PLEASE READ THIS PLATFORM TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS WEBSITE AND ANY OTHER WEBSITES OF SIGMA COMPUTING, INC., ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY SIGMA COMPUTING,INC. (“SIGMA COMPUTING”). THIS AGREEMENT GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE BY ACCESS OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE. BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR BROWSING THE WEBSITE, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SIGMA COMPUTING, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF SIGMA COMPUTING YOU HAVE NAMED AS THE USER, AND TO BIND THAT SIGMA COMPUTING TO THE AGREEMENT. THE TERM “YOU” OR “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU USED OUR SERVICES OR REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE AGREEMENT, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
USE OF THE SERVICES. Subject to Customer’s payment of the fees (“Fees”) agreed to in an accepted Order Form, Sigma Computing will provide Customer with access to the Sigma Computing platform (the “Platform”) comprising a cloud-based intelligence tool and service accessible through Sigma Computing’s website (the “Website”) designed to allow Customer to input and analyze data, with an option to share certain outputs of such data with other individuals and partners (collectively, referred to herein as the “Services”).
- Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit any portion of the Services, (b) Customer shall not frame or utilize framing techniques to enclose any trademark or logo (including images, text, page layout or form) of Sigma Computing; (c) Customer shall not use any metatags or other “hidden text” using Sigma Computing’s name or trademarks; (d) Customer shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services (except to the extent the foregoing restrictions are expressly prohibited by applicable law); (e) Customer shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that Sigma Computing grants the operators of public search engines revocable permission to use spiders to copy materials made available through the Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) Customer shall not access the Services in order to build a similar or competitive website, platform or service; (g) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) Customer shall not remove or destroy any copyright notices or other proprietary markings contained on any portion of the Services; and (i) Customer shall not use the Services to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers. Any future release, update or other addition to the Services provided to Customer by Sigma Computing, at its discretion, shall be subject to this Agreement. Sigma Computing, its suppliers and service providers reserve all rights not expressly granted in this Agreement.
- No Hacking. Customer agrees that Customer will not, under any circumstances: (i) Use automation software, bots, hacks, mods or any unauthorized software designed to modify or interfere with the Services; (ii) Interfere with or damage the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (iii) Disrupt, overburden, or aid or assist in the disruption or overburdening of (A) any computer or server used to offer or support the Services, or (B) the enjoyment of the Services by any other person; (iv) Institute, assist, or become involved in any type of attack, including, but not limited to, distribution of a virus, denial-of-service attacks upon the Services, or other attempts to disrupt the Services; (v) Attempt to gain unauthorized access to the Services; (vi) Attempt to probe, scan, or test the vulnerability of any Sigma Computing system or network, or breach any security or authentication measures; (vii) Disrupt or interfere with the security of, or otherwise cause harm to, the Services, systems, resources, accounts, passwords, servers or networks connected to or accessible through the Services or any affiliated or linked sites; or (viii) Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Sigma Computing or any of Sigma Computing’s providers or any other third party to protect the Services.Feedback. Customer acknowledges and agrees that any feedback, comments or suggestions Customer may provide to Sigma Computing regarding Sigma Computing’s current or future products or services is entirely voluntary and Sigma Computing is free to use such feedback, comments or suggestions as Sigma Computing sees fit without restriction and without any obligation or remuneration to Customer. Sigma Computing will not associate Customer with any such feedback, comments or suggestions without Customer’s prior written consent.Marketing. Sigma Computing may not use and display Customer’s name, logo, trademarks, and service marks on Sigma Computing’s website and in Sigma Computing’s marketing materials in connection with identifying Customer as a customer of Sigma Computing without Customer’s prior written consent for each such use or display.
Feedback. Customer acknowledges and agrees that any feedback, comments or suggestions Customer may provide to Sigma Computing regarding Sigma Computing’s current or future products or services is entirely voluntary and Sigma Computing is free to use such feedback, comments or suggestions as Sigma Computing sees fit without restriction and without any obligation or remuneration to Customer. Sigma Computing will not associate Customer with any such feedback, comments or suggestions without Customer’s prior written consent.
Marketing. Sigma Computing may not use and display Customer’s name, logo, trademarks, and service marks on Sigma Computing’s website and in Sigma Computing’s marketing materials in connection with identifying Customer as a customer of Sigma Computing without Customer’s prior written consent for each such use or display.
CONFIDENTIALITY; CUSTOMER ACCOUNT.
Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain non-public information regarding the Disclosing Party’s business, technology, products, or services that is marked or designated by the Disclosing Party as “confidential” or “proprietary” at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure (collectively, “Confidential Information”). Without limiting the generality of the foregoing, the Services, Platform, Software, and all enhancements and improvements thereto constitutes the Confidential Information of Sigma Computing and the Customer Content constitutes the Confidential Information of Customer.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except to provide or use the Services hereunder and as otherwise expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party without use of and who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
Registering Customer’s Account. To use the Services, Customer must register for an account with Sigma Computing (“Account”) and provide certain information about Customer as prompted by the Services registration form. Customer represents and warrants that to the best of its knowledge: (a) all required registration information Customer submits is truthful and accurate; (b) Customer will maintain the accuracy of such information; and (c) Customer’s use of the Services does not violate any applicable law, rule or regulation (e.g., Customer is not located in an embargoed country or are not listed as a prohibited or restricted party). Customer is responsible for maintaining the confidentiality of Customer’s Account login information and is fully responsible for all activities that occur under Customer’s Account. Customer agrees to promptly notify Sigma Computing of any unauthorized use, or suspected unauthorized use, of Customer’s Account or any other breach of security. Sigma Computing cannot and will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Customer shall have no ownership or other property interest in Customer’s Account, and Customer further acknowledges and agrees that all rights in and to Customer’s Account are and shall forever be owned by and inure to the benefit of Sigma Computing.
- Services. Other than Customer Content (as defined below), Customer agrees that the Services, including, without limitation, the trademarks, tradenames, logos, content, works of authorship and other materials therein, are the sole and exclusive property of the Sigma Computing and its licensors.
- Customer Content. As used in this Agreement, “Customer Content” means any content, information, works of authorship, images, videos, data, text or other materials Customer posts, uploads or otherwise makes available on or via the Services, and specifically any data that Customer inputs into the Platform. As between Sigma Computing and Customer, Customer owns and retains all right, title and interest (including all intellectual property rights) in and to the Customer Content. Sigma Computing does not claim ownership of Customer Content. Subject to the terms set forth herein, Customer hereby grants to Sigma Computing a non-exclusive, transferable, sublicensable (through multiple tiers), royalty-free, fully paid-up right and license to reproduce, display, perform, distribute, create derivatives of, digitally transmit and otherwise use Customer Content for the purpose of providing, improving, and/or maintaining the Services. Customer agrees that Sigma Computing will have no liability for Customer’s use or sharing of the Customer Content, or any portion thereof. In the event that Customer chooses to share any Customer Content (e.g., any analysis of the data, data input or output) with any third party including by providing such third party with a link to Customer Content, Customer acknowledges and agrees that (a) Sigma Computing shall have no liability for such use of the Customer Content, and (b) while such third party will be able to view Customer Content that Customer chooses to share with them, the third party will not be able to edit, modify or otherwise change Customer Content. Sigma Computing will maintain appropriate administrative, physical, and technical safeguards in accordance with commercially reasonable industry standards for the protection of the security, confidentiality and integrity of Customer Content, which will include, but will not be limited to measures designed to prevent unauthorized access, use, modification or disclosure of Customer Content.
- HIPAA Data. Customer agrees not to upload to the Services any HIPAA Data (as defined below) unless Customer has entered into a ‘Business Associate Agreement’ (“BAA”) with Sigma Computing. Unless a BAA is in place, Sigma Computing will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. If Customer is permitted to submit HIPAA Data to the Services, then Customer may submit HIPAA Data to Sigma Computing and/or the Services only by uploading it as Customer Content. The mutually executed BAA shall be incorporated by reference into this Agreement and is subject to these terms and conditions. For purposes of this Agreement, “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. “HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
FEES AND EXPENSES.
- Fees. In consideration for the access rights granted to Customer and the Services performed by Sigma Computing under this Agreement, Customer will pay to Sigma Computing the Fees set forth in the applicable Order Form. Sigma Computing shall be entitled to withhold performance and suspend the Services until all amounts due and not subject to a good faith dispute are paid in full.
- Invoices. Except as otherwise provided in an accepted Order Form, Sigma Computing will invoice Customer for the Services monthly, and Customer shall pay invoices within thirty (30) days from the date of invoice.
- Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Sigma Computing’s revenue or income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the license of the Platform to Customer. Customer will make all payments of Fees to Sigma Computing free and clear of, and without reduction for, any withholding taxes.
- Interest; Expenses. Customer shall reimburse Sigma Computing for all costs and expenses that are pre-approved in writing by Customer, if any. All costs and expenses incurred by Customer in connection herewith are the sole responsibility of Customer.
- Indemnification by Customer. Customer agrees to indemnify and hold Sigma Computing, its parents, subsidiaries, affiliates, directors, officers, agents and employees (collectively, the “Sigma Computing Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Customer’s use of, or inability to use the Services; (b) Customer’s violation of Section 1.1 of this Agreement; (c) Customer’s violation of any applicable laws, rules or regulations through or related to Customer’s use of the Services; and (d) Customer’s interaction with any third parties, including but not limited to other users with whom Customer connects through the Services. Sigma Computing reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer, in which event Customer will fully cooperate with Sigma Computing in asserting any available defenses. Customer will not settle any claim without Sigma Computing’s prior written consent. Customer agrees that the provisions in this Section 6 will survive any termination of Customer’s Account, this Agreement or Customer’s access to the Services. This provision does not require Customer to indemnify the Sigma Computing Parties for any gross negligence or willful misconduct by such parties in connection with the Services.
- Indemnification by Sigma Computing. Sigma Computing shall indemnify, defend and hold harmless Customer and its officers, directors, employees, shareholders, agents, successors, and permitted assigns (the “Indemnified Parties”) from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or in connection with any actual or threatened claim, suit, action, or proceeding brought by a third party against any of the Indemnified Parties arising out of or in connection with an allegation that the Website, Platform and/or Services infringes upon or violates the proprietary or intellectual property rights of any third party. If the Website, Platform and/or Services are held to infringe or violate the proprietary or intellectual property rights of a third party, or in Sigma Computing’s reasonable opinion are likely to be held to infringe or violate the same, Sigma Computing shall, at its expense, promptly secure the right for Customer to continue to use the Website, Platform and/or Services or replace or modify the Website, Platform and/or Services to make it non-infringing without any loss of functionality or if neither of the foregoing is commercially reasonably practicable, terminate this Agreement and the licenses granted herein and provide Customer with a refund of any license fees applicable to the period after such termination. The Indemnified Parties shall (a) promptly give Sigma Computing written notice of the claim or proceeding, (b) give Sigma Computing sole control of the defense and settlement of the claim or proceeding (except that Sigma Computing may not settle any claim or proceeding unless it unconditionally releases the Indemnified Parties of all liability), and (c) give Sigma Computing all reasonable assistance, at Sigma Computing’s request. The foregoing is Sigma Computing’s sole liability and Customer exclusive remedy for any infringement or misappropriation claims related to the Website, Platform and/or Services.
DISCLAIMER OF WARRANTIES
- Limited Warranty. Sigma Computing warrants, for Customer’s benefit only that the Services will operate in substantial conformity to the on-line documentation in all material respects. Sigma Computing’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, at no charge to Customer, for Sigma Computing to use commercially reasonable efforts to correct the reported non-conformity, or if Sigma Computing determines such remedy to be impracticable, either party may terminate the applicable Order Form and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Service for the terminated portion of the applicable Order Form.
- Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY ABOVE, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SIGMA COMPUTING PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SIGMA COMPUTING PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (2) CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT CUSTOMER’S OWN RISK, AND CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S COMPUTER SYSTEM. THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. SIGMA COMPUTING MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES. FROM TIME TO TIME, SIGMA COMPUTING MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT SIGMA COMPUTING’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION 7 AND ALL LIMITS ON LIABLITY APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
- No Liability for Conduct of Third Parties. CUSTOMER ACKNOWLEDGES AND AGREES THAT SIGMA COMPUTING PARTIES ARE NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD SIGMA COMPUTING PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO ANY OPERATORS OF EXTERNAL SITES OR ANY OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH CUSTOMER].
LIMITATION OF LIABILITY. “EXCLUDED CLAIMS” MEANS (A) ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY; CUSTOMER ACCOUNT) OR SECTION 1.1 (RESTRICTIONS), (B) THE PARTIES’ RESPECTIVE INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), (C) ANY CLAIMS ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT FOR EXCLUDED CLAIMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, , WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, ON ANY THEORY OF LIABILITY. TO THE FULLEST EXTENT OF LAW, EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S TOTAL, CUMULATIVE, AGGREGATE LIABILITY SHALL NOT EXCEED THE SUM OF ALL AMOUNTS PAID AND PAYABLE BY CUSTOMER TO SIGMA COMPUTING IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE APPLICABLE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SIGMA COMPUTING AND CUSTOMER.
- Violations. If Sigma Computing becomes aware of any possible violations by Customer of this Agreement, Sigma Computing reserves the right to investigate such violations. If, as a result of the investigation, Sigma Computing believes that criminal activity has occurred and reasonable notice has been provided to Customer (if permitted under applicable law), Sigma Computing reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Sigma Computing is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or through the Services, in Sigma Computing’s possession in connection with Customer use of the Services, to (a) comply with applicable laws, legal process or governmental request, (b) enforce this Agreement, (c) respond to Customer requests for customer service, or (d) protect the rights, property or personal safety of Sigma Computing, its users or the public, and all enforcement or other government officials, as Sigma Computing in its sole discretion believes to be necessary or appropriate.
- Breach. In the event that Sigma Computing determines, in its sole discretion, that Customer has breached any portion of this Agreement, or have otherwise demonstrated conduct inappropriate for the Services, Sigma Computing reserves the right to: (i) Warn Customer via e-mail (to any e-mail address Customer has provided to Sigma Computing) that Customer has violated this Agreement; (ii) Discontinue Customer’s access to the Services only following such Warning, provided Sigma Computing will reinstate access if the breach is remedied by Customer within a ten (10) day period; (iii) Notify and/or send content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (iv) Pursue any other action which Sigma Computing reasonably deems to be appropriate.
TERM AND TERMINATION.
- Term. This Agreement will commence on the Effective Date, and remain in full force and effect, unless terminated in accordance with this Agreement.
- Termination; Effect of Termination. Either party may terminate this Agreement if: (a) the other party materially breaches this Agreement and does not cure such breach within thirty (30) days of notice of such breach from the non-breaching party or (b) there is no Order Form in place with an active Services term. Termination of this Agreement includes removal of access to the Services and barring of further use of the Services. Termination of this Agreement also includes deletion of Customer’s password and all related information, files and Customer Content associated with or inside Customer’s Account (or any part thereof), where such deletion shall not occur until 30 days following the date of termination, unless Customer requests an earlier deletion in writing. At any time prior to the date of deletion Customer may request a copy of all Customer Content and related information and files, and Sigma Computing shall provide the same to Customer within ten (10) days of such request, at no cost to Customer. Upon termination of Customer’s access to the Services, Customer’s right to use the Services will automatically terminate immediately. All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, indemnification and limitation of liability.
- Electronic Communications. The communications between Customer and Sigma Computing use electronic means, whether Customer visits the Services or send Sigma Computing emails, or whether Sigma Computing posts notices through the Services or communicates with Customer via email. Customer (a) consents to receive communications from Sigma Computing in an electronic form, and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Sigma Computing provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
- Assignment. Either party may assign or transfer this Agreement as a result of a merger, acquisition, corporate restructuring, change in control or similar such transaction or sale of all or substantially all of its assets related to this Agreement. Except as set forth in the preceding sentence, this Agreement may not be assigned or transferred by a party without the other party’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
- Force Majeure. Neither party shall be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
- Dispute Resolution. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between representatives with the authority to resolve such dispute. If the matter has not been resolved within thirty (30) days of a party’s request for negotiation, either party may initiate arbitration as provided below.
- Arbitration. Any dispute arising out of or relating to this Agreement shall be submitted to arbitration. In the event the parties cannot agree on a neutral arbitrator, the parties agree to utilize the American Arbitration Association, under the Arbitration Rules then in effect. Any court having jurisdiction thereof may enter judgment upon the award rendered by the arbitrator(s). The arbitrator is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. The decision of the arbitrator shall be in accordance with the terms and conditions of this Agreement, shall be binding upon the parties, and may not be appealed. The parties will comply with the arbitrator’s decision in good faith. Either party may apply to any court with proper jurisdiction for enforcement of the arbitration decision. Unless otherwise agreed to, the place of arbitration shall be in San Francisco, California. The fees and expenses of the arbitrator shall be divided equally between the parties unless otherwise ordered by the arbitrator.
- Equitable Relief. The parties agree that any breach of confidentiality or intellectual property infringement and violation of intellectual property ownership rights, may cause irreparable damage to the other party and that in the event of such breach, infringement or violation, the non-breaching party shall have, in addition to any and all remedies of law, the right to seek an injunction, specific performance or other equitable relief in a court of law to enforce the breaching party’s obligations under this Agreement.
- Legal Fees. If either party brings an action against the other by reason of the breach or for the enforcement of any provision or otherwise arising out of this agreement, the prevailing party in such suit shall be entitled to its costs of suit and reasonable attorneys’ fees which shall be payable whether or not such action is prosecuted to judgment.
- Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the California, without giving effect to its conflict of laws principles. Customer and Sigma Computing agree that to the extent that litigation is permitted and undertaken in connection with this Agreement, it will be litigated exclusively in the state or federal courts located in San Francisco, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
- Compliance with Laws. Each party agrees to comply with all applicable laws and regulations in the performance of its obligations hereunder including with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) each party represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any third parties to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Sigma Computing employees or agents in connection with this Agreement.
- Federal Government End Use Provisions. Sigma Computing provides the Services, including all related software, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Sigma Computing to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
- Choice of Language.It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
- Notice. Where Sigma Computing requires that Customer provides an email address, Customer is responsible for providing Sigma Computing with Customer’s most current email address. In the event that the last email address Customer provided to Sigma Computing is not valid, or for any reason is not capable of delivering to Customer any notices required or permitted by this Agreement, Sigma Computing’s dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give notice to Sigma Computing at the following address: Sigma Computing, Inc., 405 Howard Street, Suite 600, San Francisco 94105. Such notice shall be deemed given when received by Sigma Computing by letter delivered by nationally recognized overnight delivery service or certified mail, return receipt requested, at the above address.
- Waiver.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.
- Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
- Entire Agreement. This Agreement, the applicable Order Form and any exhibits attached hereto are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.