This End User License Agreement (this Agreement) is entered into between Precog Data, Inc., a Delaware corporation (Precog), and you, or if you are entering this Agreement on behalf of an entity or other organization, that entity or organization (in either case, You).
Precog has developed and offers data preparation and transformation software known as Precog (the Precog Software). You wish to obtain a license to access and use the Precog Software as an end user for your own purposes. This Agreement sets forth the terms and conditions under which Precog is willing to provide You with a limited license to use the Precog Software as an end user for Your own purposes. Unless You enter into another agreement with Precog relating to the Precog Software, this Agreement will exclusively govern Your use of the Precog Software in all respects.
PLEASE CAREFULLY READ THIS AGREEMENT. BY AGREEING TO THIS AGREEMENT OR BY ACCESSING OR USING THE PRECOG SOFTWARE, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, PRECOG IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PRECOG SOFTWARE AND YOU MUST NOT ACCESS OR USE THE PRECOG SOFTWARE. IF YOU AGREE TO THIS AGREEMENT OR ACCESS OR USE THE PRECOG SOFTWARE, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement supersedes any and 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. This Agreement is entered into as of the earlier of the date You first agree to this Agreement or first access or use the Precog Software (the Effective Date).
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.
Orders. In connection with this Agreement, You have 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.
Licensed Users. As indicated on an applicable Order, subject to Your compliance with this Agreement, during the term of this Agreement Precog grants to You a limited, non-exclusive, personal, non-transferable, non-sublicensable right to install and operate the Precog Software solely for Your own internal business purposes for access and use by no more than the number of Licensed Users specified on each applicable Order.
Hosted Applications. As indicated on an applicable Order, subject to Your compliance with this Agreement, during the term of this Agreement Precog grants to You a limited, non-exclusive, personal, neon-transferable, non-sublicensable right to install and operate the Precog Software solely for purposes of making available the functionality of the Precog Software through one or more hosted web applications that You have developed and operate through Your business (Hosted Applications). This license grant is conditioned on the Precog Software being installed on no more than the number of Licensed Servers specified on each applicable Order and the functionality of the Precog Software being accessed solely through Your own Hosted Applications by no more than the number of end users or other permitted resources for which You have purchased license Tokens under this Agreement. The rights granted in this Section do not include any right to modify any portion of the Precog Software or integrate the Precog Software into a Hosted Application. You 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 other than through a Hosted Application. All use of the functionality of the Precog Software will be solely by end users of Hosted Applications in connection with the operation of those Hosted Applications for their own internal business purposes.
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, You 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, except as part of a Hosted Application as indicated in this Agreement; (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; or (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.
Maintenance or Support. Any support, maintenance, or training for the Precog Software, will be pursuant to Precogs then-current terms for support, maintenance, or training, as applicable. 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.
Fees and Payment. You agree 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, You agree to pay all Fees as set forth on each invoice for the Fees issued by Precog under this Agreement in immediately available U.S. funds within 30 days of the date of invoice. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant 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 1% 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.
Ownership. 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, are and will remain the exclusive property of Precog and its licensors. Without limiting the foregoing, Precog obtains no ownership interest in or to any portion of any Hosted Application developed or authored by You without the assistance or involvement of Precog and, as between You and Precog, all such portions of each Hosted Application are and will remain Your exclusive property. You agree to and do hereby make all assignments necessary to enable Precog to maintain ownership of the Precog Software as set forth in this Section. You will perform all acts reasonably necessary to assist Precog in perfecting and defending Precogs 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 You (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 You hereunder are reserved by Precog.
Third Party Code. The Precog Software may contain or include software code owned or provided by third party licensors of Precog (Third Party Code). For any Third Party Code clearly indicated to be subject to the terms of a third party license (a Third Party 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 You by Precog may be used only under the terms of this Agreement. Nothing in this Agreement limits Your rights under, or grants rights to You that supersede, the terms of any such applicable Third Party License.
Term and Termination. The term of this Agreement will begin on the Effective Date and will continue for the subscription term purchased under Your Order, unless terminated earlier under this Section. If no subscription term is stated in Your 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 current subscription term. Either party may terminate this Agreement for any reason upon 30 days notice to the other party. Precog may also terminate this Agreement upon notice to You if You breach any term of this Agreement and fail to cure such breach within 10 days of notice thereof from Precog. Upon any termination or expiration of this Agreement all rights and licenses granted to You hereunder will immediately terminate and You will immediately and at Your 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, You (or, as applicable, an officer of Your organization) will certify in writing to Your compliance with the terms of this Section. The relevant portions of Sections 1, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 will survive termination or expiration of this Agreement for any reason.
Records and Inspection. During the term of this Agreement and for a period of 12 months thereafter, You will keep and maintain detailed records reflecting all information reasonably required for Precog to confirm Your compliance with this Agreement, including confirmation of all Licensed Users and Licensed 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 Your 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, You 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, You 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 retain conduct such review.
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. 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. 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.
Indemnification. You will indemnify, hold harmless, and defend Precog (and its officers, directors, employees, contractors, and agents) from and against any damages, liabilities, losses, costs, and expenses (including reasonable attorneys fees) incurred in connection with or as a result of: (1) Your use of or access to the Precog Software or any Hosted Applications, including any data, information, content, or results generated through the Precog Software, whether or not in breach of this Agreement; (2) Your actual or alleged breach of any provision of this Agreement; or (3) any damage to property or injury to or death of any person directly or indirectly caused by You.
Limitation of Liability. IN NO EVENT WILL PRECOG BE LIABLE TO YOU 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 $100. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, PRECOGS LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Confidentiality. For purposes of this Agreement, Confidential Information means 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. You will not disclose Confidential Information to any third party without Precogs prior written consent. You may disclose the Confidential Information only to those of Your employees who have a need to know the Confidential Information for purposes of Your 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. You will treat all Confidential Information with the same degree of care as You treat Your own confidential information which, in no event, will be less than reasonable care. You will not utilize the Confidential Information other than as expressly permitted in this Agreement.
Utilization Data. Precog will have the right to collect, extract, compile synthesize, and analyze data or information resulting from Your utilization of the Precog Software (not the data that You access 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 You or any third party, provided that such data is used only in an aggregated form without specifically identifying You as the source of the data.
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 Your obligations hereunder, that any such breach may allow You 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, You 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).
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.
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. You agree to strictly comply with all such laws and regulations and acknowledge that You have the responsibility to obtain such licenses to export, re-export, or import as may be required. You will indemnify and hold Precog and all Third Party Providers harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorneys fees) arising from or relating to any breach by You of Your obligations under this Section.
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 You with any notices under this Agreement by sending You an email to any email address You provide to Precog in connection with an Order. Notices provided to Precog will be deemed given when actually received by Precog. Notices provided to You by email will be deemed given 24 hours after sending via e-mail. Other notices provided to You 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.
General. This Agreement is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Precog Software. 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. 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. Each and every right and remedy hereunder is cumulative with each and 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.” You may not assign or delegate, whether by operation of law or otherwise, this Agreement or any of Your 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 You 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 Precogs reasonable control.