1.1 General. Terrain may perform analytic services and generate certain resulting reports for Customer pursuant to one or more mutually executed order forms entered into between the parties (each, an "Order"). Each Order will outline (a) the services to be provided by Terrain (the "Services"), (b) the reports to be generated by Terrain as part of the Services (each, a "Report"), (c) the period the Services will be provided (the "Subscription Period"), (d) the number of user seats for which the Services will be provided (each, a "User Seat"), and (e) the fees for the Services during the Subscription Period (the "Fees"). This Master Services Agreement (this "MSA"), together with any applicable Orders, will govern the Services. This MSA and all Orders are collectively referred to as this "Agreement." Capitalized terms utilized but not defined in this MSA are defined in the Order. To the extent that a conflict arises between the terms and conditions of an Order and the terms and conditions of this MSA, the terms and conditions of this MSA will govern unless the Order specifically identifies the term or condition of this MSA that the Order supersedes. This MSA will be incorporated by reference into all Orders.
1.2 Provision and License. Upon mutual execution of an Order, subject to the terms and conditions of this Agreement, Terrain will use commercially reasonable efforts to provide the Services to Customer, including delivering the Reports. Upon delivery of each Report, subject to the terms and conditions of this Agreement, Terrain hereby grants to Customer a non-exclusive, non-transferable, revocable right, during the Subscription Period, to access such Report for Customer's internal non-commercial purposes. If Customer seeks to publicly display, publicly distribute, or otherwise publicly reference the data included in such Report (but not the Report in its entirety) (such data, "Data" and such display, distribution, or reference of such Data, a "Data Distribution"), Customer will, prior to making a Data Distribution, (a) submit the proposed Data Distribution to Terrain and (b) obtain Terrain's prior written consent to the contents of such Data Distribution (including with respect to attributing Terrain as the source of the Data therein in accordance with Terrain's instructions as to source attribution). Terrain may grant or withhold such consent in its sole discretion. For the avoidance of doubt, without limiting Section 2 and regardless of Terrain's written consent to a Data Distribution, under no circumstances will Customer be permitted to publicly display, publicly distribute, publicly reference, or otherwise publicize the Report in its entirety.
1.3 Ownership. Except for the rights granted in Section 1.2 above, Terrain retains all right, title and interest in and to the Services (including, without limitation, the Reports and all Data therein), together with all algorithms, database structures and other components thereof, including all intellectual property rights related to or embodied in the foregoing. No license or other right will be created hereunder by implication, estoppel or otherwise, except as specifically provided in this Agreement. Customer acknowledges that the rights granted pursuant to this Agreement are not sales and do not transfer to Customer title or ownership of the Reports or Data, but only a right of limited use of such Reports and Data. All rights not expressly granted hereunder are reserved to Terrain.
1.4 Support. Terrain will use commercially reasonable efforts to provide support and troubleshooting services to Customer in connection with Customer's use of the Reports in accordance with Terrain's standard policies and procedures (the "Support Services").
Restrictions. Customer will not, in whole or in part, (a) modify, disclose, alter, translate, or create derivative works of the Services or Reports, (b) license, sublicense, resell, distribute(except as expressly authorized by this Agreement with respect to distribution of Data), lease, rent, lend, transfer, assign, or otherwise dispose of the Services or Reports, (c) copy or reverse engineer any features or functions of the Services or Reports, (d) remove, alter, or obscure any proprietary notices in or on the Services or Reports including copyright or trademark notices, (e) use the Services or Reports for any purpose that is illegal in any way or that advocates illegal activity or for any purpose other than as expressly permitted in Section 1.2, or (f) cause or permit any User (as defined below) or third party to do any of the foregoing.
3.1 Identification. Customer will identify in writing to Terrain the Customer user authorized to access the Reports under each User Seat (each, a "User"). The terms and conditions of this Agreement will apply to each User. Except as expressly authorized by this Agreement, Customer will ensure that (a) no User or other person accesses the Reports on behalf of another person or entity and (b) Users do not share or transfer access rights to the Reports. Customer is responsible for any and all acts or omissions of all Users and any act or omission of any User will, for purposes of this Agreement, be deemed an act or omission of Customer.
3.2 Accounts. In order to access or receive certain of the Services, Customer may, on behalf of each User, be required to establish an account with Terrain, via the method specified by Terrain (an "Account"). Customer will, and will ensure that all Users, (a) provide accurate Account information and promptly update such information if it changes, (b) maintain the security of each Account, (c) ensure that each Account is only used by the User to which it relates, and (d) notify Terrain promptly in writing upon discovery or suspicion that someone has accessed an Account without permission.
3.3 Eligibility. Customer represents and warrants that it and each User is fully authorized to access and use the Reports in accordance with this Agreement. Without limiting the foregoing, Customer represents and warrants that neither Customer nor any User (a) is a resident of any country subject to a United States embargo or other similar United States export restrictions, including Iran, Cuba, North Korea, the Region of Crimea, Sudan or Syria, or (b) is on the United States Treasury Department's list of Specifically Designated Nationals, the United States Department of Commerce's Denied Persons List or Entity List, or any other United States export control list.
Fees and Payment Terms.
4.1 Fees. Customer will pay to Terrain the Fees in accordance with the payment terms set forth in the applicable Order. The Fees do not include taxes. Customer will pay all invoiced amounts to Terrain within 30 days of the date of the invoice. All payments made under this Agreement will be made (a) in U.S. Dollars and (b) by check or by bank wire transfer in immediately available funds to an account designated by Terrain or by debit card via Terrain or an authorized Terrain payment processor. If by debit card, Customer hereby (i) authorizes Terrain (or its authorized payment processor) to charge the debit card number provided to Terrain, and (ii) represents and warrants that Customer is authorized to use and have Fees charged to the debit card number provided to Terrain.
4.2 Interest and Taxes. Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date the amount is due until the date the amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Services excluding only taxes based solely on Terrain's net income. Notwithstanding any terms to the contrary in this Agreement, (a) Terrain will not be obligated to issue any refunds for Fees paid, and (b) Terrain, at its sole discretion, may modify the Fees during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period.
5.1 Definition. "Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the "Disclosing Party") to the other party (the "Receiving Party") (or all information (whether in oral, written, or other tangible or intangible form) acquired by the Receiving Party), concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party (or acquisition of the information by the Receiving Party), is proprietary information of the Disclosing Party. Without limiting the foregoing, the Reports constitute Confidential Information of Terrain.
5.2 Obligations. The Receiving Party will maintain in confidence the Confidential Information and will not use the Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. The Receiving Party will use the Confidential Information solely to exercise its rights or perform its obligations under this Agreement. In addition, the Receiving Party will only disclose Confidential Information to its directors, officers, employees or contractors who have a need to know the Confidential Information in order to perform their duties under this Agreement, and if those directors, officers, employees or contractors have executed a non-disclosure and non-use agreement with the Receiving Party with terms no less restrictive than the non-disclosure and non-use obligations contained in this Section 5.2. Each party agrees that the terms and conditions of this Agreement will not be disclosed to any third party, provided that each party may disclose the terms and conditions of this Agreement (a) to that party's legal counsel, accountants, banks, financing sources and their advisors, (b) in connection with the enforcement of this Agreement or rights under this Agreement, or (c) in connection with an actual or proposed merger, acquisition, financing, or other transaction. Notwithstanding any terms to the contrary in this Agreement, Terrain will be free to use, disclose, reproduce, license and otherwise distribute and exploit any suggestions, comments or other feedback provided by Customer to Terrain with respect to Terrain or the Services as Terrain sees fit, without obligation or restriction of any kind on account of intellectual property rights or otherwise.
5.3 Exceptions. Confidential Information will not include information that (a) is in or enters the public domain without breach of this Agreement through no fault of the Receiving Party or unauthorized act of any third party, (b) the Receiving Party can reasonably demonstrate was in its possession, without any obligation of confidentiality, prior to first receiving it from the Disclosing Party, (c) the Receiving Party can demonstrate was developed by the Receiving Party independently of, and without use of or reference to, the Confidential Information, or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. In addition, the Receiving Party may disclose Confidential Information that is required to be disclosed by law or by a subpoena or order issued by a court of competent jurisdiction (each, a "Court Order"), but solely on the conditions that the Receiving Party (i) gives the Disclosing Party written notice of the Court Order within 24 hours after receiving it, and (ii) cooperates fully with the Disclosing Party before disclosure to provide the Disclosing Party with the opportunity to interpose any objections it may have to the disclosure of the information required by the Court Order and seek a protective order or other appropriate relief. In the event of any dispute between the parties as to whether specific information is within one or more of the exceptions set forth in this Section 5.3, the Receiving Party will bear the burden of proof, by clear and convincing evidence, that the information is within the claimed exception(s).
5.4 Remedies. The Receiving Party acknowledges that any unauthorized disclosure of Confidential Information will result in irreparable injury to the Disclosing Party, which injury could not be adequately compensated by the payment of money damages. In addition to any other legal and equitable remedies that may be available, the Disclosing Party will be entitled to seek and obtain injunctive relief against any breach or threatened breach by the Receiving Party of the confidentiality obligations hereunder, from any court of competent jurisdiction, without being required to show any actual damage or irreparable harm, prove the inadequacy of its legal remedies, or post any bond or other security.
Representations and Warranties. Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms.
Disclaimers and Limitation of Liability.
7.1 General Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6, THE SERVICES (INCLUDING, WITHOUT LIMITATION, THE REPORTS AND DATA) AND THE SUPPORT SERVICES ARE PROVIDED OR OTHERWISE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES EXPRESSLY INCLUDED IN SECTION 6 ARE IN LIEU OF, AND TERRAIN EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
7.2 No Responsibility for Third-Party Content; No Investment Advice. WITHOUT LIMITING THE DISCLAIMERS IN SECTION 7.1, CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT:
(a) THE SERVICES (INCLUDING THE REPORTS) MAY RELY ON CONTENT, MATERIALS, OR INFORMATION PROVIDED OR MADE AVAILABLE BY THIRD PARTIES ("THIRD-PARTY CONTENT") AND SUCH THIRD-PARTY CONTENT MAY BECOME UNAVAILABLE TO TERRAIN. TERRAIN DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO THIRD-PARTY CONTENT, INCLUDING, WITHOUT LIMITATION, ANY RESPONSIBILITY OR LIABILITY FOR FAILURE TO PERFORM THE SERVICES OR DELIVER THE REPORTS DUE TO ANY THIRD-PARTY CONTENT (INCLUDING, WITHOUT LIMITATION, THE UNAVAILABILITY OF ANY THIRD-PARTY CONTENT).
(b) NEITHER THE PERFORMANCE OF THE SERVICES NOR DELIVERY OF THE REPORTS (INCLUDING ANY DATA) CONSTITUTE, AND NONE OF THE FOREGOING SHOULD BE CONSTRUED AS, (I) A SOLICITATION OR OFFERING OF ANY INVESTMENT OR SECURITIES OR A RECOMMENDATION TO ACQUIRE OR DISPOSE OF ANY INVESTMENT OR SECURITY, (II) THE PROVISION OF ANY FINANCIAL, INVESTMENT, TAX, LEGAL, OR OTHER RECOMMENDATION OR ADVICE OR OTHERWISE ESTABLISHING AN ADVISORY RELATIONSHIP, (III) INFORMATION THAT ADDRESSES ANY INVESTMENT OR FINANCIAL OBJECTIVES, SITUATION, OR NEEDS, OR (IV) A TRANSACTION IN SECURITIES.
7.3 Limitation of Liability. TERRAIN'S SOLE AND AGGREGATE LIABILITY ON ANY AND ALL CLAIMS, LOSSES, OR LIABILITIES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE SERVICES AND SUPPORT SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, WILL BE LIMITED TO DIRECT DAMAGES AND WILL IN NO EVENT EXCEED THE FEES ACTUALLY PAID TO TERRAIN IN THE PRECEDING 12 MONTH PERIOD UNDER THE ORDER GIVING RISE TO THE LIABILITY AND ASSOCIATED WITH SERVICES OR SUPPORT SERVICES PROVIDED. IN NO EVENT WILL TERRAIN BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES. MULTIPLE CLAIMS WILL NOT EXPAND THESE LIMITATIONS. THIS SECTION 7 WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.1 Indemnification by Terrain. Terrain, at its sole expense, will defend Customer from and against any and all third-party claims, suits, actions or proceedings (each a "Claim"), and indemnify Customer from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorneys’ fees, costs, penalties, interest and disbursements) "Losses") that are awarded by a court of competent jurisdiction or included in a settlement approved, in advance and in writing, by Terrain, to the extent resulting from the Reports or Data (solely in the form provided or delivered to Customer and solely when used by Customer in accordance with this Agreement) infringing any U.S. or Canadian intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer, at its sole expense, will defend Terrain and its directors, officers, employees and agents ("Terrain Indemnitees") from and against any and all Claims, and indemnify the Terrain Indemnitees from any related Losses, to the extent arising in connection with (a) Customer's use of the Services, Reports, or Data (except to the extent expressly covered by Terrain's indemnification and defense obligations set forth in Section 8.1) or (b) Customer's alleged or actual (i) breach of its obligations under this Agreement or (ii) violation of applicable laws, rules, or regulations.
8.3 Procedures. The indemnifying party's indemnification obligations under this Section 8 are conditioned upon the indemnified party (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party's obligations under this Section 8 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party), and (c) providing reasonable cooperation to the indemnifying party, and at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
Term, Termination and Effect of Termination.
9.1 Term. This Agreement commences on the Effective Date and, unless earlier terminated as set forth in Section 9.2 or as otherwise provided in the Order, continues through the Subscription Period. Thereafter, unless terminated as set forth in Section 9.2 or otherwise provided in the Order, this Agreement will automatically renew for successive periods equivalent to the length of the Subscription Period (each period referred to as a Subscription Period) unless either party provides written notice of non-renewal no less than 60 days prior to the end of the then-current Subscription Period. Customer acknowledges that it may not receive notice of a renewal date.
9.2 Termination. Customer may terminate this Agreement for convenience on 30 days' prior written notice to Terrain. Additionally, either party may terminate this Agreement, for cause, if the other party materially breaches this Agreement and does not remedy the breach within 30 days after its receipt of written notice of the breach. Further, notwithstanding any terms to the contrary in this Agreement, Terrain may suspend provision of the Services (or any portion thereof) without liability if Terrain reasonably determines that (a) Terrain is required by any applicable laws, rules, or regulations to suspend the Services or (b) Customer is in material breach of this Agreement.
9.3 Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, (a) all rights granted to Customer under this Agreement will immediately cease, (b) Customer will immediately pay to Terrain any and all Fees that (i) are due and payable as of and up to the effective date of termination of this Agreement and (ii) but for such termination, would have been owed by Customer for the remainder of the then-current Subscription Period, and (c) each party will promptly return to the other party all Confidential Information of the other party then in its possession or destroy all copies of Confidential Information of the other party, at the other party's sole discretion and direction. Notwithstanding any terms to the contrary in this Agreement, (i) all defined terms and Sections 1.2(b), 1.3, 2, 3.1, 3.2, 4, 5, 7, 8, 9.3, and 10 will survive any termination or expiration of this Agreement and (ii) no refunds will be issued upon any termination or expiration of this Agreement.
10.1 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
10.2 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. Each party submits to the exclusive jurisdiction of any state or federal court sitting in San Francisco, California (the "Chosen Courts") in any litigation arising out of or relating to this Agreement, agrees that all claims in respect of that litigation will be heard and decided only in that Chosen Court, waives any claim of inconvenient forum or other challenge to venue in that Chosen Court, and agrees not to bring or maintain that litigation before any tribunal other than the Chosen Courts (except, for clarity, in any proper appeal from a Chosen Court).
10.3 Publicity. Notwithstanding any terms to the contrary in this Agreement, Customer consents to Terrain's use of Customer's name and logo on the Terrain website and on Terrain's promotional and marketing related materials, identifying Customer as a customer of Terrain and describing Customer's use of the Services.
10.4 Third-Party Content. Customer will comply with any additional terms and conditions provided by Terrain with respect to Third-Party Content.
10.5 Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Terrain, and any attempted transfer, assignment or delegation without that consent will be void and without effect. Subject to the foregoing, this Agreement will be binding upon and enforceable against any successor or permitted assignee.
10.6 Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
10.7 Notices. Any notice or communication required or permitted to be given hereunder will be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at any other address as may hereafter be furnished in writing by either party to the other party. That notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 10 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
10.8 Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, (a) that invalidity, illegality or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable that provision in any other jurisdiction, and (b) that provision, in that jurisdiction, will be replaced by a valid, legal and enforceable provision that best reflects the parties' intent for that first provision.
10.9 Audit. Terrain may, by itself or through an independent third party, audit Customer's use of the Services (including, without limitation, the Reports and Data) to verify Customer is in compliance with the terms and conditions of this Agreement. Customer agrees to provide reasonable access to Customer's systems and records for purposes of conducting these audits.
10.10 Counterparts. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format).
10.11 Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by Terrain, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.