SAAS AND DATA LICENSE TERMS OF SERVICE
Last Updated: September 12, 2018
This Software as a Service and Data License Terms of Service, together with any applicable Order Form (“Order”) issued hereunder, (collectively, the “Agreement”), effective as of the date set forth on an applicable Order Form (the “Effective Date”), is between Populus Technologies, Inc., a Delaware corporation, with a place of business at 5758 Geary Boulevard, San Francisco, CA 94121 (“Populus”), and the Customer named in such Order Form (“Customer”). Populus and Customer may each be referred to individually herein as a “Party” and collectively as the “Parties”. Populus and Customer agree as follows:
1. Populus Terminal Services
(a) Subscription to Terminal Services. Subject to the terms and conditions of this Agreement, Populus hereby grants to Customer, during the Term of this Agreement, a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Populus Terminal web platform, including, where applicable, access and use of Populus’ Groundtruth and/or Mobility Manager Services (collectively, the “Terminal Services”) solely for Customer’s internal business purposes, and any external purposes expressly permitted hereunder. Customer’s access and use of the Terminal Services shall be restricted to only its Authorized Users (as defined below) and shall comply with the terms and conditions set forth below.
(b) Authorized Users. As used herein, “Authorized User” means any employee or contractor of Customer, or any such other individual as may be authorized by a mutually agreed upon written Order by the Parties, to access and use the Terminal Services pursuant to the terms and conditions of this Agreement. Any non-employee Authorized Users of Customer must be identified and approved by Populus prior to receiving access to the Terminal Services. If a Customer wishes to add additional Authorized Users, Customer may make a written request to Populus. Upon Populus’ approval and the execution of a new written Order by the Parties, Populus shall make the Terminal Services available to the additional Authorized Users.
(c) Access to Terminal Services. On or as soon as reasonably practicable after the Effective Date, Populus shall provide to Customer the necessary passwords and access protocols to allow Customer and its Authorized Users to create an account necessary to access the Terminal Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Terminal Services, and notify Populus promptly of any such unauthorized access or use known to Customer.
(d) Restrictions. Without limiting the terms of Section 1(a), Customer will not, directly or indirectly: (i) rent, lease, distribute, sublicense, or loan the Terminal Services to any third party; (ii) permit any third party to access and/or use the Terminal Services; (iii) reverse engineer, disassemble, decompile, reverse compile, or create any derivative work from any part of the Terminal Services, except as expressly permitted herein; (iv) use any of the Terminal Services in order to develop any product or service competitive with Populus’ services and offerings; (v) publish, reproduce, copy, or excerpt any data contained in the Terminal Services in Customer’s external communications, including but not limited to its products, services, presentations, publications, posters, abstracts or other materials intended for external audiences (“External Materials”), except as provided for in Section 1(f); (vi) unless otherwise agreed, use the Terminal Services, in whole or in part, in the operation of a service bureau or on an application or software as a service provider basis to support anyone or to provide data aggregation or similar services; (vii) unless otherwise agreed, incorporate any part of the Terminal Services into any product or service of Customer, or any other product or service; or (viii) otherwise use the Terminal Services in any manner prohibited by the Agreement. Customer agrees to use the Terminal Services only in accordance with all applicable federal, state, or local laws, regulations and orders (“Laws”).
(e) Customer may disclose data obtained from the Terminal Services to only those employees, contractors or consultants of Customer who have a reasonable need to access or use the data in connection with Customer’s internal business purposes. All permitted internal copies of data obtained from the Terminal Services, or internal derivative works prepared by Customer which contain information derived from any part of the Terminal Services, shall be conspicuously marked with the following confidential and proprietary notice: “Confidential Information for Internal Use Only – Source: Populus Technologies, Inc.”
(f) Customer nor any of Customer’s Authorized Users shall have the right to disclose, publish, reproduce, copy, display or excerpt data from the Terminal Services in Customer’s External Materials without Populus’ prior, written approval. Customer approval, if any is given, may be conditioned. At Populus’ request, Confidential Information provided by Populus shall be deleted from the proposed External Materials. Any External Materials approved by Populus shall be conspicuously marked with the following proprietary notice, “Source: Populus Technologies, Inc.”
The preceding restriction shall not apply to data obtained from Populus’ Mobility Manager Services, where Customer has supplied the underlying Mobility Data.
2. Customer Data License for Populus Mobility Manager Services.
(a) Limited License. Subject to the terms and conditions of this Agreement, and where applicable, Customer hereby grants to Populus during the Term of this Agreement, a non-sublicensable, non-transferable, non-exclusive license to access and use Customer’s Mobility Data (the “Mobility Data”), in order for Populus to provide Mobility Manager Services to Customer. The scope of the Mobility Data and Mobility Manager Services shall be mutually agreed upon in each written Order by the Parties.
(b) Access to Mobility Data. On or as soon as reasonably practicable after the Effective Date, Customer shall provide Populus with access the Mobility Data in a format mutually agreed upon by the Parties. Populus shall use commercially reasonable efforts to prevent unauthorized access or use of the Mobility Data and notify Customer promptly of any such unauthorized access or use known to Populus.
(c) Restrictions. Without limiting the terms of Section 2(a), Populus will not, directly or indirectly: (i) rent, lease, distribute, sublicense, or loan the Mobility Data to any third party; (ii) permit any third party to access and/or use the Mobility Data; (iii) reverse engineer, disassemble, decompile, reverse compile, or create any derivative work from any part of the Mobility Data, except as expressly permitted herein; (iv) publish, reproduce, copy, or excerpt the Mobility Data in Populus’ external communications, including but not limited to its products, services, presentations, publications, posters, abstracts or other materials intended for external audiences (“External Materials”), except as provided for in Section 2(e); or (v) otherwise use the Mobility Data in any manner prohibited by the Agreement. Populus agrees to use the Data only in accordance with all applicable federal, state, or local laws, regulations and orders (“Laws”).
(d) Populus may disclose the Mobility Data to only those employees, contractors or consultants of Populus who have a reasonable need to access or use the Mobility Data in connection with the purposes set forth (“Populus Authorized Users”).
(e) Populus nor any Populus Authorized User shall have the right to disclose, publish, reproduce, copy, display or excerpt the Mobility Data in Populus’ External Materials without Customer’s prior, written approval. Customer approval, if any is given, may be conditioned.
3. Ownership. Except as expressly set forth in this Agreement, Populus, and its licensors, retains all right, title and interest in and to the Terminal Services, and all intellectual property rights therein. Nothing in this Agreement shall be construed as granting to Customer or any Authorized User any rights in or to the Terminal Services, except for the limited access and use rights set forth herein. Populus reserves all rights not expressly granted to Customer under this Agreement. In the event Customer acquires any ownership rights, title or interest in or to the Terminal Services, Customer shall and hereby does assign to Populus, Customer’s entire right, title and interest to the Terminal Services, including all intellectual property rights therein.
4. Fees and Payment. Customer agrees to pay Populus any fees as mutually agreed upon in each written Order by the Parties (“License Fees”). All payments must be made in U.S. dollars. All payment obligations are non-cancelable, and all amounts paid are non-refundable. The License Fees exclude all applicable Sales Tax (defined below). If any Terminal Services data, or payments for any Terminal Services data, under this Agreement are subject to Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to Populus, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and Customer will indemnify Populus for any liability or expense Populus may incur in connection with such Sales Taxes. Upon Populus’ request, Customer will provide Populus with official receipts issued by the appropriate taxing authority, or other such evidence that Customer has paid all applicable taxes. “Sales Tax” means any sales or use tax, and any other tax measured by sales proceeds that Populus is permitted to pass to Customer that is the functional equivalent of a sales tax, where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
5. Confidential Information
(a) Confidential Information. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (i) the Terminal Services and any data contained therein; (ii) the Mobility Data, including any raw or processed data; (iii) the terms of this Agreement including all Orders and pricing thereto; and (iv) the Disclosing Party’s strategic roadmaps, product plans, product designs and architecture, technology and technical information, security processes, security audit reviews, business and marketing plans, and business processes.
(b) Exceptions. Confidential Information will not include information that as shown by the Receiving Party’s records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
(c) Protection of Confidential Information. The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (i) to exercise its rights and perform its obligations under this Agreement; or (ii) as otherwise required by law.
6. Term and Termination
(a) Term. This Agreement will commence as of the date Customer accepts this Agreement (as described in the preamble) and will continue until each Order has expired hereunder, unless earlier terminated by either Customer or Populus as set forth herein (the “Term”).
(b) Termination for Breach. Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches the Agreement and thereafter has failed to cure such material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party) within thirty (30) days after receiving written notice thereof.
(c) Effect of Termination. Upon expiration or termination, Customer (including all its Authorized Users) shall promptly discontinue use of the Terminal Services. Populus shall immediately stop all work related to the applicable Order and Customer shall pay Populus the applicable fees for any services actually completed in accordance with this Agreement and the applicable Order, together with all actual, non-mitigatable expenses reasonably incurred by Populus in accordance with Section 4 (Fees and Payment).
(d) In the event of expiration or any termination of this Agreement, the following Sections shall survive: 1(d)–1(f); 2(b)– 2(e); 3; 4 (for unpaid fees due); 5, 6(c)-(d); 7; 8; and 9.
7. Warranties; Disclaimer. Each party represents and warrants that it is a validly organized business entity under the laws of the state of its incorporation, and that it is in good standing in all jurisdictions where it conducts business. In addition, Populus represents and warrants that it has the right to grant Customer a license to the Terminal Services and Customer represents and warrants that it has the right to provide Populus the Mobility Data provided in this Agreement; provided, however, that Customer’s sole remedy with respect to breach of the foregoing warranty are the remedies provided in Section 7(a) of this Agreement. THE TERMINAL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Populus DOES NOT WARRANT THAT THE TERMINAL SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE TERMINAL SERVICES WILL BE ACCURATE OR COMPLETE. Populus HEREBY DISCLAIMs ANY AND ALL LIABILITY ON ACCOUNT THEREOF.
8. Limitation of Liability
(a) IN NO EVENT WILL Populus BE LIABLE TO Customer FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THIS AGREEMENT, THE TERMINAL SERVICES, ANY OTHER DATA OR PRODUCT, SERVICE OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF Populus HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Populus WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
(b) THE TOTAL CUMULATIVE LIABILITY OF Populus ARISING FROM OR RELATING TO THIS AGREEMENT, THE TERMINAL SERVICES, ANY OTHER DATA oR PRODUCT, SERVICE OR CONTENT PROVIDED HEREUNDER WILL NOT EXCEED THE AMOUNT OF FEES PAID TO Populus BY Customer UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. Customer ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT Populus WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. Customer AGREES THAT Populus’S SUPPLIERS AND LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THIS AGREEMENT.
(a) Governing Law; Venue. This Agreement, and any claim, dispute or controversy of whatever nature arising out of or relating to this Agreement, will be governed by the laws of California, without giving effect to any conflicts of laws principles that require the application of the laws of a different jurisdiction. Any action or proceeding arising from this Agreement must be brought in the state or federal courts located in San Francisco County, California. Each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
(b) Assignment. Neither Party may assign, delegate, or otherwise transfer (by operation of law or otherwise) this Agreement or any of its rights or obligations to a third party without the other Party’s written consent, except that Populus may assign or transfer this Agreement without such consent as a consequence of a merger, acquisition, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment or transfer in violation of the foregoing will be null and void. Subject to all of the terms and conditions hereof, this Agreement inures to the benefit of and is binding upon the Parties hereto and their successors and assigns
(c) Miscellaneous. Except as otherwise expressly specified in this Agreement, the rights and remedies provided to each Party in this Agreement are cumulative and in addition to any other rights and remedies available to such Party at law or in equity. Customer acknowledges and agrees that any actual or threatened breach by it of any confidentiality obligations or license restrictions will constitute irreparable harm for which monetary damages would be an inadequate remedy, and that in such event Populus shall be entitled to obtain immediate injunctive relief to protect its rights under this Agreement. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Populus, or any products utilizing such data, in violation of the United States export laws or regulations. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is 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 will continue in full force and effect. Where Populus requires that Customer provide an e-mail address, Customer is responsible for providing Populus with its most current e-mail address. In the event that the last e-mail address Customer provided to Populus is not valid, or for any reason is not capable of delivering to Customer any notices required/ permitted by this Agreement, Populus’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Customer may give notice to Populus at the following address: 5758 Geary Boulevard, San Francisco, CA 94121. Such notice shall be deemed given when received by Populus by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address. This Agreement and any exhibits, attachments, and schedules attached hereto constitute the final, complete, and exclusive agreement between the Parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communication, whether written or oral. In the event of any conflict or inconsistency between the terms of this Agreement and the terms of any exhibit, attachments, or schedules hereto, the terms of this Agreement will govern unless the exhibit, attachment, or schedule expressly refers to the provision of this Agreement over which it will prevail. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.