Platform Access and Services Agreement
Last updated September 12, 2019
1. PRODUCT ACCESS
1.1. Provision of the Product. Aumni agrees to provide Customer with access to the Product on a subscription basis for a set term as set forth on the Order Form (“Contract Term”).
1.2. General Restrictions. Customer shall not: (a) rent, lease, copy, provide access to or sublicense the Product to a third party or use the Product to provide a service to a third-party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to the Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to Aumni), (c) modify the Product, or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in the Product (including any reports or data printed from the Product), (e) incorporate the Product into any other offering (whether software as a service or otherwise), or (f) publicly disseminate information or analysis regarding the performance of the Product.
1.3. Security. Customer and its Permitted Users (as defined below) may access and use the Product solely for Customer’s own benefit and in accordance with the terms and conditions of this Agreement and any end user technical documentation provided with the Product. Use of and access to the Product, in whole or in part, is permitted to those persons designated by Customer pursuant to the terms this Agreement (“Permitted Users”). If Customer is given passwords to access the Product, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords and shall immediately notify Aumni of any unauthorized use of the Customer’s account, breach of security, or loss or theft of user ID or passwords. Customer acknowledges that while the security of Customer’s account will be maintained through the use of passwords, it is possible for Customer’s accounts to be accessed by unauthorized third parties via communication between Customer and Aumni using the internet, other network communications, facilities, telephone, or other electronic means. Customer may permit its independent contractors and consultants who are not competitors of Aumni (“Contractors”) and Affiliates (as defined below) to serve as Permitted Users, provided Customer remains responsible for compliance by each such Contractor or Affiliate with all of the terms and conditions of this Agreement and any such use of the Product by such Contractor or Affiliate is for the sole benefit of Customer. “Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
1.4. Hosting Services. Aumni will provide the Hosting Services through a third party hosting facility (such as AWS) and may update the content, functionality and user interface of the Hosting Services from time to time in its sole discretion and in accordance with this Agreement. Customer will be solely responsible for the data entered in the Product, whether entered by the Customer or by Aumni on behalf of the Customer and any other item not related to Aumni’s Hosting Services responsibility.
1.5. Hosting Service Access. In order to use the Product, Customer must have or obtain access to the internet. Customer agrees that Aumni is not providing Customer with access to the internet in order to use the Product and that Customer is solely responsible for obtaining and maintaining such internet access and for providing all equipment necessary to obtain and maintain such internet access. Aumni does not and cannot control the flow of data to or from Aumni’s network, designated hosting facility and/or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the internet (or portions thereof). Aumni agrees to use commercially reasonable efforts to take any actions it deems appropriate to remedy and avoid such events. However, Aumni cannot guarantee that such events will not occur. Accordingly, Aumni disclaims any and all liability resulting from or related to such events.
2. CUSTOMER DATA
2.2. Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to Aumni. Subject to the terms of this Agreement, Customer hereby grants to Aumni a non-exclusive, worldwide, royalty-free right to use, copy store, transmit, modify, create derivative works of and display (a) the Customer Data solely to the extent necessary to provide the Product to Customer; and (b) such portion of the Customer Data that is available to all investors in a particular transaction to any of those other investors in that particular transaction. Notwithstanding the foregoing Customer agrees that Aumni may use for its business purposes derivative works of the Customer Data so long as such works are in an anonymized and aggregated form and all right, title and interest (including any and all intellectual property rights) in and to such derivative works shall be owned by Aumni.
3. OWNERSHIP. This is a subscription agreement for use of the Product and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to the Product and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise and Customer agrees that Aumni or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Product, documentation related to the Product (“Documentation”), Professional Services deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, non-Customer specific data and aggregated statistical data contained therein), technology, reports and documentation (collectively, “Aumni Technology”). Further, Customer acknowledges that the Product is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the Product itself.
4. FEES & PAYMENT. All fees owing by Customer to Aumni are set forth in the Order Form. Fees are subject to periodic increases after the initial Contract Term and become effective beginning on the first day of each applicable renewal term; provided, that Aumni will notify Customer in writing of any such increase prior to its effectiveness. If Customer objects to the increase, then Customer may terminate this Agreement effective on expiration of the then current Contract Term. Customer acknowledges that the expiration of any discount or incentive programs to which Customer was previously entitled shall not constitute a fee increase or otherwise require notice thereof. Except as expressly set forth in Section 6 (Limited Warranty), all fees are non-refundable. Aumni’s fees are exclusive of all shipping costs and Customer is required to pay any sales, withholding, or similar taxes or levies, other than taxes based on the income of Aumni. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
5. CONTRACT TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of the Contract Term. Upon expiration of the initial Contract Term, this Agreement shall automatically renew for the periods set forth in the Order Form, unless either party gives the other written notice of termination at least 30 days prior to expiration of the then-current Contract Term.
5.2. Termination for Cause. Either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within 10 days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within 60 days thereafter).
5.3. Effect of Termination. Upon any termination of this Agreement, Customer shall immediately cease any and all use of and access to the Product (including any and all related Aumni Technology) and delete (or, at Aumni’s request, return) any and all copies of the Documentation, any Aumni passwords or access codes and any other Aumni Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Product, and that Aumni may delete any such data at any time. Termination of this Agreement is not an exclusive remedy and the exercise of either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: 1.2 (General Restrictions), 1.3 (Communication Services), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.2 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9 (Indemnification), 10 (Confidential Information), and 11 (General Terms).
6. LIMITED WARRANTY
6.1. Limited Warranty. Aumni warrants, for Customer’s benefit only, that the Product will operate in substantial conformity with all applicable product descriptions provided to Customer in writing. Aumni does not warrant that Customer’s use of the Product will be uninterrupted or error-free, nor does Aumni warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Aumni’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Aumni’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Aumni determines such remedies to be impracticable, to allow Customer to terminate the Contract Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Product or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within 30 days of the date on which the condition giving rise to the claim first appeared, or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.
6.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, THE PRODUCT, HOSTED SERVICES AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER AUMNI NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD. AUMNI SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AUMNI. AUMNI IS NOT A LAW FIRM AND NO LEGAL ADVICE IS BEING PROVIDED THROUGH CUSTOMERS USE OF THE PRODUCT OR ANY PROFESSIONAL SERVICES.
7. ADDITIONAL SERVICES.
7.1 Professional Services. Any professional consulting services (“Professional Services”) to be provided by Aumni to Customer will be set forth in the Order Form or a separate agreement to be signed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information.
7.2 Support. Aumni shall provide email support to Customer from 9AM to 5PM Mountain Standard Time, Monday through to Friday, business days. Aumni shall use commercially reasonable efforts to respond to support requests within one business day and shall address (internally and externally) such support requests in a commercial reasonable manner. Support shall include, without limitation, troubleshooting system functionality, providing guidance on usage and workflow, and identifying and escalating issues which Aumni prioritizes, in its sole and absolute discretion, based on severity, scope and impact. Aumni may offer personalized training, implementation, and adoption programs at an additional cost. Aumni shall have no obligation to provide any custom code development, API scripting, or contractual engineering services for Customer.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, AUMNI’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AUMNI DURING THE PRIOR TWELVE MONTHS UNDER THIS AGREEMENT. WITH RESPECT TO ANY FREE TRIAL OF THE PRODUCTS OR SERVICES, AUMNI’S AGGREGATE LIABILITY WILL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS, REGARDLESS OF ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY.
8.3. THIS SECTION 8 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “GENERAL RESTRICTIONS,” “CUSTOMER DATA” OR “CONFIDENTIAL INFORMATION”.
8.4. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1 Aumni Indemnification. Aumni shall indemnify and hold harmless Customer, its licensors and its affiliates, officers, directors, employees, and agents from and against all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) violation by Aumni of Aumni’s representations and warranties in this Agreement; or (ii) breach by Aumni of any terms of this Agreement, provided that Aumni shall have received from Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for Aumni to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of the Product is, or in Aumni’s opinion is likely to be, enjoined due to a claim of infringement, or if required by settlement, Aumni may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Product; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Contract Term which was paid by Customer but not rendered by Aumni. The foregoing indemnification obligations of Aumni shall not apply: (1) if the Product is modified by any party other than Aumni, but solely to the extent the alleged infringement is caused by such modification; (2) the Product is combined with other products or processes not authorized by Aumni, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Product; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Product. THIS SECTION 9 SETS FORTH AUMNI’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Customer Indemnification. Customer shall indemnify and hold harmless Aumni, its licensors and its affiliates, officers, directors, employees, and agents from and against all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) any action taken (or not taken) by Customer based upon use of the Product; (ii) any Customer Data; (iii) any service or product offered by Customer in connection with or related to the Product; (iv) violation by Customer of Customer’s representations and warranties in this Agreement; or (v) breach by Customer of any terms of this Agreement, provided that Customer shall have received from Aumni: (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Aumni.
10. CONFIDENTIAL INFORMATION
10.1. Confidentiality. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Aumni Technology, performance information relating to the Product, and the terms and conditions of this Agreement shall be deemed Confidential Information of Aumni without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. Customer Data shall be deemed Confidential Information of Customer without any marking or further designation subject to the terms of Section 2 above. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). For the avoidance of doubt, aggregated and anonymized data derived in connection with this Agreement shall be deemed not to be Confidential Information of Customer. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. In the event of any conflict between the terms of this Section 10.1 and the confidentiality terms contained in any other agreements between the parties, the terms of this Section 10.1 shall prevail.
11. GENERAL TERMS
11.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section
11.1 will be null and void.
11.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco, California and both parties hereby submit to the personal jurisdiction of such courts.
11.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
11.5 Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at their respective addresses of record or at such other address as may be given in writing by either party to the other in accordance with this Section and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
11.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
11.7 Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party.
11.8 Publicity; References. Provided that Aumni complies with trademark usage requirements notified to it by Customer, Aumni may refer to Customer (including on its website and in its related marketing materials and communications) as one of Aumni’s customers and may use Customer’s logo as part of such reference(s). Upon prior written notice to Customer, Aumni may issue a press release announcing the relationship between Aumni and Customer.
11.9 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Product is an on-line, subscription-based product, and that in order to provide improved customer experience Aumni may make changes to the Product. All exhibits to this Agreement are a part of this Agreement.
11.10 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
11.11 Subcontractors. Aumni may use the services of subcontractors for performance of services under this Agreement, provided that Aumni remains responsible for (i) compliance by any such subcontractor with the terms of this Agreement, and (ii) for the overall performance of the Product as required under this Agreement.
11.12 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.