Early Access Agreement
IMPORTANT! THIS EARLY ACCESS AGREEMENT (“AGREEMENT”) IS BY AND BETWEEN VECTORIZED, INC. (“VECTORIZED”) AND YOU AS CUSTOMER (“CUSTOMER” OR “YOU”) IN CONNECTION WITH THE RIGHT TO LICENSE THE BETA SOFTWARE UNDER THE APPLICABLE EARLY ACCESS ORDER FORM (THE “ORDER”) TO WHICH THIS AGREEMENT IS INCORPORATED BY REFERENCE. BY EXECUTING THE ORDER, ACCESSING OR USING THE BETA SOFTWARE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) THE INDIVIDUAL SIGNING THE ORDER ON CUSTOMER’S BEHALF IS AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF CUSTOMER, AND IS DOING SO, (B) YOU CAN LEGALLY SIGN THE APPLICABLE ORDER AND ENTER INTO THIS AGREEMENT AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND CUSTOMER SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, VECTORIZED WILL NOT PROVIDE YOU THE RIGHT TO AND USE THE BETA SOFTWARE. Capitalized terms not defined in this Agreement shall have the meaning given to them in the applicable Order.
Vectorized provides a unified, high-throughput, low-latency software platform for queuing real-time data feeds (as modified from time to time, the “Vectorized Software”);
Vectorized is willing to allow certain preferred customers to get early access to the beta version of the Vectorized Software (the “Beta Software”);
Customer wants to get early access to the Beta Software through a non-exclusive license, and Vectorized is willing to grant Customer early access through an non-exclusive license to use the Beta Software internally for its business, subject to, and in accordance with, the terms and conditions of the applicable Order and this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Subject to the terms and conditions of this Agreement and the applicable Order, and conditioned on Customer’s compliance therewith, Vectorized hereby grants to Customer a worldwide, non-exclusive, non-sublicensable and non-transferable, limited license to use the Beta Software internally in connection with its business (the “License”). Customer shall not use the Beta Software for any purpose except as expressly licensed hereby and in accordance with the provisions of this Agreement.
- Use Restrictions.
Except as expressly permitted under this Agreement, Customer shall not, and shall not permit any third party to:
- copy the Beta Software, in whole or in part, including any Beta Software or algorithms;
- modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Beta Software;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Beta Software to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
- reverse engineer, disassemble, decompile, decode or adapt the Beta Software, or otherwise attempt to derive or gain access to the source code of the Beta Software, in whole or in part;
- bypass or breach any security device or protection used for or contained in the Beta Software or documentation;
- remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the documentation, warranties, disclaimers, or intellectual property rights, proprietary rights or other symbols, notices or marks on or relating to the Beta Software or documentation;
- use the Beta Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law;
- install, use, access, display and run the Beta Software except in accordance with the terms of this Agreement and the applicable Order;
- use the Beta Software for purposes of: (i) benchmarking or competitive analysis of the Beta Software; (ii) developing, using or providing a competing software or algorithms product or service; or (iii) any other purpose that is to Vectorized’s detriment or commercial disadvantage; or
- in any manner or for any purpose or application not expressly permitted by this Agreement.
- Support and Maintenance. Vectorized shall provide support and maintenance with respect to the Beta Software by email at firstname.lastname@example.org. Support hours are 7:00 am to 5:00 pm PST during Business Days in accordance with the Support and Maintenance Plan as provided in the applicable Order.
- Confidentiality. During the term of the Agreement and for a period of five (5) years thereafter, each party agrees that any confidential and proprietary information, including, but not limited to, any customer data, trade secrets, research, technology, forecasts, finances and business information, business model or business strategy disclosed by the other party during the term of this Agreement and identified in writing or orally as confidential or which the receiving party knew or reasonably should have known should be treated as confidential (“Confidential Information”) shall not, without the disclosing party’s prior written authorization, be used except in connection with the License and this Agreement. All intellectual property rights possessed by Vectorized in any Confidential Information remain the property of Vectorized and, except for the License granted in accordance with Section 1, nothing in this Agreement shall be deemed to transfer such ownership to Customer or any third party. Each party shall (a) protect the confidentiality of the other party’s Confidential Information using at least the same measures it takes to protect its own confidential information of like kind, but in no event less than reasonable care and (b) restrict access to the other party’s Confidential Information to its personnel who have a need to know and who are subject to terms of confidentiality at least as restrictive as set forth in this Section 4; provided that a party shall be liable for any breach of this Section 4 by its personnel.
- Intellectual Property Rights.
- Intellectual Property Ownership. Customer acknowledges and agrees that:
- the Beta Software, and the documentation are licensed, not sold, to Customer by Vectorized and Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Beta Software, including the documentation, or in any related Intellectual Property Rights; and
- Vectorized and its licensee(s) are and will remain the sole and exclusive owners of all right, title and interest in and to the Beta Software documentation used within and supporting the operation of Beta Software, including all Intellectual Property Rights relating thereto, subject only to the License granted to Customer under this Agreement.
- Feedback. Customer hereby grants Vectorized a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, comments, or suggestions with respect to the Beta Software and all related intellectual property without restriction of any kind and without any right of accounting.
- Fees and Payment. The License Fees, the Support Fees, the Service Fees, the Additional Fees and any other fees are set forth in the applicable Order (collectively, the “Fees”) and Customer shall pay the Fees in accordance with the applicable Order.
- Early Access Additional Terms and Conditions. In consideration for getting early access to the Beta Software and the highly discounted License Fees:
(a) Vectorized may identify Customer as a customer and Customer hereby consents to Vectorized’s use of Customer’s name and logos in its lists of customers on its website and in promotional and marketing materials without any additional consent by Customer; provided that any use of Customer’s trademark style guide.
(b) In the event that the Beta Software crashes or suffers other issues, Customer shall promptly provide Vectorized with access to all data logs and other information associated with the use of the Beta Software as requested by Vectorized, including CPU usage, disk usage, network usage, how the Beta Software was being used at the time of the crash, by how many computers, etc. so that Vectorized can analyze the issue that caused the crash or issue and fix it.
- Term and Termination.
- Term. This Agreement shall become effective on the Order Effective Date of the initial Order (the “Effective Date”) and shall continue until the Initial License Term has expired, unless terminated pursuant to this Section 8 (the “Initial Term”). Upon expiration of the Initial License Term, the parties shall discuss in good faith the terms of renewal.
- Termination. This Agreement and the License may be terminated at any time:
- by Vectorized, effective on written notice to Customer, if Customer fails to pay any amount when due under the Order or this Agreement, where such failure continues more than ten (10) days after Vectorized provides written notice of such failure;
- by either party, effective on written notice to the other party, if the other party breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
- by either party, effective immediately, if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
- Effect of Termination. On the expiration or termination of this Agreement for any reason:
- all rights, licenses and authorizations granted to Customer hereunder, including the License will immediately terminate and Customer shall:
- immediately cease all use of and other activities with respect to the Beta Software and documentation other than those described in Section 8.3(a)(ii);
- within fifteen (15) days deliver to Vectorized, or at Vectorized’s written request destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Beta Software, the documentation and the Vectorized’s Confidential Information, including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials; and
- certify to Vectorized in a written instrument signed by an executive officer that it has complied with the requirements of this Section 8.3.
- all amounts payable by Customer to Vectorized of any kind under this Agreement and the applicable Order are immediately payable and due no later than ten (10) days after the effective date of the termination of this Agreement under Section 8.2.
- Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination of this Agreement, will survive the expiration or any termination of this Agreement for any reason including: Sections 4, 5, 6, 8.3, 9 – 12 and this Section 8.4.
- Limitation of Liability, Warranty Disclaimer. Except for a party’s gross negligence, fraud, or willful misconduct or a breach of Section 1, 4 or 5, in no event shall (a) Vectorized or its licensors, suppliers or affiliates (collectively, the “Vectorized Parties”) or Customer have any liability for any consequential, exemplary, special, indirect, incidental or punitive damages, including any lost business, lost business opportunity, lost profit or lost savings (whether resulting from impaired, corrupted, or lost data, software or computer failure, support failure or any other cause), corruption or loss of data, even if it has been advised of the possibility of such damages; and (b) the collective aggregate liability of the Vectorized Parties to Customer arising out this Agreement, including the Beta Software, the documentation, the Support and Maintenance Plan and any services provided by Vectorized, whether arising under or related to breach of contract, tort (including negligence), strict liability or any other legal or equitable theory, exceed the total License Fees paid by Customer under the applicable Order giving rise to the claim during the twelve (12) month period preceding the event giving rise to the claim. The foregoing limitations apply even if any remedy fails of its essential purpose.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, CUSTOMER ASSUMES ALL RISK IN CONNECTION WITH THE ACCESS AND USE OF THE BETA SOFTWARE AND ACCEPTS THE BETA SOFTWARE ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
10.1 Vectorized Indemnification. Vectorized shall indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, including Customer, a “Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively “Losses”) incurred by a Customer Indemnitee arising out of or relating to any claim by a third party (other than an affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such claim that the Beta Software, or any use of the Beta Software in accordance with this Agreement (including the documentation) infringes any U.S. intellectual property right of a third party. The foregoing obligation does not apply to the extent that such Action or Losses arise from any allegation of or relating to any:
- incorporation or combination, operation or use of the Beta Software, in or with, any intellectual property, technology or service not provided by Vectorized, if such infringement would not have occurred but for such incorporation or combination, operation or use;
- modification of the Beta Software other than: (i) by Vectorized or its contractor in connection with this Agreement; or (ii) with Vectorized’s express written authorization and in strict accordance with Vectorized’s written directions and specifications;
- use of the Beta Software after Vectorized’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights;
- negligence, abuse, misapplication or misuse of the Beta Software or documentation by or on behalf of Customer, Customer’s affiliates or representatives or a third party;
- use of the Beta Software or documentation by or on behalf of Customer (or any affiliate) that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to Vectorized’s instructions; or
- Any Losses for which Customer is obligated to indemnify Vectorized pursuant to Section 10.2.
10.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Vectorized and its affiliates, and each of its and their respective officers, directors, employees, agents, subcontractors, successors and assigns (each, including Vectorized, a “Vectorized Indemnitee”) from and against any and all Losses incurred by a Vectorized Indemnitee in connection with any claim by a third party (other than an affiliate of a Vectorized Indemnitee) to the extent that such Losses arise out of or relate to any allegation:
- that any intellectual property right or other right of any third party, or any law, is or will be infringed, misappropriated or otherwise violated by any:
- use or combination of the Beta Software by or on behalf of Customer (or any affiliate) or any of its representatives with any intellectual property, technology, service or other matter whatsoever that is not provided by Vectorized if such infringement would not have occurred but for such use or combination; and
- information, materials, intellectual property or technology or other matter whatsoever directly or indirectly provided by Customer (or any affiliate) or directed by Customer (or any affiliate) to be installed, combined, integrated or used with, as part of, or in connection with the Beta Software or documentation.
- of or relating to facts that, if true, would constitute a breach by Customer of any representation, warranty, covenant or obligation under this Agreement;
- of or relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Customer (or any affiliate) or any of its representatives with respect to the Beta Software or documentation or otherwise in connection with this Agreement; or
- of or relating to use of the Beta Software or documentation by or on behalf of Customer or any of its Representatives that is outside the purpose, scope or manner of use authorized by this Agreement or the documentation, or in any manner contrary to Vectorized’s instructions.
10.3 Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Governing Law, Dispute Resolution.
11.1 This Agreement is governed by and construed in accordance with the laws of the State of California, without regard to its conflict of law principles that would require or permit the application of the laws of any other jurisdiction.
11.2 In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement, the Beta Software, the documentation or any services provided by Vectorized (a “Dispute”) shall be settled by binding arbitration in accordance with (a) the Commercial Arbitration Rules of the American Arbitration Association if the Customer is located in the United States and (b) the International Commercial Arbitration Rules of the American Arbitration if the Customer is located outside of the United States (collectively, “AAA”), and judgment upon the award rendered by the arbitrator may be entered in any court have jurisdiction thereof. Any such arbitration shall be in English and be held in San Francisco, California.
11.3 Unless otherwise agreed by the parties, the Dispute shall be determined by one arbitrator mutually agreed upon by the parties, or if the parties cannot so mutually agree, a single arbitrator with significant relevant experience appointed in accordance with the rules of the AAA. The award shall be in writing and include the findings of fact and conclusions of law upon which it is based.
11.4 The parties will be entitled to engage in reasonable discovery, including requests for production of relevant non-privileged documents. The arbitrator may order depositions and interrogatories upon a showing of need. The arbitrator and counsel of record also have the power of subpoena process as provided by law. It is the parties’ intent that the discovery proceedings be conducted in as cost- effective manner as possible. The arbitrator shall resolve any deposition or discovery disputes.
11.5 THE PARTIES KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO HAVE ANY DISPUTE TRIED AND ADJUDICATED BY A JUDGE OR A JURY. The arbitration shall be governed by the substantive laws of the State of California, without regard to conflicts-of-law rules, and by the arbitration law of the Federal Arbitration Act (Title 9, U.S. Code). Judgment upon the award rendered may be entered in any court having jurisdiction.
11.6 The cost and expenses for the arbitration shall initially be shared equally by the parties. The arbitral proceedings and all pleadings and written evidence shall be in the English language. Any written evidence originally in a language other than English shall be submitted in English translation accompanied by the original true or copy thereof. The party prevailing in any Dispute, including any arbitration, shall be entitled, in addition to any other relief that may be granted, to be awarded costs, including its reasonable attorneys’ fees and the cost of arbitration. The amount of such costs to be awarded shall be determined by the arbitrator during the arbitration or at post-arbitration proceedings. Except as otherwise required by law, the parties and the arbitrator agree to keep confidential and not disclose to third parties any information or documents obtained in connection with the arbitration process, including the resolution of the Dispute.
12.1 Relationship of the parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
12.2 Public Announcements. Except as specifically provided in this Agreement, neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other party, which shall not be unreasonably delayed or withheld.
12.3 Export. Neither Customer nor any of its affiliates shall import, export, re-export, or transfer, directly or indirectly, any part of the Beta Software or any underlying intellectual property, information or technology except with Vectorized’s prior written approval and in full compliance with all United States, foreign and other applicable export control laws and regulations.
12.4 Entire Agreement. This Agreement and all applicable Orders constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
12.5 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without Vectorized’s prior written consent or in connection with a merger, acquisition or a sale of all or substantially all of Customer’s assets. Any purported assignment, delegation or transfer in violation of this Section 12.5 is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
12.6 Insurance. Vectorized shall maintain the insurance coverage and in the amounts set forth in Exhibit A during the Initial Term.
12.7 Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 1 (License), Section 2 (Use Restrictions), Section 4 (Confidentiality), Section 5 (Intellectual Property Rights) or Section 10 (Indemnification) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
© Vectorized, Inc. 2020