Station 70, Inc.
PLEASE READ THIS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY STATION 70 INC. (“STATION70”). BY ACCEPTING THIS EULA, CLICKING A BOX INDICATING ACCEPTANCE, EXECUTING AN ORDER FORM THAT REFERENCES THIS EULA OR OTHERWISE USING STATION70’S SOLUTION, YOU (“CUSTOMER”) AGREE TO BE BOUND BY THIS EULA (TOGETHER WITH STATION70’S PRIVACY POLICY AS MAY BE UPDATED OR AMENDED FROM TIME TO TIME, WHICH IS HEREBY INCORPORATED BY REFERENCE, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS EXCEPT THOSE OTHER TERMS EXECUTED BETWEEN CUSTOMER AND PARTNER (DEFINED BELOW) SOLELY TO THE EXTENT RELATED TO THIS AGREEMENT AND IN THE EVENT OF A CONFLICT BETWEEN SUCH OTHER TERMS WITH PARTNER AND THE TERMS OF THIS AGREEMENT, THIS AGREEMENT’S TERMS SHALL GOVERN. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IF CUSTOMER DOES NOT AGREE TO ALL OF THIS AGREEMENT DO NOT USE OR ACCESS THE SOLUTION.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOLUTION.
1. Order Forms. This Agreement may be implemented through one or more mutually executed order forms for the Solution signed by Station70 or the agents of a third-party reseller of the Solution (defined below) authorized by Station70 to enter into a written agreement with Customer with respect to the Solution (defined below) (“Partner”) and Customer, each of which will incorporate the terms and conditions of and be deemed to be a part of this Agreement (each, an “Order Form”).
2. Solution. Subject to Customer’s compliance with this Agreement, Station70 grants Customer a nonexclusive, revocable, limited, nonsublicensable, nontransferable right and license to access and use Station70’s digital asset key backup and recovery solution (the “Solution”) during the term of this Agreement for the internal business purposes of Customer, only as provided herein and only in accordance with Station70’s applicable official user documentation for the Solution. Customer shall be responsible for the acts or omissions of any person who accesses the Solution using the access procedures provided to or created by Customer. Station70 shall use commercially reasonable efforts to provide the Solution in material accordance with the Service Level Agreement available [here].
3. Updates; Modifications. From time to time, Station70 may provide upgrades, patches, enhancements, or fixes for the Solution to its customers generally without additional charge (“Updates”), and such Updates will become part of the Solution and subject to the terms of this Agreement; provided that, Station70 shall have no obligation under this Agreement or otherwise to provide any such Updates. Station70 reserves the right to modify, discontinue, or cease supporting old versions or releases of the Solution at any time in its sole discretion; provided that, in each case, Station70 shall use commercially reasonable efforts to give Customer reasonable prior notice of such change.
4. Ownership; Feedback. As between the parties, Station70 retains all right, title, and interest in and to the Solution and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Station70 for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. All suggestions, comments, input, information or other feedback provided by Customer to Station70 hereunder (collectively, “Feedback”), will be the property of Station70 and Customer shall and hereby does assign any rights in such Feedback to Station70. Customer agrees to assist Station70 in obtaining intellectual property protection for such Feedback, as Station70 may reasonably request. Nothing in this Agreement will impair Station70’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
5. Customer Data; Aggregate Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer in the course of using the Solution. Notwithstanding anything to the contrary, Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer hereby grants to Station70 a worldwide, non-exclusive, royalty-free license during the term of this Agreement to use, copy, access, process, reproduce, perform, display, modify, distribute, transmit, operate, maintain and prepare derivative works of Customer Data for the purposes of providing the Solution to Customer. Customer agrees that Station70 is free to disclose aggregate measures of usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Solution hereunder (“General Knowledge”). Additionally, Customer hereby grants to Station70 a perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, transferable irrevocable right and license to access, use, retain, reproduce, distribute, display, store, copy, create derivatives and otherwise modify and exploit Customer Data solely (i) to create anonymized compilations and analyses of Customer Data that is combined with data from numerous other customers (“Aggregate Data”), (ii) to create reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data (“Analyses”) and (iii) to create, develop, enhance algorithms, machine learning and other generally available tools in connection with the Solution using anonymous Customer Data. As between the parties, Station70 shall own all rights in and have the right to use such Aggregate Data and Analyses and any derivative works prepared therefrom, for any purpose, including, but not limited to product improvement and marketing to other customers of the Solution; provided, however, that Station70 shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Customer Data.
6. Fees. Customer shall pay all applicable fees for access and use of the Solution (“Fees”) as set forth on an Order Form. Unless otherwise provided for on an applicable Order Form mutually executed between Customer and a Partner (each “Partner Order Form”), the parties acknowledge and agree that payment(s) for the Solution governed by such Partner Order Form shall be remitted by Customer to Partner, and such payment(s) shall satisfy any payment obligations hereunder. Except as expressly set forth in this Agreement, the Fees payable to Station70 (or to Partner in accordance with each Partner Order Form) are non-refundable and not subject to set-off.
7. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) sell or re-sell the Solution to a third party; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Solution (except to the extent applicable laws specifically prohibit such restriction); (iii) modify, translate, or create derivative works based on the Solution; (iv) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Solution; (v) remove or otherwise alter any proprietary notices or labels from the Solution or any portion thereof; (vi) use the Solution to build an application, service, product or other offering that is competitive with any Station70 product or service; (vii) interfere or attempt to interfere with the proper working of the Solution or any activities conducted on the Solution; or (viii) bypass any measures Station70 may use to prevent or restrict access to the Solution (or other accounts, computer systems or networks connected to the Solution).
8.Third Party Services. Customer acknowledges and agrees that the Solution may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”), including, without limitation, those provided by Partner or through integrations or connectors to such Third Party Services that are provided by Station70. Station70 is not responsible for the operation of any Third Party Services nor the availability or operation of the Solution to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Station70 does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.
9. Term and Termination. This Agreement shall commence on the date that Customer accepts this Agreement or first uses the Solution, whichever comes first, and shall continue until terminated by either party at any time. Upon termination of this Agreement, Customer’s access to the Solution shall immediately cease and all licenses granted to Customer hereunder shall immediately terminate. All terms of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations (if applicable), ownership provisions, warranty disclaimers, indemnity and limitations of liability.
10. Representations and Warranties. Customer represents and warrants to Station70 that: (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound; (v) it shall use the Solution in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Solution (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws); and (vi) it shall not use the Solution in a manner that violates any third party intellectual property, contractual or other proprietary rights.
11. Confidentiality. Each party agrees that the business, technical and financial information, that is designated in writing as confidential, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed, shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information does not include information that (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) is or becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, the receiving party will hold in confidence and not use or disclose any Confidential Information and shall similarly bind its employees, consultants, and independent contractors. Upon the disclosing party’s request, all of the Confidential Information (including any copies) will be returned to the disclosing party, and the receiving party will make no further use of such materials. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The parties acknowledge and agree that there can be no adequate remedy at law for any breach of such party’s obligations under this Section 11, which breach may result in irreparable harm to the non-breaching party, and therefore, that upon any such breach or any threat thereof, the non-breaching party shall be entitled to appropriate equitable relief, without the requirement of posting a bond, in addition to whatever remedies it might have at law.
12. Indemnification. Customer shall defend, indemnify, and hold harmless Station70, Partner, their affiliates and each of the foregoing entities’ employees, agents, partners, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) that arise from or relate to (i) Customer’s use of the Solution; (ii) Customer’s violation of this Agreement; (iii) Customer’s violation of any applicable law, rule or regulation; (iv) Customer’s violation of any other party’s rights, including without limitation any privacy or intellectual property rights (including any claim of infringement or misappropriation of third-party intellectual property or proprietary rights relating to Customer’s use of the Solution); or (v) the Customer Data (except to the extent such claim would not have arisen but for Station70’s use of the Customer Data in a manner not permitted under the Agreement).
13. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLUTION AND ALL RELATED INFORMATION, RECOMMENDATIONS, TECHNOLOGY, AND SERVICES PROVIDED BY OR ON BEHALF OF STATION70 ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, COMPLETENESS AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, STATION70 DOES NOT WARRANT THAT ACCESS TO THE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SOLUTION WILL MEET CUSTOMER’S NEEDS OR EXPECTATIONS, OR THAT DATA WILL NOT BE LOST, OR THAT THE SOLUTION IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14. Limitation of Liability. IN NO EVENT SHALL EITHER STATION70 PARTNER, EACH OF THEIR AFFILIATES AND EACH OF THE FOREGOING ENTITIES’ EMPLOYEES, AGENTS, PARTNERS, CONTRACTORS, DIRECTORS, SUPPLIERS OR REPRESENTATIVES, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE SOLUTION IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
15. Miscellaneous. This Agreement represents the entire agreement between Customer and Station70 with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Station70 with respect thereto. Station70 reserves the right to amend, modify or change this Agreement at any time and will use commercially reasonable efforts to notify Customer of the same. If Customer uses the Solution in any way after such changes are effective, then the Customer will be deemed to have agreed to all of the changes. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of Delaware. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by e-mail. Customer hereby grants Station70 a non-exclusive license to include Customer’s name and standard logo within lists of customers utilizing Company’s services including, without limitation, on Company’s public-facing website and in the Company’s other business, marketing and promotional materials. Station70 shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Station70’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Customer may not assign any of its rights or obligations hereunder without Station70’s consent. Station70 may freely transfer, assign or delegate this Agreement and its rights and obligations thereunder without consent. Any purported transfer or assignment in violation of the foregoing is void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.