This Software License and Subscription Agreement (the “Agreement”) is made by and between provider identified on the applicable Order (as defined below) (“Provider”) and customer identified on the applicable Order (“you”, “your”, or “Customer”) for use of Provider’s Software, Services and/or Products (each as defined below) (collectively, “Solutions”). Each party hereto shall be referred to as “Party”, and collectively, the “Parties”. The Agreement consists of the terms and conditions set forth below, any exhibits, addenda, or appendices identified below, and any Orders that properly incorporate this Agreement as controlling.

This Agreement is effective immediately upon the earlier of: (1) submission of an Order, (2) accepting these terms by clicking a box indicating Customer’s acceptance of the Agreement on the Provider website or during the installation process of any of Provider’s Software, or (3) access or use of the relevant Solutions by the Customer (“Effective Date”). If you do not accept this Agreement (or you are not authorized to accept this Agreement on behalf of your employer or other person or entity on whose behalf you use the Software or Solutions), then you may not access, install or use the Software or Solutions. If you do not accept this Agreement, then please delete any copies of the Software on your system(s) and return any Software to Provider.

Provider reserves the right to modify the terms of this Agreement at its discretion at any time with future releases of the Software, at which point you will be asked to accept the modified Agreement.

To the extent that there exists a previously negotiated license and/or subscription agreement between the Parties that is currently in effect at the Effective Date (“Prior Negotiated Agreement”), the provisions of any such Prior Negotiated Agreement shall control unless expressly provided otherwise in such other agreements. If there is no such Prior Negotiated Agreement, then the provision of the Solutions by Provider, and Customer’s use thereof, shall be governed by this Agreement. For the avoidance of doubt, any (pre-printed) terms of Customer or references thereto on Customer purchase orders or like order documents shall not be applicable and will not form part of, or be incorporated into, the Agreement.

In consideration of the foregoing and of the mutual promises contained herein, Provider and Customer agree as follows:

(1) Rights Granted and Permitted Use

(a) SaaS Solutions. Upon and subject to receipt of payment by Provider of the applicable Fees (as defined below), Provider will grant to Customer a non-exclusive, non-transferable right to access and use the purchased SaaS Solutions solely for its internal business operations, subject to this Agreement, the Documentation, and any scope of use restrictions and Solution descriptions on the applicable Order. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Users will not exceed the number set forth in the Order(s) except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.

(b) Licensed Solutions. Upon and subject to receipt of payment by Provider of the applicable Fees, Provider will grant to Customer for use in connection with its internal business operations a non-exclusive, non-transferrable license to the Software and Documentation, subject to the Permitted Use and the terms set forth in this Agreement, the Documentation, and any scope of use restrictions and Solution descriptions in the applicable Order. Licensed Solutions may be one of the following types:

(i) Term Licenses: A Licensed Solution that is offered for a limited time specified in the Order, subject to compliance with this Agreement and any restrictions in the applicable Order.
(ii) Perpetual Licenses: A Licensed Solution that is offered for an indefinite period, subject to compliance with this Agreement and any restrictions in the applicable Order. Unless a Licensed Solution is clearly indicated as a perpetual license in the Order, all Licensed Solutions are a Term License.

(c) Use Restrictions. Customer shall not use the Software or Services for any purposes beyond the scope of the licenses/access granted in this Agreement. Customer agrees (a) subject to any non-waivable rights Customer may enjoy under applicable law, not to decompile, disassemble, reverse engineer, or otherwise attempt to derive the Software’s source code from the object code; (b) not to modify, enhance, change the data structures for or create derivative works from, the Software, (c) not to rent, lease, sell, sublicense or otherwise transfer the Software to third parties; (d) not to make the Software available in any form to any person other than Customer’s employees, agents and contractors whose job performance requires such access; (d) not to remove any legends, trademarks, trade names, copyright marks or proprietary notices from the Software or Documentation; (f) not to store, transmit, or upload any data or material that contains any Virus; (g) not to access all or any part of the Software and Documentation in order to build a product or service which competes with the Software and/or the Documentation; (h) to use reasonable care and protection to prevent the unauthorized use, copying, publication or dissemination of the Software, and (i) if applicable, use, or distribute the Academic Versions for any commercial purpose, competitive research, consulting or other non-academic purposes or for any purpose other than for use by students and faculty of educational institutions. Customer shall not allow access to the Software by any service bureau, third party outsourcer, or other similar third party service provider unless Provider consents to such access in writing.

(d) Copies of Licensed Solutions. Customer may make a reasonable number of backup copies of the Licensed Solutions, consistent with its normal backup or disaster recovery procedures, or as otherwise permitted under the applicable Order. Customer must maintain a log of the number and location of all originals and copies of the Licensed Solution(s), which shall be provided to Provider upon request. Any copies made for disaster recovery purposes may not be used by you in any manner except in the event of a disaster. In the event of a disaster which causes you to use any backup copy of the Licensed Solution(s), you must promptly inform Provider of the disaster and must stop using such copy promptly after the disaster is abated.

(e) Evaluation. If you are installing the Software pursuant to an Evaluation issued by the Provider, then you must: (a) only access and use the Software (and any results or output obtained from the Software) for the sole purpose of evaluating the suitability of the Software for your internal business operations (and you must not use the Software for any other purpose); and (b) only access and use the Software for the duration of the Evaluation and in accordance with any instructions provided by the Provider in conjunction with the Evaluation.

(f) You acknowledge that the Software may collect usage data, and may analyze such data, among other analysis and protection procedures, to limit your access to (and use of) the Software to the scope of use permitted under the applicable License, or to cause the Software to cease to operate without prior notice upon expiry or termination the License or this Agreement.

(2) Maintenance

(a) Maintenance. You may elect to procure Maintenance for the Software pursuant to an Order. Provider will provide Maintenance for the period set forth in the Order (the “Maintenance Period”). Any such Maintenance will be provided by Provider or its Affiliates or subcontractors using commercially reasonable efforts and subject to the terms of this Agreement, the Order and Provider’s applicable maintenance and support policies in effect at the beginning of the then-current Maintenance Period. Provider’s obligation to provide you with Maintenance for Third-Party Software is limited to providing you with the Maintenance that the third-party licensor provides to Provider. If you order Maintenance, then you may not exclude any portion of the total Software licensed by you from that Maintenance. Only genuine Software is covered by Maintenance.

(b) Maintenance Renewal. Provider reserves the right, at any time in its sole discretion, to vary the Fees applicable to Maintenance by providing written notice to you (which varied fees will apply from the next applicable Maintenance renewal and thereafter). Third-Party Software Maintenance fee increases may exceed the applicable Maintenance Fee increases applied to the Software. Unless otherwise set forth in the applicable Order, Maintenance fees after the initial Maintenance Period are due on the first day of the last month of the prior Maintenance Period. If applicable, Provider may prorate Maintenance fees so that Maintenance fees for all Software licensed by you are renewable on the same date even if the Software was not ordered on the same date. In the event that you decline or terminate Maintenance, and you subsequently order or reinstate Maintenance, you shall pay: (a) the cumulative Maintenance fees for that period during which Maintenance was declined or terminated at the fee for your last year of Maintenance plus all applicable price increases; and (b) an additional Maintenance reinstatement fee; in addition to (c) Maintenance fees for the current Maintenance Period at the then-current list price.

(c) Exclusions from Maintenance. Provider shall not be obliged to provide Maintenance in respect of: (a) improper use of the Software; (b) Software that has been the subject of unauthorised alteration or modification; (c) failure to comply with the directions of Provider including any reasonable requests for assistance; or (d) use of the Software outside of an Approved Operating Environment. Without limitation, Provider reserves the right not to provide support and assistance to you, where you have not made reasonable attempts to deploy Updates offered by Provider in connection with the Maintenance. Provider further reserves the right not to provide support and assistance to you in conjunction with Maintenance, if you have not received reasonable training in the use of the Software. You must reasonably cooperate with Provider by providing access to your Approved Operating Environment, to the extent required to diagnose or resolve issues with the Software.

(d) Customisations. Provider shall not be responsible for providing Maintenance for any customisations or modifications to the Software. If Provider agrees to provide Maintenance for customisations or modifications to the Software, then additional Maintenance fees may apply.

(3) Services

(a) General. Provider will provide the Services as set forth in the Order and any such Services will be provided by Provider, its Affiliates or subcontractors using commercially reasonable efforts and subject to the terms of this Agreement, the Order and Provider’s applicable policies. Such Services will not be initiated, and the Provider shall incur no obligations with respect thereto, until it approves in writing such services in an Order. The Provider shall not be held liable for any delays in providing Services that are attributable to the actions or inactions of the Customer. Additional services that are required because of Customer’s action, inaction or failure to meet its obligations, including delays or wait time caused by issues related to Customer’s hardware and software, shall be billable to Customer and will be invoiced at Provider’s then-current rates.

(b) Expenses. Unless otherwise agreed in an Order, all travel and related expenses necessitated by the Services being rendered by Provider hereunder at Customer designated sites will be reimbursed by Customer to Provider plus a 10% administration fee. Such travel and related expenses will include airfare, transportation to and from the Customer site, lodging, meals and miscellaneous (e.g. tips, tolls, etc.) and may include travel time at the Provider’s standard travel rates.

(c) Additional Training. Upon Customer’s written request, Provider will provide further services to train any additional Customer personnel on the features, operation, and use of the Software, at Provider’s standard price list per diem rates in effect at the time such training is requested by Customer.

(4) Custom Development and Enhancement Requests. This Agreement does not include any programming services for new software development or software modifications. Such work, if negotiated and agreed to between Provider and Customer, shall be the subject of a separate, independent agreement for development services between the Parties (including fees, payment terms and delivery schedules). Customer acknowledges that Provider is not a contract development organization, but rather Provider is a software developer that licenses its Software within specified industries. As such, Customer further acknowledges that the Software is a major and valuable asset of Provider’s business and, as such, Provider shall have complete control of the design and development of the Software, including Updates to the Software. Therefore, Provider has the right, and sole discretion, to reject any request for enhancement or modification to the Software by Customer. Should Customer require modification of any standard forms incorporated into the Software or design of new forms, any such customization work shall be contracted for separately at Provider’s then-current rates.

(5) Hardware Purchase. If Customer so elects, Customer shall purchase Hardware at the price indicated in the Order or included in related license or subscription Fees (if indicated in the Order) or, if at a later date, at the then-current standard prices in effect at the time the Order is placed. All Hardware will be shipped F.O.B. origin. Customer shall be responsible for all Delivery Costs. Payment by Customer of Delivery Costs shall be due and payable upon its receipt of Provider’s invoice.

(6) Title to the Products

(a) General. Subject to the second paragraph of this Section (6) with respect to Third Party Software and/or Hardware purchased from Provider by Customer hereunder (collectively, the “Products”), and in the case of Third Party Software, the media on which such Products are contained and the license thereto, all risk therein shall pass to Customer upon shipment F.O.B. from the manufacturer’s facility. Provider reserves, and Customer hereby grants to Provider, a security interest in all Products sold under this Agreement to secure payment of all applicable Fees until the applicable Fees have been paid in full. A copy of this Agreement may be filed, or Provider may apply for any registration, or give any notification, in connection with the security interest, with, to or on appropriate authorities or registers in any jurisdiction at any time before or after execution by Customer including a financing statement in order to perfect and/or register Provider’s security interest in the Products. Customer agrees to execute and deliver any additional document or instrument and provide all other assistance as Provider may reasonably request from time to time to establish, perfect, register, give effect to and/or enforce Provider’s security interest in the Products applicable in Customer’s place of business. Provider shall not, unless any requirement or obligation cannot be lawfully excluded, be obliged to comply with any requirement or obligation of any law in connection with the security interest, including without limitation giving to Customer any notice of any form or making any disclosure. Customer shall maintain sufficient insurance and shall bear the responsibility of insurance for Products from the time it leaves the manufacturer’s facility until the applicable Fees have been paid in full. For greater certainty, Customer acknowledges and agrees that Provider never sells but only licenses the right to “use” its Software, Documentation, and related materials, and that no sale or other transfer of any title or ownership or any proprietary interest of any kind whatsoever in or to such Software, Documentation, or related materials is contemplated hereunder.

(b) England and Wales. Where the governing law of this Agreement is that of England and Wales, then this second paragraph of Section (6) shall apply in place of the first paragraph of Section (6). The legal and beneficial title to the Products, or in the case of Third Party Software, legal and beneficial title to the media, shall remain vested in Provider and shall not pass to Customer until the purchase price for such Products has been paid in full and received by Provider. Until payment in full has been received by Provider and title to the Products passes: Provider may require Customer to deliver up to Provider all Products in its possession and if Customer fails to do so promptly, Provider shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the Products; Provider and its agents and employees shall be entitled for such purpose at any time and without the need to give notice enter upon any property upon which the Products or any part are stored, or upon which Provider reasonably believes them to be kept; Customer shall hold the Products as bailee and store or mark the Products in a manner reasonably satisfactory to Provider indicating that title to the Products remains vested in Provider; Customer shall take all reasonable care of the Products; and Customer shall insure the Products to their full replacement value, and arrange for Provider to be noted on the policy of insurance as the loss payee. Irrespective of whether title to the Products remains vested in Provider, risk in the Products shall pass to Customer upon delivery.

(7) Ownership of Intellectual Property

(a) Ownership. Provider reserves all rights not expressly granted to Customer in this Agreement. As between Provider and Customer, Provider retains all title, ownership, and intellectual property rights in and to the Software and Documentation, and all developments by Provider in connection with this Agreement (“Provider IP”). Customer acknowledges and agrees that it is only licensing the right to use Provider’s Software and Documentation and that no sale or other transfer of any title or ownership or any proprietary interest of any kind to such Software or Documentation is contemplated hereunder, other than the sale of the limited licenses or the right to access Software as expressly granted herein.

(b) Customer Input. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in Customer Input (as defined below). If such rights cannot be assigned, Provider shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Software any Customer Input. Provider shall have no obligation to make Customer Input an Update. Customer shall have no obligation to provide Customer Input.

(c) Assignment of Rights; Cooperation. If you acquire any rights in the Provider IP or any modifications, enhancements, adaptations or translations of the Provider IP (by operation of law or otherwise), then you hereby assign all such rights to Provider (or its nominee). You must give Provider all reasonable assistance and must execute all documents necessary to assist or enable Provider to identify, perfect, preserve, register and/or record such assignment and Provider’s right, title, and interest in the Provider IP.

(8) Use of Logo for Promotional and Marketing Materials. Unless indicated otherwise in the applicable Order, Customer provides Provider with permission to use its trademark, logo and trade name (“Branding”) within Provider’s promotional and marketing materials. Provider is granted no other right to the Branding and acknowledges that it shall not gain any proprietary interest in the same. Provider is under no obligation to make use of, or to provide compensation for, the right or permission granted by Customer to the Branding. Provider shall be the exclusive owner of all right, title, and interest, including copyright in its promotional and marketing materials. The permission to use the Branding may be terminated at any time by Customer by providing thirty (30) days’ written notice to Provider. Upon such termination, Provider shall refrain from future use of the Branding; however, Provider may continue to distribute and use the promotional and marketing materials where Customer’s Branding has been previously printed prior to the notice of termination and where such placements cannot be discontinued or altered without Provider incurring a penalty.

(9) Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Users aware of this Agreement’s provisions as applicable to such User’s use of the Services and shall cause Users to comply with such provisions.

(10) Interfaces. Software interfaces to third party vendor systems may be available, as indicated in the Documentation. To the extent such third party vendor system interfaces are available, Provider shall install the Software interfaces as agreed between the Parties on the Order. Customer shall act as a liaison between Provider and any third party vendor(s) with which the Software shall interface. Customer shall have its third party vendor available at the time that Provider is scheduled to install the interface and in order to assist with installation, as required by Provider. Transactions processed by a third party vendor system may be subject to separate licensing requirements. Customer acknowledges and agrees that it has the sole obligation to obtain, or cause its third party vendor to obtain, any and all such licenses.

(11) Payment Terms

(a) Payment Terms. Customer agrees to pay to Provider all Fees as set out in an Order. For the avoidance of doubt, Provider may (unless otherwise expressly set out in any Order) vary the price list applicable to the Software from time to time in its absolute discretion. All Fees are payable in accordance with the terms set out in, and in the currency specified in, the Order. Unless otherwise indicated on the invoice or in an Order, all invoices are due upon receipt and are payable to Provider within thirty (30) days of the date set forth on each invoice issued by Provider without set-off, deduction or other withholding. Fees are exclusive of Taxes and are non-cancellable and non-refundable.

(b) Invoice Disputes. Any invoice disputes must be initiated by Customer in good faith and in writing; Customer will be entitled to notify Provider of any invoice dispute by the date that is fourteen (14) days following the date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Customer and will be due and payable in full. If Customer initiates a dispute regarding a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. Provider and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after Provider’s receipt of Customer’s notice to Provider regarding such dispute.

(c) Interest. With regard to any undisputed invoiced amount that is not paid when due, Provider reserves the right to charge, and Customer agrees to pay, a late payment fee on the unpaid balance from the due date until paid (whether before or after judgment) equal to the lesser of one and one half percent (1.5%) per month, or the maximum amount allowable by law. Customer agrees to pay to Provider all reasonable costs and expenses of collection, including reasonable attorneys’ fees and court costs, incurred by Provider to collect payments due. If it is determined that Provider properly charged any amount disputed and withheld by Customer, the late fee will be assessed and paid on the disputed, withheld amount.

(d) Suspension. Customer acknowledges that Provider reserves the right to suspend or interrupt Customer’s use of the Software, cease providing Updates and/or suspend delivery of technical support to Customer or suspend the Services, for any period during which any Fees due in accordance with the terms of this Agreement remain unpaid for fifteen (15) days after Provider provides advanced written notice (including by way of email) of such unpaid Fees to Customer, until the Customer pays to the Provider all unpaid Fees and interest. In such event, Provider shall not be precluded from exercising any additional remedies that might be available to it under the terms of this Agreement or otherwise.

(e) No Set-Off. Each Order represents a separate and independent contractual obligation. You will not withhold or set-off payments that are due and payable under any Order because of the status of another Order or this Agreement, or any other agreement with the Provider.

(12) Taxes; Customs. Customer will be responsible for paying all Taxes (other than taxes associated with Provider’s net income or Provider’s authority to do business in a particular jurisdiction), as well as for obtaining any necessary permissions related to the importation and use of the Software, Third Party Software and/or Hardware. If Provider has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Order and invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate authorized by the applicable governmental authority at least five (5) business days prior to the due date of the applicable Provider invoice. The Customer shall also pay to the Provider any additional taxes, fees, fines, penalties, interest or other amounts that may become due and payable by the Provider in the event of Customer’s non-payment or delayed payment of Taxes, whether federal, state or local, however designated. All Fees are payable in full and without reduction or withholding for Taxes. If, for whatever reason, Customer is required by law to withhold any Taxes from Fees, Customer shall gross up its payments to Provider so that Provider receives Fees in full and free of any such deductions. Customer shall, upon request of Provider, provide to Provider proof that Taxes have been paid, if such payment is not made to Provider directly. If Provider pays any costs or expenses incurred in relation to any import duties, customs, formalities, permissions or other requirements, then Customer shall promptly reimburse Provider for all such amounts in full.

(13) Confidentiality and Privacy

(a) Each Party agrees that, while this Agreement and any Order is in effect and for three (3) years thereafter: (i) all information communicated to it by the other and identified as confidential, whether before or after the Effective Date; (ii) all information identified as confidential to which it has access in connection with the subject matter hereof; (iii) all information communicated to it by the other or accessible in connection with the subject matter hereof that a reasonable person would recognize as confidential, whether marked as such or not (including the Software and Documentation); and (iv) this Agreement, will be deemed to have been received in confidence and will be used only for purposes of this Agreement (hereinafter, collectively, “Confidential Information”). Each Party agrees to use the same means as it uses to protect its own Confidential Information of similar nature, but in no event less than reasonable means, to prevent the disclosure of such Confidential Information of the other Party. No such Confidential Information will be disclosed by the receiving Party without the prior written consent of the other Party. However, each Party may disclose this Agreement and the other Party’s Confidential Information to those of the receiving Party’s and its Affiliates’ employees and representatives who have a need to have access to such Confidential Information. The receiving Party shall remain responsible for such person’ compliance with this Confidential Information obligation.

(b) The foregoing will not prevent either Party from disclosing information that belongs to such Party or any information (i) that such Party can demonstrate as being within its legitimate possession prior to the time of disclosure by or on behalf of the other Party; (ii) which was in or becomes part of the public domain through no fault of such Party; (iii) which is disclosed to such Party on a non-confidential basis by a third party who has legitimate possession thereof and the unrestricted right to make such disclosure; (iv) that is independently developed without use of or reference to the disclosing Party’s Confidential Information; or (v) that disclosed pursuant to requirements of applicable law or the order or requirement of a court, administrative agency, or other governmental body.

(c) Customer agrees that is bound by the Datamine Privacy Policy (https://www.dataminesoftware.com/privacy-policy/) (“Datamine Privacy Policy”) which is incorporated into this Agreement by reference. By using the Solutions or by submitting information to Provider in connection with your use of the Solutions or the support and Maintenance of the Software, you consent to the terms of the Datamine Privacy Policy.

(14) Warranties; Disclaimer of Warranties

(a) Warranty Obligations:

(i) Licensed Solutions Warranty. Provider warrants that the Licensed Solutions will perform without Documented Defects (“Licensed Solutions Warranty”) for a period of ninety (90) days after the Go-Live Date (“Licensed Solutions Warranty Period”) provided that the Licensed Solutions are used in an Approved Operating Environment. Customer must notify Provider in writing of any claim under the Licensed Solutions Warranty prior to the end of the Licensed Solutions Warranty Period (the “Licensed Solutions Warranty Notice”). Customer must give Provider sufficient access, including remote access, to the Licensed Solutions and Customer’s Approved Operating Environment, and sufficient information and time, to allow Provider to replicate the Documented Defect. Customer’s exclusive remedy and Provider’s sole liability for breach of this warranty shall be for Provider to use commercially reasonable efforts to correct such Document Defect(s) set out in the Licensed Solutions Warranty Notice. Without limitation, Provider shall have no liability to Customer or any third party arising out of Customer’s failure to back-up the Licensed Solutions and the related data.

(ii) Third Party Software/Hardware Warranty. Warranties related to any Third-Party Software or Hardware, if any, shall be specified in the applicable Order. Customer acknowledges that Provider is not the manufacturer or producer and therefore makes no warranties, conditions, representations or guarantees, express or implied, concerning Hardware or Third Party Software, as applicable. So far as possible, Provider hereby assigns to Customer the manufacturer’s and producer’s warranties, if any, applicable to the Hardware and Third Party Software, and Customer hereby accepts such assignment and agrees that its sole remedies are included thereunder. Provider makes no representations regarding the validity or enforceability of any such manufacturer’s or producer’s warranty.

(iii) Maintenance Warranty. Provider warrants that the Maintenance will be performed in a professional manner consistent with generally accepted industry practise (the “Maintenance Warranty”). Written notice of any claim under the Maintenance Warranty must be made within thirty (30) calendar days of completion of the Maintenance which you allege was not performed consistently with the Maintenance Warranty. Provider’s sole obligation under the Maintenance Warranty shall be to re-perform the Maintenance which was not as warranted.

(b) Warranty Disclaimer:

EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION (14) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, THIRD PARTY SOFTWARE AND HARDWARE, AS APPLICABLE, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”, AND PROVIDER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THE USE OF REASONABLE SKILL AND CARE, NON-INFRINGEMENT, SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROR OR THAT THE SOFTWARE, THIRD PARTY SOFTWARE, SUPPORT, MAINTENANCE OR HARDWARE WILL MEET ALL OF CUSTOMER’S REQUIREMENTS. PROVIDER MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR THIRD PARTY SERVICES PROVIDED WITH OR AS PART OF THE SOFTWARE, HARDWARE OR RELATED SERVICES. PROVIDER’S LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN PROVIDER OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, SUCH WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE.

DATA SERVICES DISCLAIMER. YOU ACKNOWLEDGE AND AGREE THAT, WHERE ANY ORDER INCLUDES THE PROVISION OF DATA, INFORMATION, ANALYSES, OR MODELS, PROVIDER OBTAINS ITS DATA FROM THIRD-PARTY SOURCES, THE DATA MAY NOT BE COMPLETELY THOROUGH AND ACCURATE AND YOU SHALL NOT RELY ON PROVIDER FOR THE ACCURACY OR COMPLETENESS OF THE DATA AND/OR INFORMATION SUPPLIED. YOU ACCEPT ALL SUCH DATA AND/OR INFORMATION ON AN “AS IS” AND “AS AVAILABLE” BASIS.

Nothing in this Agreement excludes, restricts, or modifies any right or remedy, or any guarantee, representation, warranty, condition or other term, implied or imposed by any applicable law which cannot lawfully be excluded or limited. This may include any consumer law which contains guarantees that protect the purchasers of goods and services in certain circumstances. If any guarantee, representation, warranty, condition or other term is implied or imposed concerning this Agreement under any consumer law or any other applicable law and cannot be excluded (a “Non-Excludable Provision”), and Provider is able to limit Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of Provider for breach of the Non-Excludable Provision is limited to one or more of the following, at Provider’s option: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; or (b) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.

(c) The Parties agree that it is Customer’s responsibility to determine whether the Software is suitable for Customer’s requirements. No other terms, conditions, representations, warranties or guarantees, whether written or oral, express or implied, will form a part of this Agreement or have any legal effect whatsoever. The Customer represents and warrants to Provider that the Documentation and information provided by or on behalf of the Customer to Provider is true, complete, and accurate in all respects and is not misleading or deceptive or likely to mislead or deceive.

(15) Indemnification

(a) Provider Indemnity. Provider will indemnify, defend and hold harmless Customer and its Affiliates and any of their respective officers, directors, employees, agents, successors and permitted assigns (“Customer Indemnified Parties”) from, at its expense, any action brought against Customer Indemnified Parties by a third party based upon a claim that Customer’s use of the Software within the scope of, and under restrictions laid out in, this Agreement and the Order(s) infringes a patent or copyright issued to or held by a third party, or misappropriates a trade secret of such third party; provided that Customer (i) notifies Provider promptly in writing of such claim, (ii) provides Provider with the sole control and authority to defend or settle such action or claim, and (iii) gives Provider the authority, information and assistance necessary to settle or defend such claim.

(b) Effect of Infringement Claim. In the event a claim of infringement is made, or Provider believes that such a claim is likely to be made, then Provider shall at its expense: (a) procure the right for Customer to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing, without materially decreasing the functionality of the Software; or (c) if neither (a) or (b) above is commercially practical, then at Provider’s sole option, terminate this Agreement upon three (3) months written notice, and either issue to Customer a credit equal to, or promptly refund to Customer, any pre-paid Fees, less an appropriately prorated amount for use, reflecting the number of months during which Customer enjoyed uninterrupted use of the Software during that annual period.

(c) Provider Indemnity Limitations. Notwithstanding the foregoing, Provider shall have no obligation to indemnify, defend Customer, or to pay any costs or legal fees for any action, claim or settlement, based upon: (a) use of a version of the Software that was not, at the time that the claim arose, the current unaltered version of the Software provided by Provider hereunder, including, without limitation, failure of Customer to install Updates containing modifications to make the Software non-infringing; (b) combination, operation, integration or interfacing of the Software with Third Party Materials, other than Third Party Materials or Third Party Software with which the Software was intended to operate as specified in the Documentation associated with the Software if such claim would not have arisen but for such combination, operation, integration or interfacing (regardless of whether or not Provider has advised Customer that such use would likely result in a claim of infringement by a third party); (c) use of the Software in a manner other than as authorized by the Documentation, the Order(s) or this Agreement; (d) Provider’s compliance with the designs, plans, or specifications furnished by or on behalf of Customer; (e) modifications to the Software by any person other than Provider or its authorized agents or subcontractors; or (f) Customer’s failure to accept any procured right to continue using the Software.

THE FOREGOING STATES PROVIDER’S SOLE AND EXCLUSIVE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER INDEMNIFIED PARTIES WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.

(d) Customer Indemnity. Customer shall defend, indemnify and hold harmless Provider and its Affiliates and any of their respective officers, directors, employees, agents, successors and permitted assigns from and against any and all third party claims, actions, causes of action, liabilities, damages, costs and expenses, including reasonable legal fees, arising from or related to the exclusions (a) through (f) set out in the third paragraph of this Section (15)(c).

(16) Limitation of Liability

EXCEPT FOR LIABILITY ARISING (i) FROM CUSTOMER’S BREACH OF SECTION (1)(c) (LICENSE RESTRICTIONS) AND ANY DISCLOSURE BY CUSTOMER OF SOFTWARE OR DOCUMENTATION IN BREACH OF SECTION (13) (CONFIDENTIALITY), (ii) UNDER SECTION (15) (INDEMNIFICATION), OR (iii) FOR PERSONAL INJURY, DEATH, FRAUD OR FRAUDULENT MISREPRESENTATION:

(a) PROVIDER’S ENTIRE LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE SOFTWARE, THE THIRD PARTY SOFTWARE, THE HARDWARE OR ANY RELATED SERVICES WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO PROVIDER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM; AND

(b) NEITHER PARTY WILL BE LIABLE FOR:

(i) ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT OR IN ANY WAY RELATED TO THE SOFTWARE, THE THIRD PARTY SOFTWARE, THE HARDWARE OR ANY RELATED SERVICES; OR

(ii) ANY LOSS OF REVENUE, PROFITS, GOODWILL OR DATA, OR DATA USE (INCLUDING AS A RESULT OF A VIRUS), BUSINESS INTERRUPTION, FAILURE TO REALIZE AN EXPECTED SAVING, CORRUPTION OF DATA, OR CLAIMS AGAINST THEM BY ANY THIRD PARTY,

EVEN IF THE PARTIES ARE ADVISED, OR MAY REASONABLY SUPPOSED TO HAVE BEEN AWARE, OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

SUCH LIMITATIONS WILL APPLY REGARDLESS OF HOW THE CLAIM ARISES, WHETHER ARISING BASED ON CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE AND WILL APPLY TO ALL ORDERS, SCHEDULES, ADDENDA, AGREEMENTS AND ATTACHMENTS RELATED TO THIS AGREEMENT.

THE FOREGOING LIMITATIONS OF LIABILITY ALLOCATE THE RISKS BETWEEN PROVIDER AND CUSTOMER AND FORM A MATERIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. PROVIDER’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

(17) Term and Termination

(a) Term. The term of this Agreement will commence on the Effective Date and will continue thereafter for the period as set out in the Order(s) (“Term”) unless terminated earlier by Provider or Customer in accordance with the terms of this Agreement.

(b) Termination. This Agreement or an Order may be terminated as follows:

(i) by either Party thirty (30) calendar days after providing the other Party with written notice of the other Party’s material breach of this Agreement (or any Order), unless during such thirty (30) day period the breaching Party has (i) cured such breach; or (ii) if cure within thirty (30) days is infeasible, provided the non-breaching Party with a written plan reasonably acceptable to the non-breaching Party to cure such breach and made substantial progress to cure within the thirty (30) day period;

(ii) by Provider ten (10) calendar days after Provider provides Customer with notice of failure to remit timely payment to Provider;

(iii) by Provider, immediately, if Customer breaches Section (1)(c) (Use Restrictions); or

(iv) immediately by either Party if the other Party becomes insolvent, makes an assignment for the benefit of creditors, appoints (or has appointed on its behalf) a trustee, receiver or similar officer, or commences a proceeding seeking reorganisation, liquidation or similar relief under any bankruptcy, insolvency or similar debtor-relief statute.

(c) Effect of Termination. Upon termination of this Agreement for any reason, any and all amounts owed to Provider pursuant to this Agreement will be immediately due and payable, Provider shall be entitled to retain any and all fees paid by Customer and (a) all license rights granted to Customer hereunder will be immediately revoked and terminated (except for Perpetual Licenses); and (b) all of Provider’s Maintenance obligations will cease. Except for Perpetual Licenses, within ten (10) days following termination, Customer will cease using and will securely return to Provider all originals of the Software, Documentation and return or destroy any applicable copies thereof and confirm the same to Customer in writing by a duly authorized officer.

(d) Survival. Following the termination of this Agreement, the Sections titled “Ownership of Intellectual Property”, “Payment Terms”, “Taxes; Customs”, “Confidentiality and Privacy”, “Warranties; Disclaimer of Warranties”, “Indemnification,” “Limitation of Liability”, “Audit”, and “General” will continue in full force and effect in accordance with their terms.

(18) Audit. Customer shall maintain complete and accurate books, records, policies, and procedures (collectively “Books and Records”) sufficient to confirm Customer’s compliance with this Agreement and any Order, including without limitation compliance with Permitted Use, and payment of Fees to Provider. During the Term and for a period of one (1) year thereafter, Customer shall permit Provider (or an independent representative engaged by Provider), upon thirty (30) days prior written notice, to audit (each an “Audit”) Customer’s Books and Records and deployment of the Software to the extent reasonably necessary to verify Customer’s compliance with the terms, conditions, and restrictions of this Agreement, at such times during Customer’s regular business hours as Provider may reasonably request. Provider may exercise its right to Audit no more frequently than one (1) time each calendar year. If any Audit should disclose any underpayment of Fees, Customer shall promptly pay Provider such underpaid amount (whether before or after judgment), together with interest thereon at a rate of one and one-half percent (1.5%) per month during which each such amount was owed and unpaid, or the highest interest rate allowed by law, whichever is lower. If the amount of such underpayment exceeds five percent (5%) of amounts otherwise payable, then Customer shall reimburse Provider for Provider’s reasonable and customary Audit expenses.

(19) General

(a) 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 Provider may assign this Agreement in its entirety (including all schedules and Orders), without the Customer’s consent if to an Affiliate of Provider. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement with immediate effect upon written notice. Any purported assignment in violation of this section shall be void and of no effect. Any permitted assignee shall assume all assigned obligations of its assignor under the Agreement.

(b) Governing Law. The law that will apply to any question of interpretation regarding this Agreement, any question of the existence of this Agreement, or a lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, depend on the country of incorporation or organization, as applicable, of Customer, and will be determined as follows:

Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and, subject to the availability of injunctive relief pursuant to Section (13) (Confidentiality and Privacy) and to Section (19)(c) (Dispute Resolution), to the jurisdiction of the applicable courts above. The Parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.

(c) Dispute Resolution. Upon any dispute, controversy or claim between the Parties, each of the Parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this thirty (30) day period, a Party may submit the dispute to binding arbitration. Customer shall select an arbitrator from a list of three (3) arbitrators to be provided by Provider to Customer, each of which shall be skilled in the legal and business aspects of the software industry. The Parties agree that the arbitrator’s fee shall be shared equally between the Parties and that each Party shall be responsible for its costs, legal and otherwise, in relation to the arbitration, unless the arbitrator decides that the circumstances justify an award of costs. Unless otherwise agreed in writing between the Parties, the arbitration shall be conducted in the English language and shall take place in accordance with arbitration rules and in the location set forth in the below chart, depending on the country of incorporation or organization, as applicable, of Customer:

The foregoing provision shall not limit the ability of a Party to seek injunctive relief.

The Parties undertake to negotiate in good faith and agree on actions aimed to minimize the damage to the Parties related to the impossibility of performing obligations under the Agreement and the termination of the Agreement.

(d) Trade Compliance. Customer shall comply with all applicable laws, ordinances, orders and regulations relating to the import, export, re-export, transfer (in-country), resale, and any other dealings in prescribed or controlled commodities, software, information and technology or to dealings with restricted, prohibited or denied entities, individuals, governments, end users, end uses, countries or regions (“Trade Control Laws”), including but not limited to (a) economic sanctions, trade embargoes and anti-terrorism measures restricting the countries, regions, governments and parties with whom Customer or Provider may have dealings and the nature of those dealings, (b) controls under dual-use and other export controls and defense trade controls, and (c) import/export/customs authorizations and formalities. Customer represents and warrants that Software will not be used for any purpose or in any activity associated with chemical, biological or nuclear weapons, unsafeguarded nuclear activities, nuclear fuel cycle activities or missiles, rocket systems or unmanned vehicles, or any other restricted end use, or in any facility used for such purposes or in such activities, nor will they be transferred and/or resold to be used in any such facility or for such purposes or in such activities. Customer represents and warrants that it will not directly or indirectly export, re-export, or transfer (in-country) Software to/within any countries or regions who are currently or in the future become subject to economic sanctions or trade embargoes applicable to Customer or Provider. Customer represents and warrants that neither it, nor any individual or entity directly or indirectly owning or controlling it, is (i) listed or designated under, or otherwise the subject or target of, the economic sanctions, export controls or anti-terrorism laws of the United States, Canada, the United Kingdom, or the European Union or other government having jurisdiction over Customer, or (ii) an entity directly or indirectly owned or controlled 50% or more, or deemed or considered under such measures to be owned or controlled, by one or more individuals or entities described in clause (i) (collectively, clauses (i) and (ii) “Sanctioned Persons”). Further, in connection with the Software, the Customer shall not engage in, or facilitate directly or indirectly any transactions related to, any dealings (included but not limited to resale, re-export or in-country transfer of Software) involving Sanctioned Persons or entities owned 50% or more, or controlled, by Sanctioned Persons or the property of such Persons/entities, and shall not otherwise engage in any activities that would cause either Customer or Provider to be in violation of Trade Control Laws applicable to either Party. The Customer also represents and warrants that neither it, nor any individual or entity directly or indirectly owning or controlling it, has been or is subject to any investigations, charges, convictions or penalties under any Trade Control Laws. The representations and warranties in this section shall be deemed to be continuing in effect throughout the Term of the Agreement. Customer shall promptly advise Provider of any change in circumstances which may affect the continuing validity of the representations and warranties. In case such circumstances arise that will lead to the guarantees specified in Section this (19)(d) to become invalid, notwithstanding other provisions of the Contract, the Provider has the right to:

(i) If the imposition of Trade Control Laws hinders the performance of obligations under the Agreement, unilaterally terminate the execution of such obligations, notifying the Customer in writing; or
(ii) Unilaterally refuse to execute the Agreement (in whole or in part), notifying the Customer in writing.

(e) Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Provider’s 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 Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Provider.

(f) Modifications. This Agreement may not be modified except in writing signed by both Parties.

(g) Subcontractors. Provider reserves the right to make use of subcontractors to provide Services and to use such means as Provider, in its sole discretion, considers appropriate. Provider’s use of subcontractors shall not relieve it of its obligations under this Agreement.

(h) Independent Contractor. The relationship of the Parties established by this Agreement is that of independent contractors. This Agreement does not establish an agency, joint venture or partnership relationship between Provider and Customer. Provider and its personnel, agents, and authorized representatives are acting as independent contractors and not as employees or agents of Customer. Nothing in this Agreement will be construed to permit either Party to bind the other or to enter into obligations on behalf of the other Party.

(i) Severability. If any provision contained herein or part thereof is determined to be void or unenforceable in whole or in part by a court of competent jurisdiction, such invalid provision or part thereof shall be deemed not to affect or impair the validity or enforceability of any other provision or part thereof contained herein, all of which remaining provisions or parts thereof shall be and remain in full force and effect.

(j) Headings. The headings and subheadings contained herein are inserted for convenience of reference only and shall in no way be construed to be interpretations of terms.

(k) Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after being sent by pre-paid recorded post; (iii) the second business day after sending by facsimile with telephonic confirmation of receipt, or (iv) if sent by email, the sender’s receipt of an acknowledgment from the intended recipient (such as by the “read receipt” function, as available, return email or other form of written acknowledgment). Notices to Provider shall be sent to the address and addressee shown in the Order. Notices to Customer shall be sent to the address and addressee shown in the Order. Each Party may modify its recipient of notices by providing notice pursuant to this Agreement.

(l) Waiver. No delay by either Party in enforcing any of the terms or conditions of this Agreement will affect or restrict such Party’s rights and powers arising under this Agreement. No waiver of any term or condition of this Agreement will be effective unless made in writing. The waiver by any Party of a breach of this Agreement does not constitute a waiver of a repeat of the same breach or of other breach of rights or obligations under this Agreement.

(m) Entire Agreement. This Agreement, together with the Datamine Privacy Policy and any applicable Order, constitutes the entire Agreement between the Parties with respect to the subject matter of this Agreement and supersedes all proposals, oral and written, and all previous negotiations and communications between the Parties and their representatives with respect to the subject matter of this Agreement. Each Party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.

(n) Third party rights. A person who is not a party to this Agreement shall not have any rights to enforce any term of this Agreement.

(o) Force Majeure. Except for the Customer’s obligation to make payments in accordance with the Agreement, the Parties shall not be liable for any partial or full non-compliance with their obligations hereunder provided that such non¬compliance was directly caused by events of force majeure that occurred after the execution of this Agreement, such as flood, fire, earthquake and other accidents, war and regional conflicts, and any new laws and regulations or other acts of governmental authorities, provided that such events of force majeure arose after the execution hereof and in the reasonable opinion of the applicable Party, preclude or prohibit the performance of this Agreement (“Force Majeure”). In the event that Force Majeure lasts for more than (90) ninety days, either Party shall have the right to withdraw from this Agreement and shall not be liable in connection with such termination hereof. At the same time, if the Agreement is terminated, Provider shall return to Customer all fees paid by Customer for any non-provided services, subject to applicable law. Customer shall pay for all actually provided Services.

(p) Choice of Language. The original of this Agreement is in English. If this Agreement is translated into any other language the English version shall control.

(q) Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a Portable Document Format (PDF), or by using a web-based e-signature platform such as Docusign or Echosign, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page or e-signature was an original thereof.

(20) Definitions and Interpretation. The definitions and rules of interpretation in this Section shall apply to this Agreement.

(a) The following capitalized terms shall have the meanings ascribed to them in this section:

(b) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
(c) Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
(d) A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
(e) Any words following the terms including, include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.