Signals Analytics, Inc.

Software as a Service Agreement

 

This Software as a Service Agreement (the “Agreement” or the “Terms”) is a binding agreement between Signals Analytics Inc., a company incorporated under the laws of the State of Delaware, with a principal place of business at 1325 Avenue of the Americas, 25th Floor, New York, NY 10019 (“Company”) and the entity identified in the applicable Subscription Form (“Customer”). The Company and Customer will each be referred to as a “Party” and both collectively, the “Parties”.

1.          Definitions

1.1.       “Customer Data” mean the data of Customer which has been provided or inputted into the Platform by Customer.

1.2.       “Effective Date” means the effective date as set forth in the applicable Subscription Form.

1.3.       “Fees” means the applicable service fees, as set forth in section ‎5.1.

1.4.      "Intellectual Property Rights" means worldwide, whether registered or not (a) rights associated with works of authorship, designs, mask works and photography including copyrights; (b) trademarks, service marks, domain names, logos, trade names, trade dress, the right to publicity and goodwill rights; (c) patents, patent applications and industrial designs; (d) trade secrets; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.

1.5.      “Output Data” means the various reports, analytics, and other types of information and data that the Service may generate, provide or make available to Customer.

1.6.      "Subscription Form" means a written instrument provided to Customer by the Company or an authorized representative of the Company, which details the transaction between Customer and the Company or Company's authorized representative.

1.7.      “Service” means the Company’s  online platform for intelligence streams for data analytics and intelligence, which is a hosted software service under a Software-as-a-Service (SaaS) model.

1.8.      “Term” means the period of these Terms as specified in section ‎7 below.

1.9.      “Taxes” means any sales, use or VAT, duties, fees or other government charges which may be imposed on or with respect to amounts paid or due to the Company.

1.10.    “Authorized Users” mean anyone (whether a person or not) accessing the Platform on behalf of the Customer, including, without limitation, the Company’s employees and third-party service providers.

1.11.    “Authorized User Data” means the data we collect and process, or are exposed to in the course of creating an account for an Authorized User in order to provide the Authorized User with access to the Service.

2.          Interpretation.

As used herein, the term “including”, means including, but not limited to, and without limitation, to the generality of the preceding phrase.

3.          License; Use.

3.1.      Subject to these Terms and Customer’s payment of the applicable Fees, , during the term of this Agreement (as defined in Section 7.1 below), Company will provide you with a non-exclusive, non-transferable, non-assignable and non-sublicensable license to the Service for internal business use only.  The Service may include data from third party sources, over which Company hereby grants to Customer a non-exclusive, non-transferable, non-assignable and non-sublicensable license to use in connection with Customer’s use of the Service, subject to the terms and conditions of the third party license agreements.

3.2.      Access to the Service by Users is facilitated to the number of Users or as otherwise provided in the Subscription Form and/or subsequent Subscription Forms as applicable. Customer is solely responsible for all activity conducted via these accounts. Customer is responsible to ensure that all passwords for these accounts are kept confidential and Customer will be solely and exclusively responsible for any unauthorized use thereof. Company will not be liable for any loss that Customer may incur as a result of unauthorized use of Customer account, or account information, or any materials, including Output Data, either with or without Customer’s knowledge

 

3.3.      Customer must ensure that Customer’s employees, consultants and agents that it designates to use and deal with the Service for Customer’s benefit fully comply with these Terms. Customer is liable to the Company for all acts or omissions of those that use and deal with the Services for Customer’s benefit, as though Customer itself had performed those acts or omissions.

4.          Data

4.1.      The Company will collect and process Customer Data. Customer acknowledges and agrees that:

4.1.1.         Except for User Data, neither party intends to receive or store any personally identifiable data in connection with the provision or use of the Service.  Company stores all data through Amazon Web Services, the terms of which appear at: https://aws.amazon.com/legal/?nc1=f_cc.

4.1.2.         The Company may store and process User Data outside of the country in which the Users are located and/or outside the country in which User Data is collected.

4.1.3.         It is responsible to obtain and maintain valid consents from all Users, as may be necessary (if at all) under applicable law (including data protection or data processing laws and regulations), in order to allow the Company to lawfully collect, handle, retain, process and use the User Data in the manners and for the purposes set forth in these Terms.

4.2.      The Company will process, handle, use and maintain Customer Data (by itself or using trusted third-party service providers such as cloud service providers) for the following purposes:

4.2.1.         To provide the Service to Customer, conduct administrative and technical activities necessary to maintain and provide the Service and to improve and customize the Service;

4.2.2.         To bill and collect Fees, enforce these Terms, take any action in any case of dispute or legal proceedings;

4.2.3.         If the Company is required, or reasonably believes it is required, by law, to share or disclose Customer Data, or if such sharing or disclosure is required pursuant to a subpoena, order, or decree, issued by a competent judicial or administrative authority, provided that, to the extent legally permitted, the Company will endeavor to give Customer prompt notice of the requirement prior to such disclosure, to allow Customer, at its cost and expense, to intervene and protect its interests in the Customer Data.

4.3.      The Company will dedicate its best efforts, using no less than commercially reasonable measures, to maintain the confidentiality of Customer Data that the Company is exposed to, and to prevent and refrain from, disclosure or use of Customer Data for purposes other than those specified in these Terms. The Company’s personnel will access Customer Data on a strict 'need to know' basis, subject to these Terms.

4.4.      Customer assumes sole and exclusive responsibility to carry out such actions as it deems appropriate as a result of the Output Data. The Company has no responsibility or liability, regarding Customer’s reliance upon, or use of, the Output Data, Customer’s actions or omissions in connection with the Output Data, or any consequences resulting therefrom.

4.5.      Customer agrees to indemnify and hold harmless the Company and its directors, officers, employees, and subcontractors, upon the Company’s request and at Customer’s own expense, from, and against, any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, arising from any third party complaint, claim, plea, or demand in connection with breach of section 4.1.3 above.

4.6.      Any data that Customer provides to the Company may be used by the Company solely to provide, improve and operate the Service, and perform and enforce this Agreement, except for aggregate data that does not identify natural persons, which may be used by the Company without restrictions. Such data held by Company in confidentiality. If this Agreement expires or is terminated, The Company will have no obligation to maintain or forward to Customer any of its data. It is Customer’s responsibility to prepare its own data backups.

5.          Fees

5.1.      In consideration of the provision of the Service to Customer, Customer will pay the Company as further set forth in the applicable Subscription Form.  

5.2.      Payments will be made via wire transfer, to the Company’s designated bank account, the details of which the Company shall separately convey to Customer. Customer shall add to all fees due herein any Taxes. Taxes shall be borne and paid by Customer as they become due. If applicable laws require that taxes be withheld by Customer from any amounts due to the Company under this Agreement, then Customer shall gross-up the fees up accordingly so that the Company actually receives the fees listed above.

5.3.      Customer is responsible for paying all Fees applicable to the subscription to the Service, whether or not Customer actively used, accessed or otherwise benefited from the Service.

5.4.      Failure to settle any overdue Fee within ten (30) calendar days of its due date will constitute a material breach of these Terms. Without derogating from any other rights and remedies available to the Company under applicable law, overdue fees will accrue interest at the rate of three-quarters of one percent (0.75%) per month or part thereof, cumulative monthly on the linked capital from the due date until the date of actual payment. Customer will reimburse the Company for all legal costs and attorney fees that the Company incurs in the course of collecting Customer’s overdue fees.

5.5.      Customer shall not disclose the terms and conditions, or special pricing provisions contained in this Agreement or the Subscription Form without the prior express written consent of Company.

6.          Restrictions

6.1.      Customer may not modify, make derivative works of, disassemble, de-compile or reverse engineer any binary-code part of the Service, or otherwise attempt to discover its underlying code, structure, implementation or algorithms.

6.2.      Customer may not use the Service in order to develop, or create, or permit others to develop or create, a product or service similar or competitive to the Service.

6.3.      Customer may not offer the Service to third parties, including by reselling, licensing, renting, leasing, transferring, lending, timesharing, assigning or redistributing the Service or any part thereof.

6.4.      Customer may not perform or attempt to perform any of the following in connection with the Service:

6.4.1.         Breaching the security of the Service, identifying, probing or scanning any security vulnerabilities in the Service,

6.4.2.         Accessing data not intended for Customer;

6.4.3.         Interfering with, circumventing, manipulating, overloading, impairing or disrupting the operation, or the functionality of the Service;

6.4.4.         Working around any technical limitations in the Service;

6.4.5.         Using any tool to enable features or functionalities that are otherwise disabled, inaccessible or undocumented in the Service;

6.5.      CUSTOMER MAY NOT USE THE SERVICE FOR ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW.

7.          Term and Termination

7.1.      Unless otherwise specified in the applicable Subscription Form, this Agreement commence upon the Effective Date and will continue for a period of twelve (12) months thereafter, at which point the Agreement will be automatically renewed by additional twelve (12) months periods unless a party provides a written notice of non-renewal at least thirty (30) days prior to the end of the then current term, if not otherwise terminated earlier pursuant to this section 7.

7.2.      In addition to the foregoing, either party may terminate the Agreement:

7.2.1.         In the event of a breach of the Agreementby the other party, where the breach remains uncured for ten (10) days following written notice thereof from the non-breaching party to the breaching party;

7.2.2.         If the terminating party is required to do so by law; and

7.2.3.         If the other party is declared insolvent or bankrupt, is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary), or makes an assignment for the benefit of creditors or takes or has taken against it any such other comparable action in any relevant jurisdiction.

7.3.      Immediately upon termination of the Agreement, Customer must cease any and all use of the Service.

7.4.      Sections in this Agreement that by their purpose of nature should survive termination of these Terms, will so survive.

8.          Software quality; Software modifications; Disclaimer of Warranty and Limitation of Liability

8.1.      The Company will endeavor to have the Service operate properly. However, as a service that relies on software, predictive algorithms and third-party networks and continuous internet connectivity, the Company does not guarantee that the Service will operate in an uninterrupted or error-free manner, or that it will always be available, free from errors, omissions or malfunctions.

If the Company receives notice of any failure or malfunction, or if the Company becomes aware of them by itself, the Company will attempt to regain the Service’s availability as soon as practicable. However, such incidents will not be considered a breach of these Terms.

8.2.      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF THE COMPANY’S INTENTIONAL MISCONDUCT OR BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS, THE COMPANY, INCLUDING ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON ITS BEHALF, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY OR PUNITIVE DAMAGES, LOSSES (INCLUDING LOSS OF PROFIT, LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES AND LOSS OF DATA), COSTS, EXPENSES AND PAYMENTS, EITHER IN TORT, CONTRACT, OR IN ANY OTHER FORM OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING FROM, OR IN CONNECTION, WITH THESE TERMS, ANY USE OF, OR THE INABILITY TO USE THE SERVICE, THE OUTPUT DATA, ANY RELIANCE UPON THE OUTPUT DATA, OR ANY ERROR, INCOMPLETENESS, INCORRECTNESS OR INACCURACY OF THE SERVICEOR THE OUTPUT DATA.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF THE COMPANY’S INTENTIONAL MISCONDUCT, THE TOTAL AND AGGREGATE LIABILITY OF THE COMPANY AND ITS EMPLOYEES, DIRECTORS, OFFICERS, SHAREHOLDERS, ADVISORS, AND ANYONE ACTING ON THEIR BEHALF, FOR DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICE OR THE OUTPUT DATA, SHALL BE LIMITED TO THE FEES CUSTOMER HAS ACTUALLY PAID THE COMPANY IN THE TWELVE (12) MONTHS PRECEDING THE EVENT PURPORTEDLY GIVING RISE TO THE CLAIM.

8.3.      THE SOFTWARE IS PROVIDED TO CUSTOMER “AS IS”. THE COMPANY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THE OUTPUT DATA, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, NON-INFRINGEMENT, TITLE, SECURITY, COMPATIBILITY OR PERFORMANCE.

9.          Indemnification

9.1.      Company will defend, indemnify, and hold harmless Customer from and against any and all third-party claims, suits, proceedings, costs, and expenses (including, without limitation, attorneys’ fees) arising from or related to an allegation that the Service violates the Intellectual Property Rights of such third party. If the Service infringes upon any third party Intellectual Property Rights, Company will at its option and expense: (i) modify the Service to the extent that it is not infringing any further; (ii) substitute the Service with other services with substantially equivalent functionality; or (iii) obtain from such third party the right for Customer to use the infringing Service. If such remedies are not reasonably available, Company shall have the right to terminate this Agreement and shall, as Customer’s sole and exclusive remedy for such license and Agreement termination, refund amounts paid by you in advance, on a pro rata basis, for the remainder of the term for the un-used portion of the Service. Notwithstanding the above, Company shall have no liability for any claim of infringement to the extent caused by (i) the Service having been modified by parties other than Company or was not authorized by Company in writing; (ii) Customer’s use of the Service in conjunction with data where use with such data gave rise to the infringement claim; or (iii) Customer’s use of the Service with non-Company data, material, software or hardware, where use with such other data, material, software or hardware gave rise to the infringement claim.

9.2.      Customer will defend, indemnify, and hold harmless Company, its corporate affiliates, or any of its or their respective directors, officers, owners, employees, agents, successors, and permitted assigns from and against any and all third-party claims, suits, proceedings, costs, and expenses (including, without limitation, attorneys’ fees) arising from or related to (a) breach of Customer’s confidentiality obligations under Section 12; (b) Customer’s violation of law applicable to Customer and Customer’s business; (c) breach by Customer of Company's Intellectual Property Rights in the Service.

9.3.      The indemnitee will promptly notify indemnitor upon becoming aware of any pending or threatened action that is covered by this Section and will fully cooperate with the indemnitor, at the indemnitor’s cost, in the defense of such action. The indemnitor shall have the sole right to control the defense and settle the indemnification claim on behalf of the indemnitee, provided that such indemnitee does not impose any obligations, commercial or otherwise, on the indemnitee

10.       Support and maintenance

10.1.    During the Term, the Company, either directly or with the assistance of third parties, may provide Customer technical support for technical questions, problems and inquiries regarding the Service, during the Company’s business days and hours, and pursuant to the support scheme, hours and channels separately conveyed to Customer.

10.2.    The Company will attempt to respond to Customer’s technical questions, problems and inquiries within a reasonable time. However, the Company –

10.2.1.      May decline to provide such support for matters that the Company deems, at its discretion, to require unreasonable time, effort, costs or expenses;

10.2.2.      Make no warranties to any specific response-time or to the successful or satisfactory resolution of the question, problem or inquiry.

10.3.    For the purpose of the provision of technical support for Customer’s technical questions, problems and inquiries, Customer will cooperate, and work closely with the Company, to reproduce malfunctions, including conducting diagnostic or troubleshooting activities, as the Company reasonably requests.

11.       Professional Services.

Any additional professional services to be provided by the Company shall be provided at additional cost pursuant to one or more agreement(s) entered into between the Company and Customer, which shall be separately entered into.

12.       Confidentiality

12.1.    Customer acknowledge that these Terms, any agreement to which these Terms are incorporated, the Service, including any past, current and future releases of the Service’s dashboard, software, features, architecture, layout, implementation and interfaces constitute valuable proprietary confidential information of the Company (“Confidential Information”), and that unauthorized disclosure of such Confidential Information is prohibited and could cause irreparable harm to the Company.

12.2.    Customer must hold such Confidential Information in confidence using the same degree of care, but in no case less than a reasonable degree of care, that Customer use to prevent the unauthorized dissemination or publication of its own confidential information. Customer may use this Confidential Information only for the purpose of utilizing the Service as permitted hereunder and except as explicitly otherwise provided herein, Customer may not disclose Confidential Information to any third party, including but not limited to any of its affiliates or any other corporate entities which Customer may now control or establish in the future, or demonstrate or present Confidential Information provided to Customer as part of the Service, without the Company’s prior written consent.

12.3.    The obligations set forth in this section shall not apply to information that: (i) is now or subsequently becomes generally available in the public domain through no fault or breach of Customer; (ii) Customer can demonstrate in your prior established records to have had rightfully in your possession prior to disclosure of the same by the Company; (iii) Customer can demonstrate by written records that you had rightfully obtained the same from a third party who has the right to transfer or disclose it, without default or breach of confidentiality obligations; (iv) the Company has provided its prior written approval for disclosure; or (v) Customer is required to disclose pursuant to a binding order or request by court or other governmental authority, or a binding provision of applicable law, provided that, to the extent permissible, Customer shall provide the Company notice of the requested disclosure as soon as practicable, to allow the Company, if it so chooses, to seek an appropriate protective or preventive order.

13.       Intellectual Property.

13.1.    All rights, title and interest in and to the Service, including without limitation the Output Data, the underlying software, underlying data, platforms, algorithms, technology, design, any information, services, texts, files, sound, music, videos, various applications, organization, structure, "look and feel" and features and any modifications, enhancements and derivatives thereof and all Intellectual Property Rights associated therewith ("Company IPR"), are and shall remain exclusively owned by the Company or its licensors. Other than the license set forth in Section 3.1 above, Company does not grant you or any third party any other rights connection with the Service..

13.2.    The Company may indicate on its website and in other online and offline publications and communications that the Customer is a client of the Company and the Service. In connection with the foregoing, Customer hereby grants to the Company, only during the Term of this Agreement, a limited, non-transferable and non-sublicense-able right to use any proprietary marks, trade names, marketing slogans and logos that Customer may adopt from time to time, solely in connection with and for the purpose of the preceding sentence. In such instances of use, the Company will follow Customer’s branding guidelines which Customer informs the Company of in advance.

14.       Dispute Resolution; Governing Law and Venue.

14.1.    This Agreement shall be governed and construed solely in accordance with the laws of the State of New York, without giving effect to conflicts of law principles thereof.

14.2.    The Parties will use reasonable efforts to resolve any dispute arising out of this Agreement through discussion between appropriate staffers from each Party. If Parties are unable to resolve the dispute, either Party may escalate the dispute to its executives. If an executive level meeting fails to resolve the dispute within thirty (30) days after escalation, either Party may seek any available legal relief. This provision will not affect either Party’s right to seek injunctive or other provisional relief at any time.

14.3.    Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, which the Parties cannot amicably resolve pursuant to the foregoing, shall be exclusively referred to the courts located in New York, NY.

15.       Assignment.

Customer may not assign these Terms without the Company’s prior written consent, which the Company shall not unreasonably withhold or deny. Any purported assignment without the Company’s prior written consent is void.

16.       Relationship of the parties.

The relationship between the parties hereto is strictly that of independent contractors, and neither party is an agent, partner, joint venturer or employee of the other.

17.       Complete Terms and Severability.

These Terms constitute the entire and complete agreement between Customer and the Company concerning the subject matter herein. These Terms supersede all prior oral or written statements, understandings, negotiations and representations with respect to the subject matter herein. If any provision of these Terms is held invalid or unenforceable, that provision shall be construed in a manner consistent with the applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions will remain in full force and effect. These Terms may be modified or amended only in writing, signed by the duly authorized representatives of both parties.

18.       No waiver.

Neither party will, by mere lapse of time, without giving express notice thereof, be deemed to have waived any breach, by the other party, of any terms or provisions of these Terms. The waiver, by either party, of any such breach, will not be construed as a waiver of subsequent breaches or as a continuing waiver of such breach.

19.       Counterpart signatures.

This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and enforceable against the Parties actually executing such counterpart, and all of which together shall constitute one and the same instrument.