This Agreement describes the legal framework under which Licensee may license Products from Data Mechanics. All references in this Agreement to the “sale” or “purchase” (or other similar terms) of any Subscription or Product shall mean the sale or purchase of a license to such Product.

Definitions

“Authorized User” means any individual (including Licensee’s employees, agents, contractors, suppliers of services, and customers  authorized to access the Product or Documentation and exercise the rights licensed by Licensee. Each Authorized User must use a unique identity to access and use the Product unless otherwise licensed, and may access the services only to the extent licensed by Licensee. 

“Cloud Infrastructure” means the computing, storage, networking, and other hardware and software infrastructure used in providing the Product. 

“Delivery” means the availability of the Product and/or Documentation by Data Mechanics to the Licensee via electronic or other means, without regard to when Licensee actually installs or uses such Product. 

“Documentation” means the instruction manuals, user guides, and other information to be made available from time to time by Data Mechanics in either printed or electronic form to the Licensee.

“Licensee Data” means all data stored by Licensee or at Licensee’s direction on the Cloud Infrastructure.

“Data Mechanics Proprietary Software” means computer programs included in the Product on which Data Mechanics claims the copyright to the source code and which is not made available under any license recognized as a free, libre or open source license (including but not limited to the GNU General Public License and other similar licenses). 

“Order” means any document agreed to between the parties which sets forth the Product licensed by the Licensee and any relevant pricing, including Licensee’s electronic agreement giving Licensee access to the Data Mechanics’ platform including the Product.

Product” means, collectively, the product(s) and services set forth in any Order (to the extent such product(s) are subsequently made available to Licensee by Data Mechanics), as well as any Update made available to Licensee by Data Mechanics.

Subscription” means licenses to the Product, Documentation, and Support Services.

“Update” means such enhancements, modifications, or additions to the Product or Documentation as may be made available from time to time by Data Mechanics to Licensee.

General Terms and Conditions


1. Orders; Subscriptions; Delivery; Support. 


1.1 During the Term of this Agreement, and subject to Licensee’s compliance with the terms and conditions hereof, including the payment of the applicable fees, Licensee may subscribe to Products and Support by agreeing to this Agreement. The Product and Support is licensed pursuant to Subscriptions. 


1.2 Unless otherwise agreed to, all Products, Updates and Documentation licensed by Licensee pursuant to this Agreement will be delivered electronically to Licensee (by giving Licensee access to such Products, Updates and Documentation. 


1.3 Support. Data Mechanics will provide technical support (“Support”) to Licensee via electronic mail. Licensee may initiate a helpdesk ticket by emailing support@datamechanics.io.


2. Responsibility for Systems.

Each party shall retain sole responsibility for such party’s information technology infrastructure, including computers, servers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by such party or through the use of third-party services.


3. Ownership of Intellectual Property; License Grant; Restrictions.


3.1 Ownership by Data Mechanics: Data Mechanics owns its Product, Documentation, website and work. The Product and Documentation contain proprietary and confidential information of Data Mechanics and its licensors. Except to the extent licenses are expressly granted hereunder, Data Mechanics and its licensors retain all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to the Product and Documentation. In addition, any additional system software, and the content, organization, graphics, design, compilation, know-how, concepts, methodologies, procedures, and other matters related to Data Mechanics’ website are protected under applicable copyrights, trademarks and other proprietary rights. The use, copying, redistribution, use or publication by Licensee of any such parts of the website, Product or Documentation, except as expressly authorized by this Agreement, is prohibited. Data Mechanics shall own all right, title and interest, including all intellectual property rights, in and to any intellectual property created by Data Mechanics and delivered to Licensee pursuant to this Agreement or otherwise created by Data Mechanics in the course of providing the Product or Support under this Agreement.


3.2 License Grant by Data Mechanics. Subject to and in consideration of timely payment by the Licensee of the license fees hereunder, and of Licensee’s compliance with the other terms and conditions of this Agreement, Data Mechanics hereby grants to the Licensee and its Authorized Users, solely during the applicable term, a royalty free, limited, personal, non-exclusive, non-transferable (except as otherwise expressly allowed by this Agreement) license to: (i) access and use the Product via the Internet address provided to Licensee by Data Mechanics; and (ii) use the Documentation. 


3.3 Restrictions to License Grant by Data Mechanics. Licensee agrees that it (and its Authorized Users) will not without express written permission of Data Mechanics: (a) reverse compile, disassemble, decompile or engineer, copy, modify, adapt or create derivative works of or from or any part thereof; (b) make the Product or Documentation available to, or use the Product or Documentation for the benefit of, anyone other than Licensee or Licensee’s customers; (c) assign, transfer, sell, resell, license, sublicense, distribute, rent or lease the Product or Documentation, or include any Product or Documentation in a service bureau or outsourcing offering; (d) permit direct or indirect access to or use of the Product or Documentation in a way that circumvents any contractual usage limit; (e) copy the Product or Documentation or any part, feature, function or user interface thereof (except as expressly otherwise permitted under this Agreement); or (f) access or use any Product or Documentation in order to build a competitive product or service. 


3.4 Licensee Responsibilities. Licensee shall provide accurate, current and complete information required to enable its Authorized Users on the Cloud Infrastructure, and to maintain the accuracy of such information during the Use of the Product. Licensee shall require Authorized Users to maintain proper password security, and for maintaining the confidentiality of Licensee’s account. Without limiting any other responsibilities Licensee has under this Agreement, Licensee is responsible for the actions of its Authorized Users, of anybody accessing the Cloud Infrastructure using the credentials of any Authorized User, and of any other individuals to Licensee has given access to the Product.


3.5 Ownership by Licensee. Except to the extent licenses are expressly granted hereunder, Licensee retains all right, title and interest in and to all intellectual property rights (including patent, trademark, trade secret rights, inventions, copyrights, know-how and trade secrets) in and to: (i) its products and services; and (ii) the Licensee Data. 


3.6 License Grant by Licensee. Licensee hereby grants to Data Mechanics a non-exclusive, transferable and sublicensable (solely as set forth herein), worldwide, royalty-free license to use, copy, modify and perform Licensee Data solely as reasonably required to operate and provide the Product. In addition, and despite anything to the contrary in this Agreement, Data Mechanics shall have the right to collect and analyze Licensee Data and other information relating to the provision, use and performance of various aspects of the Product and related systems and technologies (including, without limitation, information concerning Licensee’s use of the Product and data derived therefrom), and Data Mechanics will be free (during and after the term hereof) to (i) use such information and data for the purpose of analytics and to improve and enhance the Product for other development, diagnostic and corrective purposes in connection with the Product and other Data Mechanics offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. 


4. Fees; Payments.


4.1 Accrual of Payment Rights. Data Mechanics’ right to payment for the Product licensed by Licensee shall accrue on the date the Product is Delivered to Licensee. Except in the case of material breach of this Agreement by Data Mechanics, all payments accrued or made under this Agreement are non-cancelable and nonrefundable.


4.2 Payment Terms. 

(a) Access to Subscriptions requires the purchase of Paid Services. Unless otherwise agreed in writing between you and Data Mechanics, if you elect to purchase Paid Services, you agree to pay the rates specified at https://www.datamechanics.co/pricing.


(b) If you elect to purchase Paid Services, you agree to our storage of your payment information and understand that your Paid Services are personal to you, such that you may not transfer or make available your account name and password to others. Any distribution by you of your account name and password may result in cancellation of your Paid Services without refund and/or additional charges based on unauthorized use. We reserve the right, from time to time, to change the Paid Services, with or without prior notice to you.


(c) Prices for all Paid Services are in U.S. dollars and exclude any and all applicable taxes, unless expressly stated otherwise. To the extent permissible under law, you are responsible for any applicable taxes, whether or not they are listed on your receipt or statement. All applicable taxes are calculated based on the billing information you provide us at the time of purchase. If you purchase Paid Services, you agree to pay, using a valid credit or debit card or other form of payment that we may accept from time to time (“Payment Method”), the applicable fees and taxes (if any) set forth in the offer that you accepted. All authorized charges will be billed to your designated Payment Method on the terms described in the specific offer. If payment cannot be charged to your Payment Method or your payment is returned to us for any reason, we reserve the right to either suspend or terminate your access to the unpaid-for Paid Services. It is your responsibility to ensure that sufficient funds are available to cover the charges for the Paid Services, and we have no liability for any overdraft or other fees that you may incur as a result of our processing of your payment.


(d) Upon your acceptance of an offer for the purchase of any subscription-based Paid Services, you will be enrolled in our automatic renewal program to help ensure that there is no interruption in your access to such Paid Services. Under this program, you authorize us to automatically renew your subscription at the end of the term of the subscription you purchased, and each subsequent term, for the same term length of the subscription you initially purchased (unless otherwise stated in the offer you accepted). Unless you change your renewal status as described below, at the time of each such renewal you authorize us to charge your designated Payment Method at the then-current, non-promotional price (unless otherwise stated in the offer you accepted) for the renewal of your Subscription. If you no longer want to be enrolled in our automatic renewal program, you can terminate your Subscription at any time.


(e) You must provide us with current, complete and accurate information for your Payment Method. You must promptly update all information to keep your Payment Method current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify us if your Payment Method is cancelled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password). If you fail to provide us with any of the foregoing information, you agree that you are responsible for fees accrued under your Payment Method. In addition, you authorize us to obtain updated or replacement expiration dates and card numbers for your credit or debit card as provided by your credit or debit card issuer.


(f) All fees relating to Paid Services, including the initial fees and any subsequent automatic renewal fees (as described above), are non-refundable. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, we may in our discretion cancel your Paid Services immediately. If we successfully dispute the reversal, and the reversed funds are returned to us, you are not entitled to a refund or to have your Paid Services reinstated.


5. Warranties and Disclaimer.


5.1 Subject to each of the other provisions hereof, Data Mechanics warrants, solely to Licensee, that for a period of sixty (60) days after the Product is initially Delivered to Licensee (the “Warranty Period”), the Product, when installed properly, will be capable of functioning substantially in accordance with the Documentation. 


5.2 The warranty provided in Section 5.1 will not apply if: (i) Licensee fails to notify Data Mechanics in writing during the Warranty Period of any such breach; or (ii) Licensee fails to implement all Updates to the Product made available at no charge to Licensee during the Warranty Period. 


5.3 If Data Mechanics breaches the warranty set forth in Section 5.1, Licensee’s sole and exclusive remedy, and Data Mechanics’ sole obligation, shall be to remedy such breach as set forth in this Section. At the sole discretion of Data Mechanics, Data Mechanics will, at its expense, either: (i) repair or replace the defective Product to enable it to perform substantially in accordance with the Documentation; or (ii) terminate this Agreement and refund to Licensee the fees paid by Licensee to Data Mechanics for the defective Product.


5.4 Licensee represents and warrants that Licensee owns all Licensee Data or Licensee has all rights that are necessary to grant Data Mechanics the licensed rights in Licensee Data under this Agreement. Licensee also represents and warrants that neither Licensee Data, nor the inclusion of Licensee Data in the Product, will infringe, misappropriate or violate a third party’s Intellectual Property Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.


5.5 EXCEPT AS MAY OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO ANY PRODUCTS, SERVICES, DOCUMENTATION, DATA OR OTHER TANGIBLE OR INTANGIBLE MATERIALS PROVIDED UNDER THIS AGREEMENT, AND HEREBY DISCLAIMS ANY OTHER EXPRESS AND ANY IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DATA MECHANICS DOES NOT WARRANT THAT THE PRODUCT OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE OR THAT SUCH PRODUCT OR DOCUMENTATION WILL SUCCEED IN RESOLVING ANY PROBLEM.


6. Indemnities.


6.1 Indemnification by Licensee. Licensee will defend and indemnify Data Mechanics from and against any losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys’ fees) arising out of or relating to (1)  the intellectual property rights or privacy rights in any of the Licensee Data; and (2) any loss, misuse, or disclosure of Licensee Data not the result of Data Mechanics’ misconduct or gross negligence.


6.2 Despite any of the foregoing, Licensee’ obligations under Section 6 shall be valid only if the party requesting indemnification: 

(a) gives notice to the indemnifying party of any Claim promptly upon becoming aware of the same;

(b) gives the indemnifying party the sole control of the defense and settlement of any Claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of the indemnifying party; and

(c) acts in accordance with the reasonable instructions of the indemnifying party and gives to the indemnifying party such assistance as it shall reasonably require in respect of the conduct of the said defense.


7. Limitation of Liability.


7.1 Limitation on Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS BASED UPON EITHER PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS HEREUNDER, AND SUBJECT TO SECTION 7.2, NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 


7.2 Prohibition on Certain Damages. EXCEPT WITH RESPECT TO CLAIMS BASED UPON LICENSEE’S BREACH OF ITS LICENSED RIGHTS HEREUNDER, IN NO EVENT WILL EITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, LOST REVENUE, LOST DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY THE OTHER PARTY (IN ALL CASES WHETHER SUCH DAMAGES ARE CHARACTERIZED AS DIRECT, INDIRECT OR OTHER), WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF SUCH OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 


7.3 Maximum Liability. IN NO EVENT SHALL DATA MECHANICS’ LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY LICENSEE TO DATA MECHANICS UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING ANY CLAIM MADE HEREUNDER. 


8. Confidentiality.


8.1 Confidentiality Agreement. Each of the parties hereto undertakes to the other to keep confidential all Confidential Information concerning the business and affairs of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of this Agreement. To qualify as Confidential Information, the disclosing party must conspicuously mark the Confidential Information in tangible form as “confidential,” “proprietary” or similar words generally understood to communicate the confidential nature of the information. Where it is not possible to use such marking, or when the information is disclosed orally or visually, the disclosing party must state at the time of disclosure that the information is Confidential Information, and when requested by the receiving party, summarize in writing the Confidential Information within a reasonable time of such request, describing the disclosure in sufficient detail. Despite the foregoing, the Product and each party’s product road maps, product development plans, pricing, business plans, customer lists, business and financial information shall be deemed to be such party’s Confidential Information. 


8.2 Exceptions. Despite all of the foregoing, Confidential Information will not include any information which: (a) is already lawfully in the receiving party’s possession (unless received pursuant to a nondisclosure agreement); (b) is or becomes generally available to the public through no fault of the receiving party; (c) is disclosed to the receiving party by a third party who may transfer or disclose such information without restriction; (d) is disclosed by the receiving party with the disclosing party’s approval; or (e) is independently developed by the receiving party without any use of Confidential Information. If either party is required to disclose any Confidential Information as a matter of law, the receiving party will use all reasonable efforts to provide the disclosing party with prior notice of such disclosure and to obtain a protective order therefor.


8.3 Injunctive Relief. Because of the unique and proprietary nature of the Confidential Information, it is understood and agreed that the disclosing party’s remedies at law for a breach by the receiving party of its obligations hereunder may be inadequate and that the disclosing party shall be entitled to seek equitable relief (including without limitation provisional and permanent injunctive relief and specific performance). 


9. Term and Termination.


9.1 Term of Agreement. This Agreement shall begin on the Effective Date and shall continue in force until validly terminated.


9.2 Term of Subscription. Subscriptions licensed under this Agreement shall begin on the Effective Date and continue monthly until validly terminated.


9.3 Termination. This Agreement and any Subscription may be terminated (i) by Licensee at any time upon written notice (including by email) to Data Mechanics and (ii) by Data Mechanics at any time upon not less than 30 days’ written notice (including by email) to Licensee.

Any termination of this Agreement pursuant to this Section shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.


9.4 Effect of Termination. Upon termination of this Agreement, Licensee shall immediately uninstall or destroy (or at the sole option of Data Mechanics, return) all copies of the Product and Documentation in its possession or control, and a duly authorized officer of the Licensee shall certify in writing to Data Mechanics that the Licensee has complied with such obligation.


9.5 Survival. Sections 3.1, 3.3, 3.4, 3.5, 3.6 4, 5.4, 5.5, 6-8, 9.4, 9.5, 9.6 and 10- 12, all associated definitions, and all accrued rights to payment shall survive after termination or expiration of this Agreement. 


9.6. Termination is not an exclusive remedy for breach of this Agreement by either party. All other remedies will be available to the non-breaching party whether or not the non-breaching party terminates this Agreement for breach by the other party.


10. Import and Export Regulations. 

The Product is subject to U.S. export controls, specifically the Export Administration Regulations. Both parties shall comply with all relevant import and export regulations, including those adopted by the Bureau of Industry and Security of the U.S. Department of Commerce. Licensee shall not transfer, export or re-export, directly or indirectly, the Product to any Prohibited Entity, and Licensee affirms that it is not a Prohibited Entity or acting on behalf of any Prohibited Entity (as defined under U.S. laws and regulations). 


11. Privacy and Security. 

Each party agrees to abide by all applicable local, state, national, and international laws and regulations in connection with providing the Product, including, without limitation, all laws regarding the transmission of technical data exported from the United States through the Product and all applicable privacy laws. Data Mechanics will, taking into account the nature of the personal data and the risks involved in the processing of any such personal data, maintain reasonable and appropriate security measures, including technical and organizational safeguards designed to ensure the security and confidentiality of personal data. Despite the foregoing, Licensee acknowledges that the storage and processing of data, and the assurances published by Amazon (including Amazon Web Services) Microsoft (including Azure) and Google (including Google Cloud Platform), meet the requirements of this Section.


12. Miscellaneous.


12.1 Waiver. The waiver by either party of a breach or default of any of the provisions of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.


12.2 Notices. All notices must be in writing and in the English language and will be deemed given only when sent by mail (return receipt requested), hand-delivered, sent by documented overnight delivery service to the party to whom the notice is directed, at such address as to which the other party has been notified, or sent by email to the email address as may be provided by one party to the other from time to time.


12.3. Invalidity and Severability. If any provision of this Agreement shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. 


12.4 Assignment and Sublicensing. Either may assign this Agreement without such consent to an entity that acquires all or substantially all of the shares of the assigning party, or all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale, or otherwise (except to a competitor of the other party, as determined in such other party’s reasonable discretion). In all other cases, neither party shall assign, transfer or sublicense this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party. 


12.5 Headings. Headings to paragraphs or sections in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.


12.6 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions thereof. The sole venue for all disputes relating to this Agreement shall be in San Francisco County, California, USA.


12.7 Attorneys’ Fees. If any legal action or other proceeding is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney fees and other costs incurred in the action or proceeding, in addition to any other relief to which the prevailing party may be entitled. 


12.8 Independent Contractors. The parties agree that each is an independent contractor and neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.


12.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original, but all of which together will constitute one and the same instrument.


12.10 Amendments. This Agreement may be modified, replaced or rescinded only in writing, and signed by a duly authorized representative of each party.


13. Publicity. 

Either party to this Agreement may publicize the existence of the business relationship established by this Agreement in connection with its products, promotions, or publications. Licensee agrees to reasonably cooperate with Company to serve as a reference account upon request. Licensee grants Data Mechanics permission to use Licensee’s name and logo(s) in connection with promotion of Data Mechanics’ products and services. All representations of Licensee’s logo shall be exact copies of those used by Licensee in design, color and other details. Except as expressly set forth in this Section, nothing in this Agreement gives either party any right, title or interest in the other party’s logos, trademarks, service marks or trade names. Despite anything to the contrary, neither party may disclose the specific terms of this Agreement, except as required by applicable law.


THIS AGREEMENT, INCLUDING ALL EXHIBITS AND ALL APPLICABLE LICENSE AGREEMENTS, CONSTITUTES THE COMPLETE AND EXCLUSIVE UNDERSTANDING OF THE PARTIES, AND SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS SALES PROPOSALS, NEGOTIATIONS AND AGREEMENTS, ALL TERMS AND CONDITIONS INCLUDED AS PART OF ANY PURCHASE ORDER, AND ALL OTHER REPRESENTATIONS OR COMMUNICATIONS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF. THE PARTIES AGREE THAT ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED ON, REFERENCED BY OR INCORPORATED INTO ANY LICENSEE PURCHASE ORDER ARE EXPRESSLY REJECTED AND SHALL NOT BE CONSIDERED AN AMENDMENT TO THIS AGREEMENT.

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