Main Service Agreement
This MAIN SERVICE AGREEMENT (the “Agreement”) is entered into by and between Customer and Sigma Computing, Inc., a Delaware corporation with offices at 116 Montgomery St., #1500, San Francisco CA, 94105 (“Sigma”). For the purposes of this Agreement, “Customer” means the party identified as the customer in the applicable Order Form (as defined in Section 1.2 below). By executing an Order Form that references this Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. This Agreement governs all Order Forms, and any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The Service.
1.1. Service Description. Sigma is the owner and provider of a cloud-based intelligence tool and service that is designed to allow customers to analyze data (the “Service”) within Customer’s own or a third-party controlled data warehouse (“Data Warehouse”). Any data within the Data Warehouse that is provided to Sigma in the course ofCustomer using the Service will be deemed “Customer Data.” Customer will not receive or have access to the code or software that underlies the Service (collectively the “Software”) or receive a copy of the Software itself.
1.2. Customer’s Subscription. Subject to the terms of this Agreement, Customer may purchase a subscription to, and has the right to access and use, the Service as specified in one or more ordering documents executed by the parties (or Customer and a Reseller) that reference this Agreement and describe the business terms related toCustomer’s subscription (“Order Form(s)”). Sigma also grants Customer (including Authorized Users) a limited, non-sublicensable, non-transferable right and license to access, download, and use, solely for Customer’s internal business purposes, the technical documentation regarding the Service that Sigma publishes to all its customers(“Documentation”). All subscriptions will be for the period described on the applicable Order Form (“Subscription Period”). Use of and access to the Service is permitted only by individuals authorized by Customer and, except as specifically permitted otherwise in the Section 1.3 (Embedding) below, for Customer’s own internal business purposes and not for the benefit of any third party (“Authorized Users”). Customer may also permit its affiliates and their employees and contractors working for the benefit of Customer or such affiliates to serve as Authorized Users, provided Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement. An “affiliate” of a party is any entity controlling, controlled by or under common control with such party; where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
1.3. Embedding. The Service may also be used to create dashboards that access and analyze Customer Data that are then embedded into Customer’s own proprietary services (“Dashboard(s)”) and accessed and used by Customer’s customers (“Customer’s End User(s)”) (collectively, Authorized Users and Customer’s End Users are “Users”). The feature within the Service that will allow the Customer to create Dashboards is the “Application Embedding Feature.” An applicable Order Form may state further limitations or features of the Application Embedding Feature that Customer and its Users may utilize, however, only Customer is permitted to integrate the Service with Customer’s own Data Warehouse(s). Customer Data will also include any data within the Data Warehouse that is provided to Customer by Customer’s End Users. Customer is also responsible for managing its and its Users’ access to the Service. Further, as Customer will maintain a direct relationship with Customer’s End Users, Customer agrees that it will only allow Customer’s End Users to access or use the Dashboards upon entering written terms with Customer’s End Users that are just as protective of Sigma as the terms of this Agreement. Customer understands and agrees that this Agreement does not create a resale relationship between the parties and as such Customer is not permitted to charge Users to access or use the Dashboards specifically; moreover, Dashboards may only be provided to Customer’s End Users as part of Customer’s proprietary services and may not be offered by Customer as a stand-alone product.
1.4. Support and Service Level Policy. Sigma will make commercially reasonable efforts to provide basic technical support for the Service (“Support Services”) in accordance with its support and service level policy, which is located at Sigma_Computing_Exhibit_A_May_2023.pdf (“Support and Service Level Policy”).
1.5. Provisioning. As part of the registration process, a single administrative User will receive login credentials from Sigma following execution of the applicable Order Form; such User will have the capability to invite any other Users to create accounts on the Service. Sigma may access Customer’s account solely (i) to respond to technical problems, (ii) to provide and maintain the Service, (iii) at Customer’s request, and (iv) to comply with legal or contractual requirements. Each User will be identified by unique subscription access rights (which are also known as login credentials); such login credentials may only be used by one individual and may not be shared among multiple individuals. Login credentials may only be reassigned to a new User replacing a person who no longer requires access to the Service. Customer will not reassign login credentials between Users so frequently that it enables a single subscription to be shared between multiple Users.
1.6. Use Restrictions and Responsibilities. Customer is responsible for all activity on its Users’ accounts unlesssuch activity is caused by a third party bad actor able to access Customer’s account by exploiting vulnerabilities in the Service itself. Customer will ensure that its Users are aware of and bound by obligations and/or restrictions stated in this Agreement and Customer will be responsible for breach of any such obligation and/or restriction by a User. Customer also agrees that it will not, and will not allow Users or third parties to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Service, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as specifically permitted under Section 1.3 (Embedding) above, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Sigma branding contained in or on the Service, (e) use the Service in any way that violates any applicable federal, state, local or international law or regulation, including but not limited to CANSPAM, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Service, including, without limitation, by introducing viruses and other harmful code or by using flood pings, denial-of-service attacks, or similar methods or technology, (g) use or access the Service to build or Csupport and/or assist a third party in building or supporting products or services competitive to the Service, (h) attempt to probe, scan, or test the vulnerability of the Service or any Sigma system or networks, or (i) use the Service to send messages that are hateful, libelous, obscene, harassing or otherwise violate federal, state, local or international law or regulation. If Customer (including Users) is using the Service in a manner that, in Sigma’s reasonable judgment, causes or is likely to cause significant harm to Sigma or the Service or otherwise threatens the security, integrity or availability of the Service then Sigma may suspend Customer’s access to the Service. Sigma will use commercially reasonable efforts under the circumstances of such suspension to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) limit the suspension to only accounts involved in the activities in question; and (z) remove the suspension as quickly as practicable after the circumstances leading to the suspension have been resolved.
1.7. Sigma’s Ownership. Sigma owns the Service, including the Dashboards and Application Embedding Feature, and the Documentation (collectively the “Sigma Materials”). Sigma retains all right, title, and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Sigma Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly granted to Customer in this Agreement are expressly reserved by Sigma. Customer’s ownership of the Customer Data is stated below in Section 6.2.
2. Third-Party Applications.
The Service may work together with third party products, services or applicationsthat are not owned or controlled by Sigma, (e.g., Customer’s Data Warehouse provider) (“Third-Party Applications”) and Customer, at its sole option, may choose to use such Third-Party Applications. If necessary for the Service and the Third-Party Application to work together, Customer will provide its login information to Sigma for the sole purpose of Sigma providing the Service to Customer and Customer represents and warrants that Customer has the right to provide such login information without breach by Customer of any of the terms and conditions that govern Customer’s use of the applicable Third-Party Application. Sigma does not endorse such Third-Party Applications. Customer acknowledges and agrees that this Agreement does not apply to Customer’s use of such Third-Party Applications and Customer be required by the providers of such Third-Party Applications to enter into separate agreements for Customer’s use. SIGMA EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES RELATING TO ANY THIRD-PARTY APPLICATIONS. CUSTOMER WILL LOOK SOLELY TO THE PROVIDERS OF THE THIRD-PARTY APPLICATIONS FOR ANY WARRANTY RELATED ISSUES OR OTHER CLAIMS RELATED THERETO. CUSTOMER’S USE OF THIRD-PARTY APPLICATIONS IS AT CUSTOMER’S OWN RISK. SIGMA WILL HAVE NO LIABILITY OR OTHER OBLIGATION OF ANY KIND ARISING OUT OF OR RELATED TO ANY THIRD-PARTY APPLICATIONS, INCLUDING ARISING FROM CUSTOMER’S USE OR INABILITY TO USE THIRD-PARTY APPLICATIONS.
3. Payment Obligations.
3.1. Fees. Customer will pay for access to and use of the Service as set forth on the applicable Order Form (“Fees”). All Fees will be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. Sigma may modify its Fees or introduce new fees, however, any new or revised fees will not take effect during Customer’s then-current Subscription Period and will only be effective if the parties choose to enter into an Order Form for a new Subscription Period. Customer always has the right to choose not tore new its subscription or enter into an Order Form for a new Subscription Period if it does not agree with any new or revised fees.
3.2. Payment. Sigma will invoice Customer for the Fees and any other applicable fees charged by third parties onCustomer’s payment (e.g. bank transfer fees that are) in accordance with the Order Form. Customer agrees to pay all invoices submitted in accordance with this Agreement within thirty (30) days after receipt of Sigma’s invoice, unless another time period is stated on the Order Form. All information that Customer provides in connection with a purchase or transaction or other monetary transaction with the Service must be accurate, complete, and current. If Customer has executed an Order Form with a Reseller, Customer will pay such Reseller (and not Sigma) in accordance with the terms of such Order Form. Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Order Form, Sigma will have the right to suspend Customer’s right to use and access the Service and to terminate this Agreement upon notice to Customer. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Sigma to resell the Service.
3.3. Taxes. Fees stated on the Order Form are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Sigma’s net income.
3.4. Failure to Pay. If Customer fails to pay any undisputed invoices in accordance with this “Payment Obligations” section, Sigma may, provided that Sigma gives Customer written notice of such non-payment and ten(10) days from the date of such notice to remit the overdue, undisputed amounts in full: (a) suspend Customer’s access to the Service pending payment of such overdue invoices; and (b) charge a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes that Sigma has billed Customer incorrectly, Customer must contact Sigma no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Once Sigma receives notice of a disputed invoice, Sigma will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If Sigma reasonably determines that the amounts charged on a disputed invoice are, in fact, due, Customer will pay such amounts within ten (10) days of Sigma notifying Customer in writing of such decision.
3.5. Adding Users. Users that are given administrative permission by Customer may add new Users at any timethrough the Service. Upon adding additional Authorized User(s), Sigma will contact Customer in writing to discussCustomer’s options. Customer will have thirty (30) days after receipt of Sigma’s written notice to Customer regarding the over-deployment to either (a) purchase a pro-rata subscription for such User(s) at the same price stated on the applicable, then-current Order Form by executing a new Order Form with Sigma, or (b) discontinue use of the over-deployed User seats. If, within such thirty (30) day period, Customer does not either execute a new Order Form for such additional Authorized Users or discontinue use of over-deployed Authorized User seats, Customer will be invoiced the current list price for those Users for the remainder of the then-current Subscription Period and be required to pay such invoices in accordance with this Agreement. As Sigma is a subscription services provider, the number of Users purchased under an Order Form cannot be decreased during the Subscription Period.
4. Term and Termination
4.1. Agreement Term. Subscriptions to access and use the Service commence on the start date stated on the applicable Order Form (“Subscription Start Date”) and continue for the duration of the Subscription Period. ThisAgreement will become effective on the date the first Order Form entered into by the parties is executed and remain effective for the duration of the Subscription Period set forth on any Order Forms.
4.2. Termination for Cause. Either party may terminate this Agreement upon written notice to the other party ifthe other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the breaching party’s receipt of such notice.
4.3. Effect of Termination. If Customer terminates this Agreement because of Sigma’s uncured breach, Sigma will refund any unused, prepaid Fees for the remainder of the then-current Subscription Period. If Sigma terminates this Agreement because of Customer’s uncured breach, Customer will pay any unpaid Fees covering the remainder of the then-current Subscription Period after the effective date of termination, if any. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Sigma for the period prior to the effective date of termination. Upon any termination of this Agreement, all rights and licenses granted by Sigma hereunder will immediately terminate; Customer will no longer have the right to access or use the Service. Within 30 days of any termination or expiration, Sigma will delete Customer’s User Information, including passwords and all related information, files, and Customer Data, unless Customer requests an earlier deletion in writing.
4.4. Survival. Sections 1.7 (Sigma’s Ownership), 2 (Third-Party Applications), 3 (Payment Obligations), 4 (Term and Termination), 7.2 (Warranty Disclaimer), 9 (Limitation of Liability), 8 (Indemnification), 5 (Confidentiality), 6(Data), and 10 (General Terms) will survive any termination or expiration of this Agreement.
5.1. Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Sigma’s Confidential Information includes non-public information regarding features, functionality, and performance of the Service. Customer’s Confidential Information includes the User Information and Customer Data. This Agreement and the information in all Order Forms will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
5.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, Subprocessors (as described in the Data Processing Addendum referenced below), agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, make all commercially reasonable efforts not to disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing the terms of this Agreement or the name of the other party with prospective investors or acquirers; provided, however, that the foregoing persons or entities are bound to standard confidentiality obligations.
5.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at theDisclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
5.4. Feedback. Customer may from time to time provide suggestions, comments, or other feedback with respect to the Service (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to Sigma specifically regarding the Service and will not include User Information or Customer Data. Sigma may want to incorporate Feedback into its Service and this clause provides Sigma with the necessary license to do so. Customer hereby grants to Sigma and Sigma’s assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicensable right and license, if any, to use, disclose, reproduce, modify, create derivative works from, distribute, display, and otherwise distribute and exploit any Feedback as Sigma sees fit, entirely without obligation or restriction of any kind, except that Sigma will not identify Customer as the provider of such Feedback.
6.1. User Information. Customer and its Users are required to provide information such as IP address, username, password, and any personally identifiable information including, without limitation, name, phone number, or email address (“User Information”) upon logging into the Service in order to access the Service. Customer grants Sigma and its subcontractors the right to store, process and retrieve the User Information in connection with Customer’s use of the Service. Customer represents and warrants that it has obtained all necessary rights to transfer User Information to Sigma and to process the User Information as contemplated by this Agreement. Customer is responsible for all User Information. Accordingly, Customer is responsible for all resulting liability if usernames, passwords, tokens, or keys in Customer’s possession are used by any party not authorized to do so. Customer (on behalf of its Users) grants Sigma the right to access, use, process, copy, distribute (to Users), perform (for Users), export (to Users) and display (for Users) User Information, only as reasonably necessary (a) to provide the Service to Customer (including the transfer of User Information to Sigma); (b) to prevent or address service, security, support, or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.
6.2. Customer Data. No data within the Data Warehouse is stored or cached within the Service. Sigma’s personnel will only access the Customer Data if specifically permitted by Customer; the parties anticipate that such access will only be for the purpose of providing Support Services to Customer. To the extent that Customer Data is shared with Sigma, Customer grants Sigma a limited, revocable, non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to use, process and display such Customer Data for the sole purpose of providing the Service to Customer. Except for the limited rights and licenses granted in this Agreement, Customer will own all right, title and interest in and to the Customer Data and there are no implied licenses under this Agreement.
6.3. Service Data. As Customer (including its Users) interacts with the Service the Service collects data pertaining to the performance of the Service and measures of the operation of the Service (“Service Data”). Not withstanding anything else to the contrary herein, provided that the Service Data is aggregated and anonymized, and no UserInformation, Customer Data, or any other personal identifying information of Customer is revealed to any third party, the parties agree that Sigma is free to use the Service Data in any manner. Sigma owns all right, title, and interest in and to such Service Data. For clarity, this section does not give Sigma the right to identify Customer (including its Users) as the source of any Service Data.
6.4. Data Processing Addendum. Sigma will process any User Information and Customer Data that Customer provides to Sigma in accordance with the data security policy, which is located at Sigma_Computing_Exhibit_B_May_2023.pdf (“Security Addendum”) and the data processing addendum referencing this Agreement, if separately executed by the parties Sigma_Data_Processing_Addendum_2023.pdf (“Data Processing Addendum”). If there is a conflict between this Agreement and the Data Processing Addendum, the Data Processing Addendum will prevail.
7. Warranties and Disclaimers.
7.1. Sigma Warranties. Sigma represents and warrants that (a) it will comply with all applicable federal, state and local United States laws and regulations with respect to its business operations under this Agreement and all applicable United States and European Union laws with respect to its processing and use of Customer Data and User Information (“Applicable Laws”); (b) the Service will substantially comply in all material respects with theDocumentation, (c) it will provide the Support Service in a professional and workmanlike manner, (d) it has used commercially reasonable efforts to ensure that the software underlying the Service and the environment used for the Service contain no Malicious Code, and (e) it uses commercially reasonable efforts to prevent the introduction of Malicious Code into the software underlying the Service and the environment used for the Service. For purposes of the Agreement, “Malicious Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data in a manner not intended by the computer, system, or network, or in some other fashion disrupt the normal operation of a computer, system or network. If the Service is not provided in accordance with the above warranty, Customer will promptly notify Sigma and Sigma will make commercially reasonable efforts to rectify such non-compliance; if Sigma is not able to so modify or otherwise fix the Service, Sigma will terminate this Agreement and refund any unused pre-paid Fees to Customer. The foregoing remedy is Customer’s sole remedy and Sigma’s sole liability if Sigma breaches the terms of subsection (b) and (c) above.
7.2. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SIGMA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT SIGMA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8.1. Sigma’s Indemnification. Sigma will defend Customer and its Users, officers, directors, and employees against any third-party claim or action brought against Customer to the extent based on (i) the allegation that theService infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), (ii) Sigma’s gross negligence or willful misconduct, or (iii) Sigma’s violation of Applicable Laws, and in each case Sigma agrees to pay any settlements with respect to the foregoing indemnification obligations that Sigma agrees to in a writing signed by Sigma’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to the Service or portions or components of the Services that are (a) not provided by Sigma, (b) combined with other products (including Customer’s services), processes or materials that are not reasonably contemplated by Sigma or the Documentation, or (c) where Customer’s use of the Service is not in accordance with this Agreement or the Documentation.
8.2. Customer’s Indemnification. Customer will defend Sigma and its officers, directors, and employees against any third-party claim or action brought against Sigma based on (i) the allegation that the Customer Data infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), (ii) Customer’s breach of Section 1.3 (Embedding) above, (iii) a claim brought by an End User against Sigma, (iv) Customer’s gross negligence or willful misconduct, or (v) Customer’s violation of Section 1.6(e) (regarding compliance with applicable law), and in each case Customer agrees to pay any settlements with respect to the foregoing indemnification obligations that Sigma agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.
8.3. Procedures. Each party’s obligations under this Section 8 (Indemnification) are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of any claim (provided that the indemnified party’s failure to provide reasonable written notice shall only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party ability to defend or settle such claim), (b) granting the indemnifying party the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense. Notwithstanding anything else to the contrary in this Agreement, any obligation of indemnifying party to defend, indemnify and hold the other party harmless hereunder is limited to indemnifying party payment for the cost of defense of the third-party claim incurred by the indemnifying party and the payment of (i) any settlements agreed to by the indemnifying party in a writing signed by an officer of the indemnifying party, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction.
8.4. Options. If Customer’s use of the Service has become, or in Sigma’s opinion is likely to become, the subject of any claim of infringement, Sigma may at its option and expense, (a) procure for Customer the right to continue using and receiving the Service as set forth hereunder, (b) modify the Service to make it non-infringing (but containing substantially equivalent functionality), (c) substitute an equivalent for the Service or (d) if Sigma, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer any pre-paid, unused Fees for the remainder of the then-current Subscription Period.
8.5. Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 8 (Indemnification) STATES EACH PARTY’S ENTIRE RESPONSIBILITY AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
9. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR(I) CUSTOMER’S OBLIGATIONS UNDER OR BREACH SECTION 1.6 (USE RESTRICTIONS AND RESPONSIBILITIES), (II) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY), (III) A PARTY’S OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION), OR (IV) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICE THAT IS OR THE PROFESSIONAL SERVICES THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. General Terms.
10.1. Publicity. Provided that Customer gives its prior, written consent, Sigma may identify Customer and use and display Customer’s name, logo, trademarks, or service marks on Sigma’s website and in Sigma’s marketing materials, including without limitation press releases, announcing Customer, why Customer chose Sigma, and how Customer will use Sigma. Customer will be given the opportunity to provide input and feedback on the press release, as well as a quote, prior to distribution. Customer will consider participating in a case study, webinar, and other joint marketing activities six to nine months post deployment.
10.2. Force Majeure. Neither Sigma nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party that make it impossible or commercially impracticable for such party to perform its obligations hereunder, which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of the party failing to perform), shortages, riots, fires, acts of God, war, terrorism, and governmental action.
10.3. Changes. Customer acknowledges that the Service is an on-line, subscription-based product, and that to provide improved customer experience Sigma may make changes to the Service provided, however Sigma will not materially decrease the core functionality of the Service. The Service Level Policy, Data Processing Addendum, andSecurity Addendum may be modified from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; however, Sigma agrees that except as required by law, any such modifications will not materially decrease Sigma’s obligations or materially reduce Customer’s rights as compared to those reflected in such terms as of the Subscription Start Date of the first Order Form entered into by the parties.
10.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
10.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not aparty to this Agreement may not enforce any of its terms under any applicable law.
10.6. Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Service will be sent by email, although Sigma may instead choose to provide notice to Customer through theService, (b) notices to Sigma must be sent to firstname.lastname@example.org, and (c) all notices to Customer will be sent to the email(s) provided through the Service. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email, provided that no undeliverable message is received by the sender; and (b) the same day, in the case of notices through the Service.
10.7. Amendment and Waivers. Except as otherwise specifically provided for herein, no modification or
amendment to this Agreement will be effective unless made in writing and signed or accepted by an authorized
representative of both parties. No failure or delay by either party in exercising any right under this Agreement will
constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
10.8. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
10.9. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without the consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all the assigning party’s assets unless (a) Customer has purchased unlimited access to the Service under an Order Form, or (b) the assignment is to a direct competitor of the non-assigning party. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.10. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation, or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
10.11. Entire Agreement. This Agreement, including all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in Customer’s purchase order(s), vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
10.12. Insurance. During the term of this Agreement, Sigma will comply with the insurance requirements stated at Sigma_Computing_Exhibit_C_May_2023.pdf
10.13. Counterparts and Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument. This Agreement may be signed by electronic signature and electronic transmission, including via DocuSign or other similar method.