IMPORTANT – PLEASE READ THESE TERMS CAREFULLY
THIS AGREEMENT GOVERNS YOUR USE OF OUR SOFTWARE. This Agreement also applies to any Fixes and Updates to the Software except to the extent that there are terms that are included with those items which supersede this Agreement.
IF YOU REGISTER FOR A FREE TRIAL FOR OUR SOFTWARE, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Software if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Software for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes. You will have the rights set forth below for so long as Licensee complies with the terms of this Agreement.
This Agreement was last updated on October 1, 2017. It is effective between You and Us as of the date You accept this Agreement.
Table of Contents
- Free Trial
- Our Responsibilities
- Use of the Software and Content
- Non-PA Application Providers
- Fees and Payment for Software
- Proprietary Rights and Licenses
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Mutual Indemnification
- Limitation of Liability
- Term and Termination
- Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- General Provisions
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
"Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Subscription Agreement.
“Beta Software” means Software or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by Us from publicly available sources or third-party content providers and made available to You through the Software, Beta Software or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the applicable instructions, user guides, manuals, release notes and policies, as updated from time to time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-PA Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third-party and interoperates with the Software, including, for example, an application that is developed by or for You.
“Order Form” means an ordering document or online order specifying the Software to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. The Order Form sets forth the Software that You are entitled to Run, the number of Users and the Territory.
“Software” means the version of the computer software applications identified on an Order Form, and all Fixes and Updates thereto, as described in the Documentation. Software excludes Content and Non-PA Applications.
“Run,” “Runs” or “Running” means to load an Instance of the Software or Beta Software into the memory of a Server and execute one or more instructions.
“Server” means a physical or virtualized hardware system capable of Running the Software. A hardware partition or blade is a separate physical hardware system.
“Territory” means the geographic regions set forth in the Order Form.
“Updates” means minor releases of the Software containing Fixes, minor enhancements or user interface changes. Updates are generally indicated by a change in the numeric identifier for the Software in the digit to the right of the first decimal point or a change to the right of the second decimal point (e.g., a change from version x.x.x to x.y.x or from version x.x.x to x.x.y).
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Software provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Software utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Pyramid Analytics company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Order Forms.
“Your Data” means electronic data and information submitted by or for Customer to the Software, excluding Content and Non-PA Applications.
- FREE TRIAL
2.1. If You register on Our website for a free trial, We will make the Software available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the Software; or (b) the start date of any subscriptions ordered by You for such Software; or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
2.2. ANY OF YOUR DATA YOU ENTER INTO THE SOFTWARE, AND ANY CUSTOMIZATIONS MADE TO THE SOFTWARE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SOFTWARE AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADEDS, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
2.3. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Software before You make Your purchase.
- OUR RESPONSIBILITIES
3.1. Provision of Software. We will make the Software and Content available to You pursuant to this Agreement and the applicable Order Forms, and provide applicable standard support for the Software to You at no additional charge, and/or upgraded support if purchased.
3.2. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.3. Beta Software. From time to time, We may make Beta Software available to You at no charge. You may choose to try such Beta Software or not in Your sole discretion. Beta Software are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Software are not considered “Software” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Software, and use of any related Non-PA Applications and Content, shall apply equally to Your use of Beta Software. Unless otherwise stated, any Beta Software trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Software becomes generally available without the applicable Beta Software designation. We may discontinue Beta Software at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
- USE OF SOFTWARE AND CONTENT
4.1. Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Software and access to Content are purchased as subscriptions, and (b) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2. Usage Limits. Software and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Software or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Software or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3. Protection of Your Data. We do not maintain administrative, physical or technical safeguards for the security, confidentiality or integrity of Your Data. You must provide those safeguards which include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Software and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
4.4. Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Software and Content, and notify Us promptly of any such unauthorized access or use, (d) use the Software and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-PA Applications with which You use the Software or Content.
4.5. Usage Restrictions. You will not (a) make the Software or Content available to, or use the Software or Content for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Software or Content, or include the Software or Content in a service bureau or outsourcing offering, (c) use the Software or Non-PA Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Software or Non-PA Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein, (f) attempt to gain unauthorized access to the Software or Content or its related systems or networks, (g) permit direct or indirect access to or use of the Software or Content in a way that circumvents a contractual usage limit, or use the Software to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy the Software or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of the Software or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access the Software or Content in order to build a competitive product or service or to benchmark with a Non-PA product or service, or (l) reverse engineer the Software (to the extent such restriction is permitted by law). Any use of the Software in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of the Software, may result in Our immediate suspension of Your use of the Software, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.6. External-Facing Software. If You use electronic messages or if You are hosting or posting content on external-facing websites, You are solely responsible for complying with applicable law in Your protection of the underlying data and the use of any cookies or other tracking technologies.
4.7. Removal of Content and Non-PA Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event, You will promptly remove such Content from Your systems. If We receive information that a Non-PA Application hosted by You may violate applicable law or third-party rights, We may so notify You and in such event, You will promptly disable such Non-PA Application or modify the Non-PA Application to resolve the potential violation. If You do not take required action in accordance with the above, We may request that you disable the applicable Content, Software and/or Non-PA Application until the potential violation is resolved.
- NON-PA APPLICATION PROVIDERS
5.1. We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-PA Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-PA provider, product or service is solely between You and the applicable Non-PA provider. We do not warrant or support Non-PA Applications or other Non-PA products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.2. Non-PA Applications and Your Data. If You choose to use a Non-PA Application with the Software, You grant Us permission to allow the Non-PA Application and its provider to access Your Data as required for the interoperation of that Non-PA Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-PA Application or its provider.
5.3. Integration with Non-PA Applications. The Software may contain features designed to interoperate with Non-PA Applications. To use such features, You may be required to obtain access to such Non-PA Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-PA Applications. We cannot guarantee the continued availability of such features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-PA Application ceases to make the Non-PA Application available for interoperation with the corresponding Software features in a manner acceptable to Us.
- FEES AND PAYMENT FOR SOFTWARE
6.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form (i) fees are based on Software and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payment. You authorize Us to charge You for all Software listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Your rights to use the Software until such amounts are paid in full. Upon the expiration or termination of the Term, some or all the Software may cease to operate without notice. Upon expiration or termination of the Term, You may not use the Software unless You have renewed Your subscription.
6.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
- PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Software and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
7.3. License to Your Data and Applications. We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-PA Applications or such program code.
7.4. License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ products and services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ products and services.
7.5. Federal Government End Use Provisions. We provide the Software, including related technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.6. Verification and Reporting. At Our written request, which shall be no more than once in each 12-month period, You shall provide Us with a signed statement: (a) verifying that the Software and Documentation are being used pursuant to the provisions of this Agreement; and (b) identifying the number of Instances and number of Users using the Software. At Our written request and at a mutually agreed time, which shall be no more than once in each 12-month period, You shall grant Us access to Your sites in order to audit the use of the Software and Documentation. Such audit shall be conducted during Your regular business hours and without impairing Your business operations. If such audit establishes that You have used the Software or Documentation beyond the grant set forth in this Agreement and in applicable Order Form(s), We reserves the right to charge You for the costs of performing the audit in addition to 125% of the standard list price for such additional use of the Software and Documentation. When Users activate Your subscription or when You install Updates, We connect to Our servers. We may keep track of information such as whether the Update was successful or not. We may use the information collected through activation or Updates to validate Your copy of the Software and confirm that it is genuine and properly licensed.
7.7. Privacy. We recognize privacy is important to Licensee and their users. We may collect non-personally identifiable data (anonymous data) from users. For example, we may collect information about the type of browser and operating systems being used. Information that We collect is stored on servers that We solely manage, using standard security procedures and practices appropriate to the nature of the information to protect information from unauthorized access, destruction, use, modification, or disclosure. If we learn that we have unexpectedly stored personal information (e.g., if we become aware that a URL that we store contains personal information), we will use commercially reasonable efforts to anonymize or purge this information. We are committed to respecting the privacy of non-personally identifiable data and anonymous user data gathered.
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Software and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information, however, does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third-party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-PA Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
- REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. Our Warranties. We warrant that during an applicable subscription term (a) We will not materially decrease the overall security of the Software; (b) the Software will perform materially in accordance with the applicable Documentation for a period of twelve (12) months from the date of delivery of the License Key; and (c) subject to the “Integration with Non-PA Applications” section above, We will not materially decrease the overall functionality of the Software. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3. Disclaimers. The Software is complex computer software. Its performance will vary depending on YOUR hardware platform, software interactions, the configuration of the Software and other factors. The Software is neither fault tolerant nor free from errors, conflicts or interruptions. WE do not warrant or guarantee that the Software will meet YOUR requirements, THAT THE SOFTWARE will operate error-free, THAT YOUR USE OF THE SOFTWARE WILL BE uninterrupted, or that WE will correct all errors in the Software.
In addition, thE warranty In Section 9.2 above does not cover, and WE shall have no responsibility or liability for problems caused by modifications or customizations to the Software made by YOU or any other third-party acting on YOUR behalf, or events beyond OUR reasonable control. TO THE EXTENT AN IMPLIED WARRANTY OR GUARANTEE CANNOT BE DISCLAIMED, IT WILL ONLY BE EFFECTIVE FOR THE TERM OF THE LIMITED WARRANTY.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
- MUTUAL INDEMNIFICATION
10.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the Software infringes or misappropriates such third-party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to the Software, We may in Our discretion and at no cost to You (i) modify the Software so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Software in accordance with this Agreement, or (iii) terminate Your subscriptions for the Software upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Content, a Non-PA Application or Your use of the Software in violation of this Agreement, the Documentation or applicable Order Forms.
10.2. Limitations on Indemnity Obligations. We shall have no liability for any claim of infringement based upon: (i) modification of the Software by any party other than Us; (ii) use by Licensee of a superseded or altered release of the Software or Documentation if such infringement would have been avoided by the use of a current unaltered release of the Software or Documentation that We provide to You; (iii) the combination, operation or use of any Software furnished under this Agreement with software, data, hardware or other materials not furnished by Us if such infringement would have been avoided by the use of the Software and Documentation without such software, data, hardware or other materials or data; or (iv) any trade secret claim, where Licensee acquires the trade secret: (A) through improper means; (B) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (C) from a person (other than Us) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. Licensee agrees to defend and hold Us and Our licensors, and their respective employees, officers and directors harmless against any loss, cost or expenses incurred as a result of a claim based on the foregoing.
10.3. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Software or Content in violation of the Agreement, the Documentation, Order Form or applicable law (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.4. Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
- LIMITATION OF LIABILITY
11.1. Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SOFTWARE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. THIS EXCLUSION, HOWEVER, DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. THE FOREGOING LIMITATION WILL NOT APPLY TO LIABILITY CAUSED BY PYRAMID’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN TWO (2) YEARS AFTER THE CAUSE OF ACTION HAS ACCRUED.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
- TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2. Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
12.3. Renewal Pricing. The per-unit pricing during any renewal term will increase by 8% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term.
12.4. Discounts. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Software has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
12.5. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. We may, at any time, terminate your right to use and access the Software if: (a) You act in a manner that clearly shows you do not intend to, or are unable to, comply with these terms; (b) You fail to make the timely payment of fees for the Software or the Services, if any; (c) We are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful); (d) We elect to discontinue the Services or Software, in whole or in part, (such as if it becomes impractical for us to continue offering Services in your region due to change of law); or (e) there has been an extended period of inactivity in Your free account.
12.6. Return or Destruction of Software and Documentation upon Termination of License. If any license granted under this Agreement is terminated in accordance with the terms of this Agreement, You must within thirty (30) days thereafter: (a) cease using the Software, Content and Documentation; and (b) return the Software, Content and Documentation and any copies thereof to Us or certify in writing that it has been destroyed. This requirement applies to copies of the Software, Content and Documentation in all forms, partial and complete, in and on all types of media and computer memory, and whether or not modified or merged into other materials.
12.7. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.5 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.5, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.8. Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Customer Data Portability and Deletion,” “Removal of Content and Non-PA Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
- WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
13.1. General. You are contracting with the entity specified in the Order Form.
Our Notices should be addressed to: CFO, 151 Kingsfordweg, Amsterdam, NL 1043GR.
Your Notices should be addressed as specified in the Order Form.
13.2. Governing Law. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of England as if performed wholly within England and without giving effect to the principles of conflicts of laws. The Parties hereby consent to the exclusive jurisdiction of the courts located in England. The Parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
13.3. Attorney’s Fees. In any suit or proceeding between the Parties relating to this Agreement, the prevailing Party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
13.4. Informal Dispute Resolution. Except for the right of either Party to apply to a court of competent jurisdiction for injunctive relief, if any dispute arises between the Parties, the Parties shall first attempt to resolve such dispute among themselves prior to resorting to any formal legal action. Either Party may notify the other Party in writing of the occurrence of a dispute and establish a mutually convenient time and place to discuss the dispute. In any event, the meeting shall occur within a commercially reasonable period of time (which period shall not exceed fifteen (15) days from the date of the notice) and shall take place between Pyramid’s account executive, Licensee’s equivalent representative and Licensee’s Chief Information Officer or equivalent. If the meeting does not resolve the dispute, either Party may then give the other Party written notice that the dispute continues. Within a commercially reasonable period of time after such notice, which period shall not exceed fifteen (15) days from the date of such notice, designated executives of both Parties shall meet to discuss the issue at a mutually convenient time and place. Such executives shall be at each Party’s Vice President level or above. If the dispute has not been resolved within a reasonable period of time thereafter, then either Party may pursue applicable remedies under this Agreement, at law, or in equity.
13.5. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Software system administrator designated by You.
13.6. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
- GENERAL PROVISIONS
14.1. Export Compliance. The Software, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use the Software or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
14.2. Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us.
14.3. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Software and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
14.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
SUPPORT AND MAINTENANCE ADDENDUM
Support and Maintenance Addendum
IMPORTANT – PLEASE READ THESE TERMS CAREFULLY
This Pyramid Analytics Support and Maintenance Addendum (the “Addendum”) is between the Pyramid Analytics entity specified in the Order Form (“Pyramid”) and Subscriber, and is an addendum to the Subscription Agreement (the “Agreement”) which governs Subscriber’s use of the Software. The terms of the Subscription Agreement are incorporated herein and made a part of this Addendum by this reference.
This Addendum sets forth the terms and conditions governing Pyramid’s provision of Support and Maintenance Services for the Software (the “Services”) as described in Section 1 below. By entering into this Addendum, the Parties acknowledge and reaffirm their agreement to the Agreement. Any capitalized terms not otherwise defined herein shall have the meanings given to them in the Agreement.
By purchasing or using the Services, Subscriber agrees to be bound by the terms of this Addendum. Subscriber will have the rights set forth below for so long as Subscriber complies with the terms of this Addendum.
Table of Contents
- Support and Maintenance Services
- Fees and Term
- Warranty; Disclaimers
- Limitation of Liability
- SUPPORT AND MAINTENANCE SERVICES.
1.1. Scope of Support and Maintenance Services. Pyramid will provide the following Services subject to Subscriber’s payment of the Subscription fees set forth on Order Forms:
- Technical Support. Pyramid will provide technical support to Subscriber’s technical point of contact (“TPOC”) for problems encountered by Subscriber while installing or using the Software where there is a reasonable expectation that the problem is caused by the Software. Subscriber may submit requests for technical support by: i) submitting a support ticket on the online support site at http://pyramidanalytics.com/support; or ii) sending e-mail to firstname.lastname@example.org. Pyramid will respond to all e-mail within 16 business hours. This response time does not include resolution time. Pyramid will use commercially reasonable efforts to resolve all support requests promptly.
Pyramid will provide the Services remotely in English from Pyramid’s site unless otherwise agreed in a Order Form signed by the Parties. Additional fees will apply, including reasonable travel and living expenses, where onsite visits are required.
- Updates and Upgrades. Subscriber is entitled to receive a copy of all Updates, Upgrades and revised Documentation for the Software licensed when these become generally commercially available during Term of this Addendum. “Upgrades” means major releases of the Software containing new enhancements, functionality or features. Upgrades are generally indicated by a change in the numeric identifier for the Software in the digit to the left of the first decimal point (i.e., a change from version x.x.x to y.x.x). Subscriber shall be solely responsible for the installation of Updates and Upgrades. For the avoidance of doubt, Subscriber will not be entitled to receive new products, programs, modules or features that Pyramid advertises or licenses separately from the licensed Software.
- Pyramid Knowledge-base. Subscriber will be provided with access to the Pyramid self-help knowledge base available at http://www.pyramidanalytics.com/support.
1.2. Exclusions from Support and Maintenance Services.
- Covered Software Versions. The Services are provided only for versions of the Software that are actively being offered by Pyramid, plus those versions of the Software that have not passed beyond their Support Period as set forth below.
- Support Period. Pyramid will make technical support available for each version of the Software from the date of its general commercial release until 12 months after the general commercial release date of the subsequent Upgrade (the “Support Period”). Upon the release of an Upgrade to the Software, Pyramid will cease selling licenses to and providing any new enhancements for the prior version. Notwithstanding the foregoing, this Addendum entitles Subscriber to continue purchasing additional User Licenses for the prior version until ninety (90) days prior to the end of the Support Period for that version. If a problem arises with the prior version, Pyramid may, at its sole discretion, either: i) recommend a workaround; ii) issue a patch for the previous version; or iii) recommend that Subscriber upgrade to the current version.
- Additional Exclusions. The following matters are not covered by the Services. If Pyramid reasonably determines that a reported problem is caused by any of the following, Pyramid will charge Subscriber for any Services rendered for the support request on a time and materials basis at Pyramid's then current standard professional services rates:
- Any problem resulting from the misuse, improper use, or damage to the Software;
- Any problem caused by modifications to the Software not made or expressly authorized in writing by Pyramid;
- Any problem caused by or resulting from third party software; and
- Any problem caused by or resulting from the equipment or hardware used with the Software.
The Services do not include the installation of Updates or Upgrades, or the recovery of lost data. Notwithstanding the foregoing, Pyramid will not charge Subscriber for a support request to the extent that Pyramid reasonably determines that the problem was caused by a programming error in the Software.
1.3. Subscriber Responsibilities. Pyramid’s performance of the Services depends on Subscriber’s performance of the following obligations. Pyramid will not be responsible for delays in providing the Services caused by Subscriber failure to perform these obligations.
- Subscriber must install each Update within three (3) months of the date of its general commercial release.
- Subscriber will designate a Technical Point of Contact (TPOC) for the purpose of submitting support requests and receiving support under this Addendum.
- Subscriber will reasonably cooperate with Pyramid in its delivery of the Services. Such cooperation includes promptly providing Pyramid with:
- all the steps necessary to recreate the reported problem and any other information or documentation that Pyramid may reasonably request; and
- reasonable assistance in re-creating and diagnosing the problem.
- Subscriber is responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, Internet connectivity, and other hardware necessary to operate the Software.
- Pyramid technical support personnel may require remote access to Subscriber’s systems in order to diagnose and resolve technical support issues. Subscriber agrees to provide Pyramid with access codes, procedures and permissions to access the Subscriber’s systems solely for the purpose of Pyramid’s provision of technical support. Pyramid personnel will only access those systems authorized by Subscriber using methods approved by Subscriber and under Subscriber supervision.
- FEES AND TERM. The Services are purchased as part of the annual subscription service fees. The Services will be performed during the Term of the subscription service.
- TERMINATION. Either Party may terminate this Addendum for a material breach of its terms by the other Party, provided the breach has not been remedied within thirty (30) days of receipt of a written notice from the non-breaching Party specifying the breach. Subscriber may cancel its Services subscription by giving Pyramid at least sixty (60) days prior written notice. Pyramid may discontinue offering the Services at the end of a Term by giving Subscriber thirty (30) days prior written notice. Pyramid, at its sole option, may cease providing the Services to Subscriber if Subscriber fails to pay in full any outstanding and undisputed fees due under this Addendum within thirty (30) days after the date of Pyramid’s notice to Subscriber of nonpayment. Pyramid will re-commence providing the Services upon receipt in full of all such past due amounts.
- WARRANTY; DISCLAIMERS. Pyramid warrants that the Services will be performed in a workmanlike manner in accordance with industry standards. COMPANY MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SUBJECT MATTER OF THIS ADDENDUM, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTY OF ANY KIND RESPECTING ANY SERVICES PERFORMED HEREUNDER.
- LIMITATION OF LIABILITY. THE TOTAL CUMULATIVE LIABILITY OF COMPANY TO SUBSCRIBER FOR ANY AND ALL LIABILITY ARISING UNDER OR RELATED TO THIS ADDENDUM, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, NEITHER PARTY, NOR ANY OF ITS SUBSIDIARIES OR SUPPLIERS, WILL BE LIABLE FOR ANY INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING IN CONNECTION WITH THIS ADDENDUM, THE SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORESEEABLE. HOWEVER, THIS EXCLUSION DOES NOT APPLY TO EITHER PARTY’S LIABILITY TO THE OTHER FOR VIOLATION OF ITS CONFIDENTIALITY OBLIGATIONS OR OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
6.1. Communications. Except as otherwise expressly set forth herein, all written notices and invoices required to be sent shall be deemed to have been sent when posted by pre‑paid post or sent by courier or overnight delivery service to the addresses set forth on the Order Form or to such other address as may be designated by a Party and shall be deemed received within five (5) working days if sent by first class post or within one working day if sent by courier or overnight delivery service.
6.2. No Assignment. This Addendum may not be assigned by Subscriber without Pyramid’s prior written consent, which consent shall not be unreasonably withheld.
6.3. Force Majeure. Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control, including without limitation, acts of God, earthquake, labor disputes, shortages of supplies, actions of governmental entities, riots, war, fire, epidemics, terrorism, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused Party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay.
6.4. Relationship of the Parties. Nothing in this Addendum shall be construed to create any agency, employment, joint venture, or franchise relationship between Subscriber and Pyramid. Pyramid shall be an independent contractor of Subscriber for the performance under this Addendum.