License to Customer.
Subject to the terms and conditions of this MSA and Customer’s payment of Fees, YuzeData hereby grants Customer: (a) during the Term a non-exclusive, non-transferable, non-sublicensable right to access the Platform through a user interface of the Platform specified by YuzeData and to use the Platform, including the Source Data, to generate and receive Insights & Actions for Authorized Use Cases (including Customer-Specific Use Cases if identified in the Order Form), and (b) a perpetual, non-exclusive, non-transferable, non-sublicensable right to use the Insights & Actions. Customer may designate and provide access to the Platform only to its own employees, agents and authorized contractors, and all references to Customer herein will be deemed to apply such individuals as necessary and applicable.
1.2. Grant of License to YuzeData.
Customer hereby grants YuzeData during the Term a non-exclusive, non-transferable, non-sublicensable right to receive, copy, store, modify and use Customer Data and Customer-Specific Use Cases within the Platform to generate Insights & Actions solely for, and to deliver such Insights & Actions solely to, Customer.
1.3. Additional Restrictions on License to Customer.
Customer will not: (a) frame, distribute, resell, or permit access to the Platform by, or use or operate the Platform as a service for or on behalf of, any third party; (b) interfere with, disrupt, or gain unauthorized access to the Platform; (c) successfully or otherwise, attempt to: reverse engineer, discover the underlying source code or structure of, or copy the Platform; (d) provide YuzeData any Customer Data or other data or information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (e) transfer to the Platform or otherwise use on the Platform any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Platform; (f) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Platform; (g) provide access to the Platform to an individual associated with a YuzeData competitor; (h) extract information from the Platform in furtherance of competing with YuzeData; or (i) use the Platform in violation of applicable laws.
1.4. Third Party Terms.
Third Party Data, and any third party software, included in the Platform may be subject to terms and conditions of such respective third parties. If so, YuzeData will notify Customer of such third party terms and conditions, and Customer hereby agrees to them.
1.5. Feedback; Anonymized Data.
Customer may, under this MSA, provide suggestions, enhancement requests, recommendations or other ideas or feedback to YuzeData for improving or otherwise modifying the Platform (“Feedback”). YuzeData may gather statistical data, analytics, trends and other aggregated or otherwise de-identified data derived from Customer’s use of the Platform provided that such data does not allow Customer Data to be separated from the aggregated data and identified as relating to Customer (“Anonymized Data”). Customer agrees that: (a) Feedback shall not include Customer’s or any third party’s confidential information; and (b) neither Customer nor anything in this MSA or in the parties’ dealings arising out of or related to this MSA will restrict YuzeData’s right to use, profit from, disclose, publish, keep secret or otherwise exploit (collectively “Exploit”) the Feedback and Anonymized Data, without compensating or crediting Customer or its employees or other representatives. Without limiting the foregoing, Customer grants YuzeData a fully paid-up, royalty-free, perpetual, irrevocable, assignable, transferable, worldwide, sub-licensable license to Exploit the Feedback and Anonymized Data in any way without restriction. YuzeData also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback or Anonymized Data.
2. FEES.
Customer shall pay fees to YuzeData as set forth in the Order Form (“Fees”), which may include, without limitation, one or more of Platform subscription fees, Data Event fees and Insight & Actions fees. The Fees shall be due and paid by the due dates set forth in the Order Form. If no due date is specified in the Order Form, then the Fees shall be due within thirty (30) days of invoice from YuzeData. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Customer, except for taxes on YuzeData based on YuzeData’s income or receipts.
3. TERM & TERMINATION.
3.1 Term.
This MSA commences on the Effective Date and will remain in effect through the term specified in the Order Form, and will renew if and as specified in the Order Form, unless otherwise terminated in accordance with Section 3.2 below (collectively the “Term”).
3.2. Termination.
Customer may terminate this MSA prior to the start of a renewal period by providing written notice to YuzeData of non-renewal at least thirty (30) days prior to the date on which the renewal period would otherwise commence. A Party may terminate this MSA for cause upon notice to the other Party of a material breach (which includes non-payment of Fees by the applicable due dates) if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; provided that for any breach by Customer of Section 1 YuzeData may terminate this MSA immediately without a cure period.
3.3. Effect of Termination and Survival.
Upon termination of this MSA: (a) Customer will have no further right to use the Platform and YuzeData will remove Customer’s access to same, (b) YuzeData will have no further right to use Customer Data, and (c) unless otherwise specified in writing, Customer will not be entitled to any refund of Fees paid. The following Sections will survive termination: Section 1.1(b) (license to Insights & Actions), Section 1.5 (Feedback; Anonymized Data), Section 3 (Fees), Section 4 (Ownership), Section 5 (Confidentiality), Section 7 (Representations, Warranties & Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability) and Section 10 (Miscellaneous).
4. OWNERSHIP.
YuzeData and its suppliers, as the case may be, retain all rights, title and interest in and to any and all intellectual property rights relating to the Platform, Third Party Data, Feedback and Anonymized Data, including without limitation patents, inventions, copyrights, trademarks, domain names, trade secrets and know-how. Customer and its and its suppliers, as the case may be, retain all rights, title and interest in and to any and all intellectual property rights relating to Customer Data and any other content or information Customer inputs into the Platform to configure Customer-Specific Use Cases (“Customer Configuration Content”), including without limitation patents, inventions, copyrights, trademarks, domain names, trade secrets and know-how. All rights not expressly granted by a Party are reserved.
5. CONFIDENTIALITY.
5.1. If the parties have entered into a separate mutual nondisclosure agreement, that agreement (the “Separate NDA”) will control the Parties’ use of Confidential Information disclosed under this MSA and the term of the Separate NDA shall be deemed co-extensive with the Term of this MSA for purposes of this MSA.
5.2. If the Parties have not entered into a Separate NDA, then: For purposes of this MSA, “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of YuzeData, to provide the Platform. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
5.3. The Parties agree that: (a) the Platform (including without limitation its user interface and Documentation) and Third Party Data are YuzeData Confidential Information; and (b) the (i) Customer Data, (ii) Customer Configuration Content and (iii) Insights & Actions generated for Customer, are Customer Confidential Information under this MSA or, if there is a Separate NDA, then under the Separate NDA.
6. PRIVACY.
YuzeData operates the Platform and handles Customer information, pursuant to the privacy policy available at https://www.yuzedata.com/privacy-statement-us/?cmplz_region_redirect=true&cmplz-region=us (the “Privacy Policy”).
7. REPRESENTATIONS, WARRANTIES & DISCLAIMERS.
7.1. Representations & Warranties.
Each Party represents that it has validly entered into this MSA and has the legal power to do so. YuzeData warrants that it has all necessary rights to grant the licenses granted to Customer under this MSA. Customer warrants that it has all necessary rights to grant the licenses granted to YuzeData under this MSA.
7.2. Disclaimers.
EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE PLATFORM AND THIRD PARTY DATA ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, AND YUZEDATA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT YUZEDATA DOES NOT WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INSIGHTS & ACTIONS, INFORMATION OR ADVICE OBTAINED BY CUSTOMER FROM YUZEDATA OR THROUGH THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA.
8. INDEMNIFICATION.
8.1. Indemnification by YuzeData.
YuzeData will indemnify and hold Customer harmless from any third party claim against Customer arising out of Customer’s use of the Platform or Third Party Data as permitted hereunder alleging that the Platform or Third Party Data infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret. YuzeData will, at its expense, defend such claim and pay damages finally awarded against Customer in connection therewith, including the reasonable fees and expenses of the attorneys engaged by YuzeData for such defense, provided that (a) Customer promptly notifies YuzeData of the threat or notice of such claim; (b) YuzeData will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, YuzeData will not settle or compromise any claim that results in liability or admission of any liability by Customer without prior written consent); and (c) Customer fully cooperates with YuzeData in connection therewith. If use of the Platform or Third Party Data by Customer has become, or, in YuzeData’s opinion is likely to become, the subject of any such claim, YuzeData may, at its option and expense, (i) procure for Customer the right to continue using the Platform and Third Party Data as set forth hereunder; (ii) replace or modify the Platform or Third Party Data to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by YuzeData, terminate this MSA and repay, on a pro-rata basis, any Fees previously paid to YuzeData for the corresponding unused portion of the Term for the Platform. YuzeData will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Customer; (y) modification of the Platform by anyone other than YuzeData; or (z) the combination, operation or use of the Platform with other hardware, software or data (including Customer Data) where the Platform would not otherwise be infringing. YuzeData’s total liability and obligation under this Section shall not exceed an amount of $250.000.00 (two hundred fifty thousand dollars). The provisions of this Section state the sole, exclusive, and entire liability of YuzeData to Customer and constitute Customer’s sole remedy with respect to an infringement claim brought by reason of access to or use of the Platform or Third Party Data by Customer.
8.2. Indemnification by Customer.
Customer will indemnify and hold YuzeData harmless against any third party claim arising out of: (a) Customer’s use of the Platform or Insights & Actions (except to the extent that YuzeData has an indemnity obligation to Customer), (a) breach of this MSA; or (b) alleging that Customer Data or other customer Information or content infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret; provided (i) YuzeData promptly notifies Customer of the threat or notice of such claim; (ii) Customer will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Customer will not settle or compromise any claim that results in liability or admission of any liability by YuzeData without prior written consent); and (iii) YuzeData fully cooperates in connection therewith.
9. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL YUZEDATA OR ITS AFFILIATES,OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE CUSTOMER, REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, YUZDATA’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS MSA OR THE PLATFORM WILL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, PROVIDED THAT SUCH LIMITATION SHALL NOT APPLY TO YUZEDATA’S INDEMNIFICATION OBLIGATION OR FOR BREACHES OF CONFIDENTIALITY.
10. MISCELLANEOUS.
10.1. Entire Agreement.
This MSA, any active Order Forms, and the Separate MNDA, if applicable, constitute the entire agreement, and supersedes all prior agreements, between YuzeData and Customer regarding the subject matter hereof. Without limiting the foregoing, Customer agrees that any purchasing terms and condition or like instruments that it references or submits to YuzeData shall not apply regardless of the order of the exchange of instruments.
10.2. Assignment.
Neither party may assign this MSA to a third party without the other Party’s prior written consent, except that YuzeData may assign this MSA in connection with any merger, change of control, or the sale of all or substantially all of YuzeData’s assets. Subject to the foregoing, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
10.3. Severability.
If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
10.4. Relationship of the Parties.
The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
10.5. Notices.
This MSA will be governed by the laws of the State of Illinois, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in a court of general jurisdiction in Cook County, Illinois. Customer hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Platform by Customer, its agents, or Authorized Users.
10.7. Export Compliance.
Customer shall comply with all applicable export control and economic sanction laws in connection with its access to and use of the Platform and Third Party Data and its provision of Customer Data.
10.8. Publicity and Marketing.
Subject to Customer’s advance written permission, YuzeData may use Customer’s name, logo, and trademarks solely to identify Customer as a client of YuzeData on YuzeData’s website and other marketing materials and in accordance with Customer’s trademark usage guidelines. YuzeData may share aggregated and/or anonymized information regarding use of the Platform with third parties for marketing purposes to develop and promote the Platform. YuzeData never will disclose aggregated and/or anonymized information to a third party in a manner that would identify Customer or any identifiable individual as the source of the information.
10.9. Amendments.
YuzeData may amend this MSA from time to time, in which case the new MSA will supersede prior versions. YuzeData will notify Customer not less than ten (10) days prior to the effective date of any such amendment and Customer’s continued use of the Platform following the effective date of any such amendment may be relied upon by YuzeData as consent to any such amendment. This MSA may not otherwise be amended or modified absent mutual agreement of the Parties in a signed writing.
10.10. Waiver.
YuzeData’s failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.
