PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY. IT IS A LEGAL AGREEMENT BETWEEN YOU AND EXAPTIVE. THERE ARE SOME KEY POINTS WE WANT TO MAKE SURE YOU DON’T OVERLOOK.
This Agreement (the “Agreement”) is entered into by you (the “Customer”) and Exaptive, Inc. (“Exaptive”). Customer and Exaptive are each a “Party” to this Agreement and collectively are the “Parties.” You would like to use some or all of the Exaptive Software described in this Agreement. Exaptive would like to provide a subscription enabling you to do so. The parameters of the subscription may change from time to time. Any new features which are added to Exaptive Software shall also be subject to the terms of this Agreement.
2. Accepting this Agreement; Applicability
2.2 Exaptive may change the terms of this Agreement at any time. In order to continue using the Exaptive Software, you must accept and agree to the new terms. If you do not agree to the new terms, your use of the Exaptive Software will be suspended or terminated by Exaptive. You agree that your acceptance of such new terms may be signified as described in paragraph 2.1.
2.3 The terms of this Agreement apply to you at all times you use Exaptive Software for any reason. If you are the End-User of another entity, these terms still apply to your use of Exaptive Software.
3.1 “Exaptive Software” shall mean all instances of the Exaptive Cognitive City or Exaptive Studio.
3.2 “Studio” or “Exaptive Studio” shall mean the software application(s) provided by Exaptive as the Exaptive Studio.
3.3 “Cognitive City” or “Exaptive Cognitive City” shall mean software application(s) provided by Exaptive as the Exaptive Cognitive City.
3.4 “Customer City” shall mean a Cognitive City to which access is controlled by Customer.
3.5 “Resource(s)” shall mean any End-User or Third Party content accessible via a Cognitive City, whether via hyperlink or download or viewable within the Cognitive City software. To the extent allowed by Exaptive Software, either a Customer or Exaptive may add Resources. Resources may include but are not limited to tools, analyses, articles, and datasets.
3.6 “Intellectual Property” shall include all:
3.7 “Exaptive Intellectual Property” shall mean all Intellectual Property owned by Exaptive, which shall include, but not be limited to, the Exaptive Software and any part of the Exaptive Software.
3.8 “Customer Intellectual Property” shall mean all Intellectual Property owned by Customer.
3.9 “Usage Data” shall mean electronic data and metadata collected by Exaptive about the use of Exaptive Software.
3.10 “Confidential Information” shall mean any of the following, whether in oral, written, or other tangible form:
3.11 “Third Party” shall mean any entity or individual other than Exaptive, Customer, and End-User(s).
3.12 “Customer’s Internal Purposes” shall mean use by Customer’s End-User(s) for the purpose of conducting Customer’s business.
3.13 “End-User(s)” shall mean a unique person, either an employee or contractor of Customer, given access by Customer to Exaptive Software via unique access credentials or a url. Customer’s End-User(s) shall not include granting any access whatsoever to Customer’s clients or customers or the public.
4.1 Subscription(s) to Exaptive Software.
4.2 End-User. Unless otherwise specified in writing and agreed to by Exaptive, Customer is the only authorized End-User of the Exaptive Software under this Agreement.
4.3 No License Fees. There are no fees for the Exaptive Software under this Agreement. Customer is solely responsible for any fees or other costs associated with Third Party software or services that it uses in conjunction with the Exaptive Software.
4.4 Support and Maintenance. Technical support requests can be submitted via email to firstname.lastname@example.org or (617) 826-9873. Exaptive will make commercially reasonable efforts to correct bugs and implement software updates that Exaptive determines, in its sole and absolute discretion, materially affect the operation of the Exaptive Software, as well as provide technical assistance to customer in using the Exaptive Software; provided that this shall not constitute a warranty of any kind, all such warranties having been disclaimed pursuant to Section 5.1. Without limitation on the foregoing, Exaptive shall in no event provide maintenance or repair necessitated by alteration or amendment to Exaptive Intellectual Property or any part thereof, relocation of Exaptive Intellectual Property or any part thereof unless previously agreed upon by Exaptive, use of ancillary equipment or software not suitable for use with Exaptive Software or any part thereof, or damage caused by virus, spyware, or lack of a firewall when updates have not been installed or where an update has not yet become available.
4.5 Access Changes; Changes to Exaptive Software. Exaptive reserves the right at any time and without prior notice to temporarily limit Customer’s access in order to perform repairs, make modifications, or as a result of circumstances beyond Exaptive’s control. Exaptive may modify any aspect of the Exaptive Software at any time, including but not limited to removing access or reference to Customer's Intellectual Property or content or Third Party Intellectual Property or content, e.g. Resources. No service levels or standards are guaranteed, except as expressly set forth in this Agreement.
5. Representations, Warranties, and Limitation of Liability
5.1 No Warranty. EXCEPT AS STATED IN THIS AGREEMENT, EXAPTIVE, ITS SUBSIDIARIES AND AFFILIATES, SUBCONTRACTORS AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXAPTIVE FURTHER DISLCAIMS THAT THE EXAPTIVE SOFTWARE MEETS STANDARDS FOR OPERATIONAL COMPLIANCE OR CERTIFICATION IN ANY PARTICULAR AREA, INCLUDING BUT NOT LIMITED TO GOVERNMENT OR INDUSTRY ASSOCIATION REQUIREMENTS. Without limiting the generality of the foregoing:
5.2 Customer Liability. Customer is solely responsible for any defects caused by
5.3 Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, SAVINGS OR REVENUES OF ANY KIND, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OTHER THAN WITH RESPECT TO BREACHES OF THE OBLIGATIONS SET FORTH IN SECTION 7. THIS PROVISION SHALL APPLY EVEN IN THE EVENT OF THE FAILURE OF AN EXCLUSIVE REMEDY. WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF EXAPTIVE TO CUSTOMER SHALL BE FIVE THOUSAND DOLLARS ($5,000).
6. Customer’s Limitations, Obligations, and Responsibilities.
6.1 No Unauthorized Distribution of the Exaptive Software. Except as otherwise set forth in this Agreement, Customer agrees not to rent, lease, lend, upload, host on any website or server, sell, redistribute, or sublicense the Exaptive Software, in whole or in part, or to enable others to do so. The Customer further agrees that it may not modify, make derivative works of, disassemble, access, review, reverse compile, or reverse engineer any part of Exaptive’s Intellectual Property, or access or use any part or element thereof, in order to build or support, or assist a Third Party in building or supporting, other products or services. In no event will Customer be entitled to access or review the object or source code of the Exaptive Software, unless it is made explicitly available for access and review by Exaptive at its sole discretion. The Customer agrees to make every reasonable effort to prevent unauthorized Third Parties from accessing and making unauthorized use of Exaptive Intellectual Property. Customer also agrees not to remove or destroy any proprietary markings or legends or any encrypted license keys or similar security devices placed upon or contained within any Exaptive Intellectual Property.
6.2 Lawful and Appropriate Use. Customer may not use the Exaptive Software or Resources to connect to any APIs in any way that violates laws, regulations, or the terms of the API. Resources must comply with all applicable criminal, civil, and statutory laws and regulations, including but not limited to all applicable privacy and data collection laws and regulations with respect to any collection, use or disclosure of user or device data. Resources may not be designed or marketed for the purpose of harassing, abusing, spamming, stalking, threatening, or otherwise violating the legal rights of others. Resources may not perform any functions or link to any content, services, information, or data or use any robot, spider, site search or other retrieval application or device to scrape, mine, retrieve, cache, analyze, or index software, data, or services provided by Exaptive or obtain or try to obtain any such data, except the data that Exaptive expressly provides or makes available to Customer in connection with the Exaptive Software. Customer agrees that it will not collect, disseminate, or use any such data for any unauthorized purpose. Resources must not contain any malware, malicious or harmful code, programs, or other internal components (e.g., computer viruses, trojan horses, “backdoors”) which could damage, destroy, or adversely affect the Exaptive Software or other software, firmware, hardware, data, systems, services, or networks.
6.3 Third-Party License(s). If Customer's Resource(s) include any Third Party Intellectual Property, including free and open-source software (“FOSS”), Customer agrees to comply with all applicable licensing terms provided by the Third Party or a FOSS license. If Customer discovers any conflict between its Resource(s) and a Third Party license, a FOSS license, or the terms of this Agreement, Customer agrees to immediately notify Exaptive of it and will cooperate with Exaptive to resolve such matter. Customer acknowledges that Exaptive may immediately cease distribution of or remove access to any Resource(s) and may refuse to accept any subsequent submissions to the Exaptive Software until such matter is resolved to Exaptive’s satisfaction.
6.4 Customer Solely Responsible. Customer is solely responsible for proper use of Third Party software or Intellectual Property it uses in conjunction with the Exaptive Software. Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities, and services necessary to enable its access and use of the Exaptive Software. Customer is solely responsible for limiting access to the Exaptive Software to itself, the only End-User. Exaptive is not responsible for any damages Customer causes or laws Customer breaks. Customer agrees that it will not seek any regulatory marketing permissions or make any determinations that may result in any Exaptive products being deemed regulated or that may impose any obligations or limitations on Exaptive. Customer agrees to promptly notify Exaptive of any complaints or threats of complaints Resource(s) in relation to any legal or regulatory requirements. Customer represents and warrants that it has all necessary rights to own or use the Customer Intellectual Property or any Third Party Intellectual Property used by Customer in connection with this Agreement.
7. Ownership of Intellectual Property; Confidential Information.
7.1 Intellectual Property.
7.2 Confidential Information
8. Term and Termination
8.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue in full force and effect for so long as the Customer has active subscriptions or licenses under this agreement.
8.2 Termination for Breach. If Customer shall breach any of its obligations hereunder, Exaptive may terminate this Agreement and discontinue Customer access to the Exaptive Software immediately. In addition, this Agreement may be terminated by Exaptive if the Customer:
8.3 Termination without Cause. Either party may terminate this Agreement at any time, with or without cause, upon written notice to the other Party.
8.4 Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement, all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and Customer shall immediately cease all use of and other activities with respect to the Exaptive Intellectual Property and deliver to Exaptive, or at Exaptive’s written request destroy, and permanently erase from all devices and systems that Customer directly or indirectly controls, any Exaptive Intellectual Property or Confidential Information. At Exaptive’s request, Customer shall certify to Exaptive in a signed and notarized written instrument that it has complied with the requirements of this Section 8.4.
8.5 Survival. The expiration or prior termination of this Agreement for whatever reason shall not affect the accrued rights of either Exaptive or Customer arising under this Agreement and Sections 5, 6, 7 and 9.2, along with any other provisions which based on their nature should survive, shall survive such expiration or termination.
9.1 Independent Status of Parties. Each Party shall act as an independent contractor and shall not bind nor attempt to bind the other Party to any contract, or any performance of obligations outside of this Agreement. Nothing contained or done under this Agreement shall be interpreted as constituting either Party as the agent of the other Party in any sense of the term whatsoever unless expressly so stated, and neither Exaptive nor its employees are eligible for any Customer employee benefits.
9.2 Indemnification. In the event that any claim or legal proceedings are brought by a Third Party against Exaptive for any reason arising out of Customer’s use of Exaptive Intellectual Property, including without limitation, any claim against Exaptive alleging that any Customer Intellectual Property or any Third Party Intellectual Property used by Customer violates or infringes upon such Third Party’s Intellectual Property rights, the Customer agrees to indemnify, defend, and hold harmless Exaptive for any damages arising out of any such claim or legal proceeding, and pay any costs, damages and reasonable attorneys’ fees arising out of or resulting from any such claim or legal proceeding.
9.3 Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. For the avoidance of doubt, the following shall not apply:
9.4 Notices. Except as otherwise specified, all notices, instructions and other communications hereunder or in connection herewith shall be in writing and shall be sent by facsimile transmission or email address, in each case to the contact information set forth below.
Notices to Exaptive shall be addressed to :
Fax: 617 812-4776
Notices to Customer shall be addressed to : [the name and email addresses provided by Customer in the process of registering for and agreeing to this Agreement]
9.5 Entire Agreement. This Agreement constitutes the full understanding of the parties with respect to the subject matter hereof and supersedes all prior understandings and writings relating thereto. No waiver, alteration or modification of any of the provisions hereof shall be binding unless made in writing and signed by the parties.
9.6 Construction. Unless the context expressly requires otherwise,
Headings in this Services Agreement are used for convenience only and shall not be used in the construction of the meaning of this Services Agreement. The language used in this Services Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against either Party.
9.7 Severability. In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provision shall be not be affected, and the court shall construe the provision, to the maximum extent possible, to accomplish the original business purpose.
9.8 Assignment. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by Customer without the prior consent of Exaptive, provided, however, that Customer may assign this Agreement in connection with a sale of substantially all of Customer’s assets or a merger or equity transaction involving a transfer of more than 50% of the ownership or change of voting control of the Customer (each a “Change of Control”). A Change of Control shall be considered an assignment for purposes of this Section. Any assignment in violation of this Section 9.8 shall be void and of no force or effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns, subject to provisions of this Section.