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SOFTWARE END USER LICENSE AGREEMENT (EULA)

Last updated November 8, 2018

THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA” or “AGREEMENT”) is by and between you and Visallo, LLC, a Delaware limited liability company (“Visallo”). If you are agreeing to this Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Agreement. Customer and Visallo are each a “Party” and collectively the “Parties”.

By signing an associated Order or clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, and in consideration of the mutual promises of the parties hereto, each to the others, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1. DEFINITIONS

Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Exhibit A.

2. LICENSE GRANTS

2.1 Visallo Software. Subject to Customer’s compliance with this Agreement, including Customer’s timely payment of all License Fees, Visallo grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable license, for the term listed on the Order (“Term”), to install and use the Software within the Scope of Use identified on the Order, solely for Customer’s Internal Business Purposes. The Term shall automatically renew for an additional one (1) Term with the same duration as the previous Term, unless written notice is given by either Party to the other Party as to its intention not to renew the Term at least sixty (60) days before the end of the Term or any renewal thereof, as the case may be.

2.2 Evaluation Software. If the applicable Order specifies that any Software is provided under an evaluation license or a free trial license, then subject to Customer’s compliance with this Agreement, Visallo grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable license during the applicable Term for evaluation purposes only, to install and use the Evaluation Software within the parameters determined by Visallo at its sole discretion, solely for evaluating whether Customer wishes to purchase a commercial license for such Software. Notwithstanding anything to the contrary in this Agreement, Visallo does not provide Support Services (Section 6), warranty (Section 8), or indemnification (Section 12) with respect to Evaluation Software.

3. LICENSE RESTRICTIONS

Unless otherwise expressly permitted by Visallo, Customer will not and Customer has no right to: (a) copy any Visallo Materials (except as required to run the Software); (b) modify, adapt, or create derivative works of any Visallo Materials; (c) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any Visallo Materials to any third party; (d) decompile, disassemble or reverse-engineer any Visallo Materials, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any Visallo Materials, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (e) provide to any third party the results of any benchmark tests or other evaluation of any Visallo Materials without Visallo’s prior written consent; (f) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any Visallo Materials; (g) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends or symbols from any Visallo Materials (except as permitted by the authorized use of the Software pursuant to the user documentation); (h) exceed the Scope of Use limits; or (j) otherwise access or use any Visallo Materials except as expressly authorized in this Agreement.

4. OWNERSHIP

It is acknowledged by the Customer that Visallo, its suppliers and/or licensors own all worldwide right, title and interest in and to the Visallo Materials, including all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 2, Customer will not acquire or claim any right, title or interest in or to any Visallo Materials or related Intellectual Property Rights, whether by implication, operation of law or otherwise.

5. LICENSE FEES

Customer will pay all license fees as set forth on the Order (the “License Fees”) no later than thirty (30) days after the date of Visallo’s applicable invoice as listed on the Order. Without limitation of Visallo’s other termination rights, if Customer fails to pay the License Fees when due, then Visallo may terminate this Agreement and all licenses granted hereunder by notice to Customer. All License Fees are non-refundable once paid.

6. MAINTENANCE AND SUPPORT

Visallo will provide the support and maintenance services described in the Visallo Support Policy (“Maintenance and Support”) during the Term for which you have paid the applicable fee. Maintenance and Support is subject to the terms of the Visallo Support Policy and will be provided at the support level and during the Term specified in your Order. The Visallo Support Policy may be modified by Visallo from time to time to reflect process improvements or changing practices. Additionally, Visallo shall provide, as such becomes commercially available to Visallo end users as part of Maintenance and Support, upgrades, bug fixes and other updates to the Software which you may use during your Term.

7. PROFESSIONAL SERVICES

Subject to Customer’s payment of applicable fees, Visallo will provide the services identified in the Statement of Work (SOW), if any, set forth in the Order (the “Professional Services”) in accordance with Visallo’s Professional Services Agreement.

8. WARRANTY DISCLAIMER

ALTHOUGH VISALLO OBTAINS INFORMATION FOR INCLUSION IN THE SOFTWARE THAT IT CONSIDERS RELIABLE, THE SOFTWARE AND ALL VISALLO MATERIALS ARE PROVIDED “AS IS” AND NEITHER VISALLO NOR ANY OF ITS AFFILIATES, NOR ANY OF THEIR INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED IN PROVIDEING INFORMATION DELIVERED BY THE SOFTWARE AND VISALLO MATERIALS MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE TIMELINESS THEREOF, THE RESULTS TO BE OBTAINED BY THE USE THEREOF, OR ANY OTHER MATTER RELATED THERETO. VISALLO EXPRESSLY DISCLAIMS, AND CUSTOMER WAIVES, ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, TIMELINESS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE ALLOWS USERS TO CONDUCT ANALYSIS AND RESEARCH.

9. CONFIDENTIAL INFORMATION

9.1 Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one Party to the other Party that under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary including without limitation source code, object code, interfaces, APIs, dashboards, and all components of the Software. Customer agrees that it will not use the Software and any Confidential Information provided therein except as specifically permitted under Section 2 of this Agreement. Confidential Information of Visallo will include the Visallo Materials (including without limitation any license keys).

9.2 Use and Disclosure Restrictions. The Party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the Party disclosing such information (the “Discloser”) using the same degree of care in safeguarding the Discloser’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection; (b) not to disclose such Confidential Information to any third parties; (c) to restrict disclosure of the Confidential Information solely to those of its Representatives with a “need to know” (“Permitted Representatives”), where a “need to know” means that the Representative requires the Confidential Information in order to facilitate compliance with the terms of this Agreement (c) advise Permitted Representatives who gain access to the Confidential Information of their obligations with respect to the Confidential Information; (d) make only the number of copies of the Confidential Information necessary to disseminate the Confidential Information to Permitted Representatives or use the Software according to permitted uses. Recipient’s obligations under this Section 9 will continue in effect for so long as Recipient retains any Confidential Information.

9.3 Exclusions. The obligations of Recipient under Section 9.2 will not apply to any Confidential Information that: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.

9.4 Required Disclosures. The provisions of Section 9 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law or regulation or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient will notify the Discloser in writing of such requirement so that the Discloser may seek a protective order or injunctive relief at its own cost and expense. In such disclosures, the Recipient will only disclose that portion of the Confidential Information that is legally required to be disclosed (as reasonably determined by the Recipient’s legal counsel).

9.5 Return or Destruction of Confidential Information. Upon termination of the Agreement, Recipient will promptly return to Discloser or, at Discloser’s option, unless prohibited by law, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person; provided however, that the Recipient shall have the right to retain a copy of the Confidential Information for audit or regulatory compliance purposes.

9.6 Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 9, without the necessity of posting any bond or other security or proving actual damages. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.

10. LIMITATION OF LIABILITY

TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW: (A) VISALLO WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS (WHETHER DIRECT, INDIRECT, OR CONSEQUENTIAL), BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) VISALLO’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO VISALLO FOR THE SOFTWARE IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER VISALLO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT VISALLO, IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS AFFILIATES’ AND SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE).

11. INDEMNITY

(a) Visallo will defend Customer against any claim, demand, suit or proceeding (“Claim”) brought against Customer by a third party alleging that Software infringes or misappropriates such third party’s Intellectual Property Rights, and Visallo will pay all damages finally awarded against Customer in a non-appealable judgement rendered by a court of competent jurisdiction as a result of such Claim. Notwithstanding the foregoing, Visallo has no obligation to defend, pay damages or indemnify Customer with respect to: (a) use of the Software in a manner that is not permitted under the Agreement or that is inconsistent with Visallo’s applicable user documentation; (b) modifications to the Visallo Materials made by anyone other than Visallo; (c) the combination of Software with hardware or software not made by Visallo, or with third-party services, processes or materials where the infringement or misappropriation would not occur but for such combination; (d) Customer’s continued use of the Software or other allegedly infringing activity after receiving notice of the alleged infringement; or (e) any version of the Software that is no longer supported by Visallo ((a) through (e), collectively, “Excluded Matters”).

If an applicable Claim is made or appears likely to be made, Visallo may, at its option and expense, modify the affected Software so that it is non-infringing, or replace it with substantially functionally equivalent software. If Visallo determines that neither is reasonably feasible, Visallo may terminate Customer’s applicable license and refund Customer a pro rata refund of the License Fees previously paid by Customer, which will be calculated using the remainder of the Term (beginning with the date of Visallo’s receipt of notice of the applicable Claim), or if the Software is licensed under a perpetual license, a refund of License Fees previously paid by Customer, less straight-line depreciation on a three-year basis from the Delivery of the applicable Software. The obligations set forth in this Section constitute Customer’s sole and exclusive remedy, and Visallo’s entire liability, with respect to any Claims that the Software infringes any third party’s Intellectual Property Rights.

(b) Customer will defend and hold harmless Visallo, its Affiliates and respective directors, officers, employees and agents against any Claim, including attorneys’ fees, brought by a third party arising out of or relating to (i) Customer’s use of the Software in breach of this Agreement, (ii) Customer’s negligence, or (iii) any willful acts by Customer inconsistent with this Agreement. Further Customer agrees to assume all liability for any authorized user of the Software to whom Customer provisions services that are not employees of Customer and will hold harmless and indemnify Visallo for such authorized users acts or omissions, including negligence.

(c) Each Party’s indemnity obligations set forth in Section 11 are conditioned upon the Party seeking indemnification (x) providing prompt written notice to the other Party of the applicable Claim; (y) giving the indemnifying Party sole control of the defense and/or settlement of the Claim, except that: (i) the indemnified Party may participate in the defense with counsel of its choice at its own expense, and (ii) the indemnifying Party will not agree to any settlement that imposes a material obligation on the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld or delayed), and (z) providing reasonable cooperation and assistance in the defense and negotiations.

12. TERMINATION

Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement and does not cure the breach within thirty (30) days of receiving notice of the breach. In addition, Visallo may immediately terminate this Agreement (in whole or in part, including with respect to any Term) by written notice to Customer (a) if Customer materially breaches Section 3, and (b) as set forth in Section 5. Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will automatically terminate, and Customer agrees to cease immediately using the Visallo Materials and to return or destroy all copies of the Visallo Materials and other Visallo Confidential Information in Customer’s possession or control, and certify in writing the completion of such return or destruction in accordance with Section 9.5. Upon termination of this Agreement, Visallo will have no obligation to refund any License Fees or other amounts received from Customer hereunder, and notwithstanding any early termination above, Customer shall still be required to pay all License Fees payable under an Order (i.e., no such early termination shall relieve Customer of its obligations to pay all License Fees payable under an Order) unless otherwise provided in this Agreement or as a result of termination by the Customer of this Agreement as a result of the breach by Visallo. Section 1 (Definitions), Section 4 (Ownership), Section 9 (Warranty Disclaimer), Section 9 (Confidentiality), Section 10 (Limitation of Liability), Section 11 (Indemnity), Section 12 (Termination) and Sections 13 (Export) through 16 (General) will survive any expiration or termination of this Agreement.

13. EXPORT

Customer will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Visallo Materials. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List.

14. PUBLICITY

Customer agrees that Visallo may publish a brief description describing Customer’s deployment of the Software and identify Customer as a Visallo customer on any of Visallo’s websites, Customer lists, press releases, and/or other marketing materials. Customer may request that we stop doing so by sending an email to sales@visallo.com at any time. Please note that it may take us up to 30 days to process your request.

15. CHOICE OF LAW AND DISPUTES

Unless Customer is the Government, this Agreement will be governed by and construed in accordance with the laws of the State of New York, and the parties hereby waive any principle of conflict or choice of laws that would cause the applications of the laws of any other jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York, and the parties hereby consent to personal jurisdiction and venue therein for any matters arising out of this agreement (except that Visallo may seek injunctive relief to prevent improper or unauthorized use or disclosure of any Visallo Materials in any court of competent jurisdiction).

16. GENERAL

16.1 Purchase Order. Customer’s issuance of a purchase order constitutes acceptance of this Agreement notwithstanding anything to the contrary in such purchase order. If any purchase order contains any pre-printed or template terms or conditions or terms that are in conflict with or that are different from or additional to the terms and conditions set forth in this Agreement, then the parties expressly rejects such terms and conditions, and such terms and conditions will not become a part of the agreement between the parties, notwithstanding any subsequent acknowledgement, invoice or license key that Visallo may issue.

16.2 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance, will be deemed given upon receipt. All communications will be sent to the addresses set forth in the applicable Order or to such other address as may be specified by either Party to the other Party in accordance with this Section. Additionally, an electronic copy of any such notices will be sent to legal@kensho.com.

16.3 Assignment. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Visallo may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of Visallo’s assets to which this Agreement relates. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties permitted successors and assigns.

16.4 Rights and Remedies. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either Party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.

16.5 Waiver; Severability. The waiver by either Party of a breach of or a default under this Agreement will not be effective unless in writing, the failure by either Party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

16.6 Data Collection; Privacy. From time to time, Visallo may collect and process technical and related information about Customer’s use of the Software which may include Internet protocol addresses, hardware identification, operating system, application software and other non-personally identifiable usage information to facilitate the provision of updates, support, invoicing or to improve Visallo’s products or services. Such information will be subject to the Visallo Privacy Policy, which policy is hereby incorporated by reference and made a part of this Agreement.

16.7 Commercial Items. The Products are “Commercial Items(s)” as defined in 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software documentation”, as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227-7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

16.8 Integration. This Agreement along with any additional terms incorporated herein by reference, including the Order and the Exhibits hereto, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained or referenced by either Party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement will be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence.

EXHIBIT A - DEFINITIONS

  1. “Affiliate,” with respect to a Party, means a corporation, partnership or other entity controlling, controlled by or under common control with such Party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
  2. “Delivery” means the date of Visallo’s initial delivery of the license key for the applicable Software or otherwise making the applicable Software available for download by Customer.
  3. “Enhancements” means any updates, upgrades, releases, fixes, enhancements or modifications to the Software made generally commercially available by Visallo to its support customers.
  4. “Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
  5. “Evaluation Software” means Software that is specified in an Order as provided under an evaluation license or a free trial license.
  6. “Internal Business Purpose” means Customer’s use for its own internal business operations on Customer’s systems, networks and devices with Customer’s data. Such use does not include use by Customer on a service bureau basis or otherwise to provide services to, or process data for, any third party.
  7. “Order” means Visallo’s quote or ordering document accepted by Customer or Customer’s purchase order or other ordering document submitted to Visallo (directly or indirectly through an Authorized Partner) to order Visallo Materials or services, which references the pricing, Term of license, Scope of Use, Professional Services and other relevant commercial terms set forth in an applicable Visallo quote or ordering document.
  8. “Representative” means the directors, officers, employees, agents, partners, attorneys, accountants, advisors of a Party or such Party’s Affiliates.
  9. “Scope of Use” means the authorized scope of use for the Software as identified on the Order, which may include limits to: (a) number and type of user accounts, (b) storage capacity, or (c) numbers of licenses, copies or instances (for Software).
  10. “Software” means the Visallo software for which Customer has paid a License Fee to Visallo as well as all upgrades, bug fixes and updates provided to Customer hereunder.
  11. “Sensitive Information” means sensitive technical or personally-identifiable Confidential Information of a Party that is disclosed to the other Party, where examples of Sensitive Information for Visallo include details about product architecture, source code, product schematics and workflows, etc., and where examples of Sensitive Information for Customer include any personally-identifiable information related to Customer’s employees and customers and technical details regarding Customer’s proprietary systems.
  12. “Visallo Materials” mean the Software, Software license keys where applicable, Visallo Components and end user documentation relating to the foregoing, excluding any stand-alone open source materials.