End User License Agreement

PRECOG DATA INC.
LICENSE AGREEMENT

This LICENSE AGREEMENT (this “Agreement”) is entered into between Precog Data Inc., a Delaware corporation (“Precog” “we” or “us”), and you, or if you are entering this Agreement on behalf of an entity or other organization, that entity or organization (in either case) (“Licensee”).

Precog has developed and offers data preparation and transformation software known as Precog. Licensee wishes to obtain a license to access and use the Precog software as specifically described in one or more Orders (as defined below) executed by Precog and Licensee from time to time (the “Precog Software”). This Agreement sets forth the terms and conditions under which Precog is willing to provide Licensee with a limited license to use the Precog Software.

PLEASE CAREFULLY READ THIS AGREEMENT. BY CLICKING ON THE “I AGREE” BUTTON OR BY ACCESSING OR USING THE PRECOG SOFTWARE, LICENSEE AGREES THAT IT HAS READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH LICENSEE CLICKS THE “I AGREE” BUTTON.

IF LICENSEE DOES NOT AGREE TO THIS AGREEMENT OR DOES NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, PRECOG IS NOT WILLING TO PROVIDE LICENSEE WITH ACCESS TO OR USE OF THE PRECOG SOFTWARE AND LICENSEE MUST NOT INSTALL, ACCESS, OR USE THE PRECOG SOFTWARE. IF LICENSEE AGREES TO THIS AGREEMENT OR INSTALLS, ACCESSES, OR USES THE PRECOG SOFTWARE, LICENSEE ACKNOWLEDGES THAT IT MEETS THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREES TO BE BOUND BY THIS AGREEMENT.

This Agreement supersedes all oral or written agreements or understandings between the parties, as to the subject matter of the Agreement. This Agreement is in the English language only, which language will be controlling in all respects.

  1. DEFINITIONS. All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.
  2. ORDERS. In connection with this Agreement, Licensee has submitted one or more orders (in either electronic or other form) to Precog requesting access to the Precog Software (each, an “Order”). Once an Order is accepted by Precog, all Precog Software requested in any Order will be subject to the terms of this Agreement. The provisions of this Agreement will control in the event of a conflict between any Order and this Agreement.
  3. LICENSE GRANT.
    1. License Grant. The Precog Software is offered in the following license types, which may be combined, pursuant to the specific grant and restrictions set forth below and noted in an applicable Order. The following license types may also be available as site, team or enterprise licenses if noted on the Order. The license covers any updates, upgrades, or new releases, if any are provided to Licensee by Precog and any copies Licensor is permitted to make hereunder and any available documentation. Any references to a “sale” or a “purchase” of the Precog Software in this or any other document means “license” in accordance with the terms contained in this Agreement. Licensee may make a reasonable number of backup copies of the Precog Software and documentation for internal, non-commercial, non-production use. All titles, trademarks and copyright and restricted notices in the Precog Software must be reproduced in any copies Licensee is permitted to make hereunder.
      1. Cloud License. If indicated on an applicable Order, subject to Licensee’s compliance with this Agreement, during the term of this Agreement, Precog grants Licensee a limited, non-exclusive, personal, non-transferable, non-sublicensable right to access and use the Precog Software in accordance with the terms and conditions set forth herein and in such applicable Order.
      2. OnPremises Container License. If indicated on an applicable Order, subject to Licensee’s compliance with this Agreement, during the term of this Agreement, Precog grants Licensee a limited, non-exclusive, personal, non-transferable, non-sublicensable right to install and operate the Precog Software in accordance with the terms and conditions set forth herein and in such applicable Order.
    2. Limitations on License Grant. The rights granted in this Section do not include any right to modify any portion of the Precog Software. Licensee shall receive no right to promote, market, or provide access to the Precog Software on a standalone basis or to provide access to the functionality of the Precog Software to third parties unless authorized by a separate agreement with Precog. Access and use of the functionality of the Precog Software will be solely by Licensee and no more than the number of Authorized Uses as specified on each applicable Order. “Authorized Use” means is a unit, for example of sources or volume, specified on an applicable Order.
  4. RESTRICTIONS. The Precog Software, including the databases, software development tools, application programming interfaces, and other software provided as part of the Precog Software and the structure, organization, and underlying data, information, and source code thereof, constitute valuable intellectual property of Precog. In addition to the other restrictions in this Agreement, Licensee will not and will not permit any third party to: (1) use or access the Precog Software or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, translate, or create derivative works from the Precog Software; (3) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber the Precog Software or any portion thereof; (4) make the Precog Software available to any third party, including without limitation re-selling or incorporating into a separate application (e.g. OEM distribution), except as part of a separate written agreement with Precog; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for the Precog Software; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Precog Software; (7) utilize the Precog Software for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation of the Precog Software or attempt to gain unauthorized access to the Precog Software; (9) use automated scripts to collect information from or otherwise interact with the Precog Software; (10) alter, obscure, or remove any copyright notice, copyright management information or proprietary legend contained in or on the Precog Software. All use of the Precog Software will be in accordance with any documentation for the Precog Software provided by Precog; (11) use the Precog Software together with other third-party software in a derivative work that causes the Precog Software to become subject to a third-party license; or (12) use the Precog Software for benchmarking or to create products or services like it.
  5. MAINTENANCE OR SUPPORT. Any support, maintenance, or training for the Precog Software, will be pursuant to a separate agreement for support, maintenance, or training, as applicable, provided that any updates, upgrades, new versions, or new releases of or to the Precog Software provided by Precog will be treated as part of the “Precog Software” for purposes of this Agreement. For questions regarding the Precog Software, please email [email protected].
  6. FEES AND PAYMENT. Licensee agrees to pay Precog, or any applicable third party indicated in any applicable Order, all fees and other amounts set forth in each Order under this Agreement (“Fees”). All Fees will be invoiced as indicated in each applicable Order. If the applicable Order does not specify any applicable payment terms, Licensee agrees to pay all Fees as set forth on each invoice for the Fees issued by Precog under this Agreement on the date of invoice before being given access to the Precog Software. If Licensee has specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Licensee grants Precog the right to charge the credit card or debit the bank account provided to Precog for all Fees incurred under this Agreement. Except as otherwise set forth herein, all Fees will be non-refundable once paid to Precog (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Precog may change any portion of the Fees upon any renewal of this Agreement, such changes to take effect at the beginning of the subsequent term of this Agreement.
  7. OWNERSHIP. All right, title, and interest in the Precog Software, including any derivatives, modifications, improvements, or enhancements thereof or thereto, created by either party, either alone or with the other party or any third party, and all intellectual property rights therein or relating thereto throughout the world, and any other deliverables and materials furnished or made available hereunder, including any copies made by Licensee, corrections, bug fixes, enhancements, updates, upgrades, and new releases, are and will remain the exclusive property of Precog. Licensee agrees to and does hereby make all assignments necessary to enable Precog to maintain ownership of the Precog Software as set forth in this Section. Licensee will perform all acts reasonably necessary to assist Precog in perfecting and defending Precog’s rights and interests in the Precog Software as reasonably requested by Precog. Except as expressly set forth in this Agreement, Precog grants no rights or licenses to Licensee (whether by implication, estoppel, or otherwise) in or to the Precog Software or any intellectual property rights therein or relating thereto. Any rights not expressly granted to Licensee hereunder are reserved by Precog.
  8. SUPPORT SERVICES. Licensee may request that we provide certain support services related to the Precog Software. Any support services to be provided will be included in the Order or a separate agreement governing such services, which shall describe the fees, costs, and expenses payable by Licensee in connection with the performance of such services, and which shall describe the scope of such services. The Order and any ancillary agreement for the provision of support services (a “Support Agreement”) shall be binding upon the parties only after mutual execution or performance by us and payment of any required fees by Licensee. Any such Order and Support Agreement shall be considered an integral part of this Agreement.
  9. Data Privacy and Security. If Licensee installs and uses the Precog Software on-premise network environments under its control, Licensee is solely responsible for: (A) use of the Precog Software, including without limitation, installation, deployment, and management of the Precog Software; (B) use of the Precog Software in compliance with all applicable laws; (C) ensuring the security of all data collected, processed, stored, and maintained using the Precog Software; and (D) providing adequate notice and obtaining and maintaining valid consents from all of Licensee’s end users, as may be necessary under applicable law (including data protection or data processing laws and regulations), to process their personal data using the Precog Software for Licensee’s intended purposes. Precog will not have any access to any data which is accessed and used as part of, or through Licensee’s use of the Precog Software. Therefore, Precog is not considered a ‘processor’ under the European Union’s General Data Protection Regulation (EU/2016/679) (GDPR) or like privacy laws. For business to business data collected during the sales, registration, marketing and installation process, including names of natural persons, email addresses, IP addresses, domains, and machine names accessible or used by the Precog Software which are automatically and securely transmitted to us in the United States of America, we are a ‘processor’ and rely on the legal basis of legitimate interest, consent and contract to securely process and store such information as more fully set out in privacy policy available at https://precog.com/privacy-policy/.
  10. THIRD PARTY CODE. The Precog Software may contain or include software code owned or provided by third party licensors of Precog (“ThirdParty Code”). For any Third-Party Code clearly indicated to be subject to the terms of a third-party license (a “ThirdParty License”), the terms of the applicable Third-Party License will apply to the Third-Party Code independent of the terms of this Agreement. All other Third-Party Code provided to Licensee by Precog may be used only under the terms of this Agreement. Nothing in this Agreement limits Licensee’s rights under, or grants rights to Licensee that supersede, the terms of any such applicable Third-Party License.
  11. TERM AND TERMINATION. The term of this Agreement will begin on the Effective Date and will continue for the subscription term purchased under the applicable Order, unless terminated earlier under this Section. If no subscription term is stated in the applicable Order, then the subscription term of this Agreement will be 1 year. Except as specified in an applicable Order, at the end of each subscription term, the term of this Agreement will automatically renew for an additional subscription term of equal duration, unless either party gives the other party notice of non-renewal at least 30 days prior to the end of the then-current subscription term. Either party may terminate this Agreement for any reason upon 30 days’ notice to the other party, provided that Precog will provide no refunds in the event of Licensee’s termination for convenience. Precog may also terminate this Agreement upon notice to Licensee if Licensee breaches any term of this Agreement and fails to cure such breach within 10 days of notice thereof from Precog if such breach is capable of being cured, or immediately if the breach is not capable of being cured. Upon any termination or expiration of this Agreement, all rights and licenses granted to Licensee hereunder will immediately terminate and Licensee will immediately and at Licensee’s expense: (1) cease all use of the Precog Software; and (2) at the option of Precog, return to Precog or destroy, all Precog Software and Confidential Information. Upon the request of Precog, Licensee (or, as applicable, an officer of Licensee) will certify in writing to Licensee’s compliance with the terms of this Section. The relevant portions of Sections 1, 4, 6- 9, and 12-22 will survive termination or expiration of this Agreement for any reason.
  12. RECORDS AND INSPECTION. During the term of this Agreement and for a period of 12 months thereafter, Licensee will keep and maintain detailed records reflecting all information reasonably required for Precog to confirm Licensee’s compliance with this Agreement, including confirmation of all Authorized Uses and Instances. During the term of this Agreement and for a period of 12 months following any termination or expiration, Precog may, upon 2 business days advance written notice, conduct a review of such records to confirm Licensee’s compliance with the terms of this Agreement. As part of such inspection, Precog may examine, audit, and take extracts from such records. If any review reveals an underpayment of any Fees under this Agreement, Licensee will promptly pay the amount of the underpayment. If such underpayment exceeds 5% of the Fees due under this Agreement during any given payment period, Licensee will pay Precog interest on the amount of such underpayment from the time of such underpayment at a rate of 12% per annum (or, if less, the maximum amount permitted by applicable law) and reimburse Precog for the actual cost of its review. Precog may, at its discretion, retain an independent auditor to conduct such review.
  13. WARRANTY AND DISCLAIMER. Each party hereby represents, warrants, and covenants to the other that: (1) it has the legal right and authority to enter into this Agreement; (2) this Agreement forms a binding legal obligation on behalf of such party; and (3) it has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE PRECOG SOFTWARE IS PROVIDED BY PRECOG AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, PRECOG EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT AND THE PRECOG SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. PRECOG DOES NOT WARRANT THAT THE SERVICES OR FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. FURTHERMORE, NEITHER PRECOG (NOR ITS LICENSORS) WARRANT OR MAKE ANY REPRESENTATIONS AND DISCLAIM ALL LIABILITY REGARDING ANY LOSS OF DATA OR LOSS OF USE OF DATA (INCLUDING PERSONAL DATA), THE PERFORMANCE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PRECOG OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS UNLESS CONFIRMED IN WRITING BY PRECOG AS AN AMENDMENT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN LICENSEE’S OR CHANNEL PARTNER’S JURISDICTION. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION, PRECOG’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
  14. INDEMNIFICATION. Both parties will indemnify, hold harmless, and defend the other party (and its officers, directors, employees, contractors, and agents) from and against any actual damages, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees) incurred in connection with or because of the indemnifying party’s infringement of any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person. The indemnified party shall cooperate with the indemnifying party in connection with the indemnified party’s defense of any such suit. At indemnified party’s sole discretion, it may tender control of any such suit to the indemnifying party. The indemnified party shall cooperate in connection with the defense of the claim at the reasonable expense of the indemnifying party.
  15. LIMITATION OF LIABILITY. IN NO EVENT WILL PRECOG BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE PRECOG SOFTWARE, INCLUDING ANY LOST, CORRUPTED, OR ALTERED DATA OR INFORMATION, LOSS OF USE OF DATA OR INFORMATION, RECOVERY OF DATA OR INFORMATION, OR LOSS OR INTERRUPTION OF BUSINESS OR PROFITS, EVEN IF PRECOG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE. IN NO EVENT WILL THE LIABILITY OF PRECOG RELATING TO THIS AGREEMENT, THE PRECOG SOFTWARE, OR ANY RESULTS OBTAINED FROM THE USE OF THE PRECOG SOFTWARE, EXCEED THE AGGREGATE OF THE AMOUNTS PAID BY LICENSEE TO PRECOG UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, PRECOG’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
  16. CONFIDENTIALITY. For purposes of this Agreement, “Confidential Information” means any non-public information that is marked “confidential” or that a reasonable person should understand is confidential, including, but not limited to, the Precog Software and all documentation, information, data, and materials relating to the Precog Software, regardless of the form thereof, including all copies and extracts thereof. Licensee will not disclose Confidential Information to any third party without Precog’s prior written consent. Licensee may disclose the Confidential Information only to those of its employees who have a need to know the Confidential Information for purposes of Licensee’s valid use of the Precog Software as permitted under this Agreement and who are bound by an obligation of confidentiality at least as protective of the Confidential Information as the terms of this Agreement. Licensee will treat all Confidential Information with the same degree of care as Licensee treats its own confidential information which, in no event, will be less than reasonable care. Licensee will not utilize the Confidential Information other than as expressly permitted in this Agreement. Both parties agree that if the one party provides the other with any suggestions, comments, or other feedback about their Confidential Information (“Feedback”) such Feedback is given voluntarily. Both parties also agree that even if the party giving such Feedback designates it as confidential, unless the parties enter into a separate subsequent written agreement, the Feedback shall not be confidential and the owner of the original Confidential Information shall be free to use, disclose, reproduce, license, or otherwise distribute the Feedback in their sole discretion without any obligations or restrictions of any kind, including without limitation.
  17. UTILIZATION DATA. Precog will have the right to collect, extract, compile synthesize, and analyze data or information resulting from Licensee’s utilization of the Precog Software (not the data that Licensee accesses when using Precog). To the extent collected by Precog, such data will be solely owned by Precog and may be used by Precog for any lawful business purpose without a duty of accounting to Licensee or any third party, provided that such data is used only in an aggregated form without specifically identifying Licensee as the source of the data.
  18. EQUITABLE RELIEF. Due to the unique nature of the Precog Software and the Confidential Information, there can be no adequate remedy at law for any breach of Licensee’s obligations hereunder, that any such breach may allow Licensee or third parties to unfairly compete with Precog resulting in irreparable harm to Precog, and therefore, that upon any such breach of this Agreement or threat thereof, Licensee will not oppose any attempt by Precog to obtain, in addition to whatever remedies it may have at law, an injunction or other appropriate equitable relief without making any additional showing of irreparable harm (and agrees to support the waiver of any requirement that Precog be required to post a bond prior to the issuance of any such injunction or other appropriate equitable relief).
  19. U.S. GOVERNMENT END USERS. The Precog Software, including all Third-Party Software, is a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government Users acquire the licenses granted with respect to the software and Third-Party Software with only those rights set forth herein.
  20. EXPORT CONTROLS. The Precog Software, including all Third-Party Software, and related technology are subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. Licensee agrees to strictly comply with all such laws and regulations and acknowledge that Licensee has the responsibility to obtain such licenses to export, re-export, or import as may be required. Licensee will indemnify and hold Precog and all Third-Party service providers harmless from all claims, losses, liabilities, damages, fines, penalties, costs, and expenses (including attorney’s fees) arising from or relating to any breach by Licensee of Licensee’s obligations under this Section.
  21. NOTICE. All notices to be given by a party hereunder will be in writing and will either be via: (1) hand-delivery; (2) Federal Express or a comparable overnight mail service; or (3) certified mail, return receipt requested. Precog may also provide Licensee with any notices under this Agreement by sending Licensee an email to any email address Licensee provides to Precog in connection with an Order. Notices provided to Precog will be deemed given when received by Precog. Notices provided to Licensee by email will be deemed given 24 hours after sending via e-mail. Other notices provided to Licensee will be effective upon the earlier of actual receipt (or when delivery is refused) or 2 business days after being deposited in the mail, whichever occurs sooner. Either party may change its address for notice by giving notice of the new address to the other party.
  22. GENERAL. This Agreement, our Privacy Policy, and any Orders entered by the parties hereunder constitute the complete and exclusive understanding and agreement between the parties and supersede any prior or contemporaneous oral or written proposal, agreement, or other communication between the parties, regarding Licensee’s access to and use of the Precog Software. Any inconsistent terms on documents issued by Licensee at any time, are for Licensee’s internal use only, and any provisions contained in any such document shall have no effect whatsoever upon this Agreement. This Agreement may be executed via electronic signature. This Agreement will be governed by the laws of the State of Colorado, without regard to conflicts of law principles thereof. The federal and state courts in Denver, Colorado will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. A party is not liable for non-performance of obligations under this Agreement if the non-performance is caused by events or conditions beyond that party’s control, and the party gives prompt notice and makes all reasonable efforts to perform. In no event will this provision affect a party’s obligation to make payments under this Agreement. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party. Except as expressly limited herein, every right and remedy hereunder is cumulative with every other right and remedy herein or in any other agreement between the parties or under applicable law. Any reference herein to “including” will mean “including, without limitation.” Licensee may not assign or delegate, whether by operation of law or otherwise, this Agreement or any of Licensee’s rights or obligations under this Agreement to any third party without the prior written consent of Precog. For the purposes of this Section, any change of control of Licensee will be deemed an assignment. Any assignment in violation of the foregoing will be null and void and will be considered a breach of this Agreement. Precog will not be liable for any failure in performance under this Agreement to the extent that such failure results from causes beyond Precog’s reasonable control.