Last updated October 10, 2019
This Agreement is effective upon the date that Tetra Insights makes the Tetra Insights Platform available to User pursuant to an Order Form (the “Effective Date”).
1 Definitions. Defined terms are set forth in Section 12 below.
2 Term and Termination.
2.1 Term and Renewal. The term of this Agreement shall be for one (1) year, unless terminated earlier as permitted herein (“Term”).
2.2 Termination. Either party may terminate this Agreement for convenience upon fifteen (15) days’ prior notice to the other.
2.3 Effect of Termination. Upon termination of this Agreement, User’s right to access or use User Data and the Tetra Insights Platform shall immediately cease and Tetra Insights has no obligation to maintain, deliver or provide access to User Data, and Tetra Insights shall purge all User Data in its possession except to the extent prohibited by applicable law. The provisions of this Agreement that are intended to survive termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive, and Sections 2.3, 4, 5, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.
3 Usage Rights and Restrictions.
3.1 User’s Rights. Subject to the terms of this Agreement (Including the Order Form), Tetra Insights grants User a limited, non-transferable, non-exclusive, non-sublicensable right for its Authorized users, at its own cost and expense, to access and use the Tetra Insights Platform and its associated documentation only for User’s internal business purposes during the Subscription Term. User acknowledges that nothing herein obligates Tetra Insights to deliver or otherwise make available any copies of computer programs or code from the Tetra Insights Platform to User, whether in object code or source code form.
3.2 General Restrictions. User and Authorized Users shall not, directly or indirectly,: (i) license, sublicense, sell, resell, rent, lease, transfer, distribute, time share or otherwise commercially use or make the Tetra Insights Platform available to any third party, in each case other than as expressly permitted herein; (ii) make derivative works of, disassemble, reverse compile or reverse engineer any part of the Tetra Insights Platform or its documentation, or access the Tetra Insights Platform or its documentation to build a similar or competitive product or service, or to create the source code or structural framework of the Tetra Insights Platform; (iii) use the Tetra Insights Platform to send spam or otherwise send content in violation of applicable laws; or (iv) use the Tetra Insights Platform to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material. User may not remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings within the Tetra Insights Platform or Tetra Insights Platform documentation. In addition, User and Authorized Users shall not, directly or indirectly,: (a) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Tetra Insights Platform, (b) harvest or collect information about or from other users of the Tetra Insights Platform (c) probe, scan or test the vulnerability of the Tetra Insights Platform, nor breach the security or authentication measures on the Tetra Insights Platform, or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Tetra Insights Platform (d) attempt to gain unauthorized access to the Tetra Insights Platform or its related systems or networks, (e) use the Tetra Insights Platform for benchmarking purposes, or for any illegal purpose, or (f) create Internet “links” to the Tetra Insights Platform or “frame” or “mirror” any content therein.
3.3 Acceptable Use Policy. User acknowledges that Tetra Insights engages third party vendors to host the Tetra Insights Platform for the benefit of User, and may change such vendors from time to time and will inform User of any such change. User shall at all times use the Tetra Insights Platform in accordance with such vendors’ acceptable use policy as made available by Tetra Insights to User from time to time (“AUP”), and the AUP is incorporated into this Agreement in its entirety as if fully set forth herein. As of the Effective Date, Tetra Insights’ hosting provider is Amazon Web Services, and User shall comply with AWS’s AUP found at https://aws.amazon.com/aup/. User acknowledges that the current vendor’s AUP may change from time to time, and that it is User’s responsibility to check the current vendor’s AUP regularly to ensure its continued compliance.
3.4 Authorized Users. User is responsible for ensuring that all Authorized Users are aware of and comply with the terms of this Agreement. Any breach of this Agreement by such individuals shall be deemed to be a breach by User, and User is liable for such breaches.
3.5 Usage Limitations. The Order Form may set forth Authorized User limits, data stream limits, and/or other usage limitations, and use of the Tetra Insights Platform by User is restricted to such limitations as set forth in the Order Form. User rights may be transferred from one individual person to another but may not be shared or used concurrently by more than one Authorized User at a time. Login credentials shall not be shared or concurrently used by more than one Authorized User. User shall permit and hereby permits Tetra Insights to conduct a reasonable audit of User’s compliance with any usage limits upon prior notice by Tetra Insights and not more than once per calendar year.
3.6 Security. User shall ensure the security of its account ID, password, and connectivity with the Tetra Insights Platform. If any administrative account ID or password is stolen or otherwise compromised, User shall immediately change the password and inform Tetra Insights of the compromise. User acknowledges that responsibility for all User Data, text, information, messages and other material submitted by its users to the Tetra Insights Platform lies solely with User. User is solely responsible for the integrity and quality of User Data, and for maintaining an appropriate backup thereof.
3.7 Changes to the Tetra Insights Platform. Tetra Insights may make upgrades and improvements to the Tetra Insights Platform available to User from time to time. Tetra Insights may also modify or delete any features of the Tetra Insights Platform, and may substitute old features with new features, as may be necessary to meet applicable laws or industry-standard requirements or demands or requirements of third party service providers, or otherwise in its discretion.
3.8 Suspension. Tetra Insights may immediately suspend provision of the Tetra Insights Platform at any time, without notice to User and without liability, if Tetra Insights suspects or receives notice that the Tetra Insights Platform or the use thereof actually or allegedly infringes or violates any third party’s rights or violates any applicable laws. Tetra Insights may also suspend access to and use of the Tetra Insights Platform in order to comply with applicable laws, or upon having reason to believe that any improper activity or potential damage to Tetra Insights or other persons or entities is associated with User’s or its users’ use of or access to the Tetra Insights Platform.
3.9 Feedback. User hereby assigns to Tetra Insights all right, title and interest in and to all feedback, suggestions, ideas, improvements and other comments provided by User to Tetra Insights relating to the Tetra Insights Platform (excluding User Data) (collectively, “Feedback”), and Tetra Insights will have the unrestricted right to use and disclose Feedback into and in connection Tetra Insights products and services, without duty or obligation to User, and User acknowledges that any improvements, modifications and changes arising from or in connection with the its contribution to the Tetra Insights Platform are the exclusive property of Tetra Insights; provided, however, that Tetra Insights will not use User’s name in connection with any such use or disclosure. Feedback constitutes Tetra Insights’ Confidential Information.
3 4 Confidential Information.
3 4.1 Restrictions. Each party agrees: (i) that it will use (and will ensure that its employees, affiliates, agents, contractors and other allowed third parties use) all reasonable and diligent efforts (which shall be no less than the efforts used to protect its own confidential information of a similar nature) to prevent the disclosure of the other party’s Confidential Information to any person or entity, unless authorized by the other party in writing; and (ii) that it will not use Confidential Information of the other party for any purpose other than as authorized by this Agreement.
3 4.2 Exceptions. Confidential Information shall not include any such information that: (a) is already rightfully known to the receiving party at the time of disclosure (as evidenced by written records of the receiving party); (b) is or becomes generally available to the public other than through any wrongful act or omission of the receiving party; (c) is disclosed to the receiving party without an obligation of confidentiality by a third party who had no separate nondisclosure obligation to the disclosing party in respect of such information; or (d) is independently discovered or developed by or on behalf of the receiving party without the use of or reference to the Confidential Information of the disclosing party (as evidenced by written records of the receiving party).
3 4.3 Permitted Disclosures. The receiving party may disclose the disclosing party’s Confidential Information if required to be disclosed pursuant to administrative or court order, government or regulatory investigation or requirement, applicable laws, or arbitration or litigation arising out of this Agreement; provided, however, that to the extent permissible, the receiving party shall, in advance of any such disclosure and unless restricted by applicable laws, promptly notify the disclosing party in order to enable the disclosing party reasonable time to seek a protective order with respect to the requested information or otherwise challenge or oppose the disclosure requirement.
5 Ownership. User shall retain all right, title and interest to all User Data. Tetra Insights shall retain all right, title and interest in and to (i) the Tetra Insights Platform, the Tetra Insights Platform documentation, and all improvements, modifications and/or enhancements thereto (regardless of the source of inspiration for any such enhancement or modification and regardless of whether User has provided input regarding such modifications and/or enhancements), and all inventions or discoveries embodied within or covered by the Tetra Insights Platform; (ii) all proprietary education or training content provided by Tetra Insights; and (iii) materials related to Tetra Insights’ processes and methodologies. No right, license, title or interest is granted by Tetra Insights to User to the Tetra Insights Platform or any other technology owned or controlled by Tetra Insights, or in or to any intellectual property rights relating to the foregoing (including without limitation patent rights), whether by implication or estoppel or otherwise, and Tetra Insights reserves all rights not expressly granted herein. Products acquired for use within or for any United States federal agency are provided with “LIMITED RIGHTS” and “RESTRICTED RIGHTS” as defined in DFARS 252.227-7013 and FAR 52.227-19.
6.1 Performance Data. Notwithstanding any other term of this Agreement, Tetra Insights may develop, use and disclose, and shall retain all right, title and interest in and to, all transactional, use and performance data related to use of the Tetra Insights Platform, which may include aggregated and anonymized or statistical data based upon Authorized Users’ use of the Tetra Insights Platform and User Data, provided that Tetra may not disclose any of such data to the extent User may be identified therefrom.
6.2 Third Party Data. To the extent User Data constitutes data or information received by User from third parties (“Third Party Data”), User is responsible for ensuring its use, processing, reporting against, combination, comingling and manipulation of Third Party Data, and Tetra Insights’ use of Third Party Data through the Tetra Insights Platform, is in compliance with User’s agreements with its data providers and licensors.
7 DISCLAIMER OF WARRANTIES. Tetra Insights DISClAIMS AND EXCLUDES, to the maximum extent permitted under applicable law, ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE, COLLATERALLY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THE TETRA INSIGHTS PLATFORM AND ALL ELEMENTS THEREOF (INCLUDING WITHOUT LIMITATION SOFTWARE AND HOSTED SERVICES) IS MADE AVAILABLE HEREUNDER “AS IS” AND WITHOUT WARRANTY. TETRA INSIGHTS DOES NOT GUARANTEE OR WARRANT THAT ANY ELEMENT OF THE TETRA INSIGHTS PLATFORM IS ERROR- OR DEFECT-FREE OR UNINTERRUPTED OR COMPLETELY SECURE, OR THAT ERRORS OR DEFECTS CAN OR WILL BE CORRECTED, AND TETRA INSIGHTS IS NOT OBLIGATED TO PROVIDE TECHNICAL SUPPORT OR MAINTENANCE WITH RESPECT TO THE TETRA INSIGHTS PLATFORM. USER ACKNOWLEDGES THE TETRA INSIGHTS PLATFORM IS STILL IN TESTING PHASE AND WILL CONTAIN DEFECTS. USER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE TETRA INSIGHTS PLATFORM.
8.1 Infringement Indemnity. Tetra Insights shall, at its expense, defend or at its option, settle any claim, action or allegation brought against User alleging that the Tetra Insights Platform infringes any valid copyright or patent of any third party, and shall pay any final judgments awarded or settlements entered into; provided that User gives prompt written notice to Tetra Insights of any such claim, action or allegation of infringement and gives Tetra Insights the authority to proceed as contemplated herein. In the event any infringement claim, action or allegation is brought or threatened, Tetra Insights may, at its option and expense: (a) procure for User the right to continue use of the Tetra Insights Platform; (b) modify, amend or replace the Tetra Insights Platform, or infringing part thereof with other products or services having substantially the same or better capabilities; or, if neither of the foregoing is in Tetra Insights’ opinion commercially practicable, (c) terminate this Agreement upon notice. The foregoing obligations will not apply to the extent the infringement arises as a result of (i) any use of the Tetra Insights Platform in a manner expressly prohibited by this Agreement; or (ii) any use by User of the Tetra Insights Platform in combination with other information, products, equipment, devices, software, systems or data not supplied by Tetra Insights. This Section states the entire liability of Tetra Insights, and User’s sole and exclusive remedy, with respect to infringement of any patent, copyright, trade secret or other intellectual property right. Tetra Insights will have the exclusive right to defend any indemnified claim (including the right to select and control the work of counsel) and make settlements thereof at its own discretion. User may not settle or compromise any indemnified claim, action or allegation, except with prior written consent of Tetra Insights. User shall give such non-monetary assistance and information as Tetra Insights may reasonably require to settle or defend indemnified claims.
8.2 Indemnification by User. User will defend, indemnify and hold Tetra Insights and its affiliates and its and their officers, directors, employees and agents, and Tetra Insights’ licensors and third party vendors and suppliers, from and against any and all liabilities, losses, damages, claims, allegations, actions, demands, fines, penalties, costs and expenses (including without limitation reasonable attorneys’ fees) (“Losses”) arising out of or relating to (i) User’s use of the Tetra Insights Platform except to the extent such Losses are covered by Tetra Insights pursuant to its indemnification obligation in Section 8.1); (ii) User Data (including without limitation Third Party Data and allegations of infringement or violation of third party rights); and (iii) User’s noncompliance with the AUP.
9 Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, In no event will Tetra Insights be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages, or any loss of revenue, profits, data or data use, arising out of OR IN CONNECTION WITH this agreement, EVEN IF SUCH DAMAGES WERE FORESEEABLE, AND Tetra Insights’ maximum AGGREGATE liability in connection with this agreement, on the basis of any theory of liability or cause of action, shall be limited to THE AMOUNTS PAID BY USER TO TETRA INSIGHTS UNDER THE ORDER FORM PURSUANT TO WHICH THE CLAIM ARISE.
10 Governing Law and Venue. This Agreement shall be interpreted and construed in accordance with the laws of Delaware, without regard to conflict of laws provisions. The parties hereby submit to the jurisdiction and venue of the state and federal courts in Delaware for purposes of all legal proceedings arising out of or relating to this Agreement. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. The parties negotiated this Agreement in good faith and at arms-length. Any ambiguities in the language of this Agreement are not to be construed or resolved against either party based on the fact that such party was principally responsible for drafting this Agreement. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY.
11.1 Export Control Laws. Each party shall comply with the export control laws of the United States which are applicable to the Tetra Insights Platform, and which may prohibit use of the Tetra Insights Platform in certain sanctioned or embargoed countries.
11.2 No Legal Advice. User acknowledges that Tetra Insights does not provide legal advice regarding compliance with laws, rules or regulations in the jurisdictions in which User uses the Tetra Insights Platform, including those related to data privacy. User acknowledges that the Tetra Insights Platform may be used in ways that do and do not comply with such laws, rules or regulations and it is User’s sole responsibility to monitor its compliance with all such relevant laws, rules or regulations. User acknowledges and agrees that not all features, functions and capabilities of the Tetra Insights Platform may be used in all jurisdictions, and User recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local law. User is responsible for such User-specific use decisions and Tetra Insights disclaims all liability for such decisions.
11.3 Independent Contractors. Tetra Insights and User are independent contractors. Neither party has the authority to bind or make any commitment on behalf of the other party. None of either party’s employees are entitled to any employment rights or benefits of the other party, and the parties are not joint venturers.
11.4 Waiver, Entire Agreement and Amendments, Representations, Severability and Purchase Orders. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will not be construed to be a waiver of such provisions, or in any way affect the right of either party to enforce such provision thereafter. This Agreement, together with the Order Form, encompasses the entire agreement between User and Tetra Insights with respect to the subject matter hereof and supersedes all prior representations, agreements and understandings, written or oral. This Agreement may not be altered, amended or modified except by written instrument signed by the duly authorized representatives of both parties, or as updated by Tetra Insights pursuant to the terms of this Agreement. User acknowledges and agrees that in entering into this Agreement it does not rely on any statement, representation (whether innocent or negligent) assurance or warranty (whether or not in writing) of Tetra Insights, a Tetra Insights affiliate or any other person (whether or not party to this Agreement) other than as expressly set out in the Agreement. User specifically agrees that it has not relied upon and its purchase of subscriptions is not contingent upon the future availability of any software, products, services, programs, modifications, enhancements or updates in entering into the payment obligations in this Agreement. If any provision, or portion thereof, of this Agreement is or becomes invalid under any applicable statute or rule of law, it is to be deemed stricken and the rest of the Agreement shall remain in full force and effect. The terms and conditions appearing on any purchase order issued by User for this Agreement, if any, shall not change, add to, or modify the terms or conditions of this Agreement and shall have no effect.
11.5 Assignment. User may not transfer or assign this Agreement, including by merger or operation of law, without Tetra Insights’ prior written consent, and any such attempted assignment shall be void and of no force or effect. Tetra Insights may assign this Agreement in its discretion.
11.6 Force Majeure. Tetra Insights shall not be held responsible for any delay or failure in performance hereunder caused in whole or in part by any cause outside of its reasonable control.
11.7 Notices. All notices or other formal or legal communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be considered properly given or made if hand delivered, mailed first class mail (postage prepaid and return receipt requested) or sent by recognized courier service (e.g., Federal Express, DHL, UPS): (i) if to User: to the attention of the person identified in the Order Form, and (ii) if to Tetra Insights: to the attention of its General Counsel.
11.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.1 “Authorized User” means a person employed or engaged by User and authorized by User to use the Tetra Insights Platform for User’s benefit in accordance with this Agreement, and to whom a password-protected account for use of the Tetra Insights Platform has been created.
12.2 “Confidential Information” means all information disclosed or made available by one party to the other in connection with this Agreement. Tetra Insights’ Confidential Information includes without limitation the features and functions of the Tetra Insights Platform that are not available to the general public, product plans, software and software documentation and specifications, the commercial terms (including pricing) of this Agreement and the Order Form, and all Tetra Insights Platform audit, performance and security test results (whether conducted by Tetra Insights or User or any third party). User’s Confidential Information includes without limitation User Data.
12.3 “User Data” means all data and information: (a) provided, submitted and/or otherwise inputted into the Tetra Insights Platform by User and/or Authorized Users; (b) generated by User and/or Authorized Users in the course of utilizing the Tetra Insights Platform; and (c) all copies, derivatives and transformations of the foregoing.
12.4 “Tetra Insights Platform” means Tetra Insights’ proprietary platform product comprising of hardware, software, information and hosted services, and as made available by Tetra Insights to User pursuant to the Order Form, and including all upgrades, updates, and modifications thereto, and all content therein other than User Data.
12.5 “Order Form” means the written (including digital) order form entered into between Tetra Insights and User identifying the specific Tetra Insights Platform to be made available to User, the number of Authorized Users, the Subscription Term, the fees payable by User to Tetra Insights, and such other terms as the parties may agree.
12.6 “Subscription Term” means the period of time during which Tetra Insights will make the Tetra Insights Platform available to User pursuant to the Order Form.
PLEASE PRINT THESE TERMS OF SERVICE FOR YOUR RECORDS.