These Cedexis Data Subscription Terms between Cedexis Inc. a Delaware corporation, doing business at 421 SW 6th Avenue, Suite 700, Portland, Oregon, 97204 USA and you, the Client (the “Agreement”). This Agreement governs the Client’s subscription to and use of the Cedexis ADS Services as purchased under one or more Order Forms, which incorporate the terms of this Agreement by reference.
Cedexis is in the business of providing global performance monitoring and global load-balancing services, and in connection with such services, Cedexis collects valuable daily measurement data through a proprietary service commonly referred to as “Cedexis Radar” (the “Data”). Client has expressed an interest in licensing the Data from Cedexis and, more specifically, to use the Data solely in connection with the Permitted Purposes (as such term is defined below), and Cedexis has expressed an interest in granting such a license to Client for such Permitted Purposes. The parties agree as follows:
1.1 “Affiliate” means an entity that currently controls is controlled by, or is under common control with Client, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
1.2 “Cedexis IP” means Cedexis Technology and Data.
1.3 “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, trade secret rights, and all other intellectual property rights, derivatives thereof, and similar forms of protection.
1.4 “Laws” means any and all applicable laws, rules, and regulations (including principles and policies of industry self-regulatory agencies).
1.5 “Subscription Term(s)” means the period(s) during which Cedexis will provide access to the Data, as specified in the Order Form.
1.6 “Order Form” means a document detailing the Subscription to be provided by Cedexis, the Subscription Term, the associated fees, and any other transaction-specific terms and conditions, in the form attached hereto as Exhibit A.
1.7 “Permitted Purposes” means: (a) monitoring, assessment, and marketing of Client’s own CDN and cloud performance, and benchmarking such performance against other CDN and cloud providers, whose data is provided to Client anonymously in connection with this Agreement; and (b) assessment and optimization of Client’s platform development, all for Client’s internal business purposes. For clarity, any other uses of the Data is out of scope and not permitted. By way of example, but not limitation, using the Data to directly or indirectly create a real-time traffic management solution is not permitted.
2. PROVISION OF SUBSCRIPTION.
2.1 Data Delivery. During the Subscription Terms, the Client may access the Data via any one or more Cedexis’ provided methods, including via Cedexis’ website and/or web portal, a bulk Data file, daily Data reports, and/or an Application Programming Interface (the “Cedexis API”), in accordance with the terms of this Agreement and the applicable Order Form. The technical specifications for the Cedexis API, including authentication, will be covered by written documentation provided to Client from time to time. No change to access methods will be made except upon thirty (30) business days’ prior written notice. Client will not access the Cedexis API other than to retrieve the Data licensed hereunder.
2.2 License to Data. Subject to the terms and conditions of this Agreement, Cedexis hereby grants Client, during the Subscription Term, a non-exclusive, non-transferable, non-sublicenseable, non-assignable, revocable license to access, use, reproduce, and display the Data provided by Cedexis for the Permitted Purpose, provided that Client includes a prominent acknowledgement where the Data is displayed, attributing Cedexis as the source of the Data. Client agrees to comply with Cedexis’ trademark and branding guidelines provided by Cedexis, as such guidelines may be updated by Cedexis from time to time. Client will use the Data in accordance with any and all Laws, as well as any and all third-party rights and obligations that Client has to any third party. Without limiting the generality of the foregoing, except as expressly permitted under this Section 2.2, Client will not directly (or through any third party) collect or use any Data for purposes of segmenting, re-targeting, creating, supplementing or amending user profiles or interest categories, or syndication or other distribution to third parties, unless such data collection and usage are authorized by or on behalf of Cedexis in writing.
2.3 License Restrictions. Client will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Data; (ii) modify or create derivative works based on the Data; (iii) create Internet “links” to the Data, or “frame” or “mirror” any content provided in connection therewith; or (iv) copy any ideas, features, functions or graphics of the Data or use the Data other than for the Permitted Purposes. Client will not provide or disclose to, or permit use of the Data by, persons other than Client’s employees and contractors who are under a legally binding obligation of confidentiality consistent with this Agreement. Notwithstanding anything to the contrary herein, Client agrees that Client will maintain data protection safeguards suitable to protect the Data from unauthorized access and use based on the nature of such data and commercially accepted practices. Cedexis reserves the right to suspend and/or terminate this Agreement and the applicable access rights in the event of any breach of this section. Such suspension and/or termination will be without prejudice as to Cedexis’ other rights and remedies, and without penalty for Cedexis or liability to Client.
3. USAGE LIMITS. Services are subject to usage limits, including, for example, the quantities of decisions listed in an Order Form. If Client exceeds a contractual usage limit, Client agrees to be invoiced for additional usage at Cedexis’ then current list price or at the applicable pricing referenced in the corresponding Order Form.
4. AFFILIATES USE. Client may grant Affiliate(s) access the Services, provided that any act or omission by an Affiliate in breach of this Agreement will be deemed a breach by Client. Further, Client’s Affiliates may purchase Services under the terms of this Agreement by executing an Order Form that specifically references the terms of this Agreement.
5. OWNERSHIP. As between Cedexis and Client, Cedexis owns all right, title and interest, including all related Intellectual Property Rights, in and to the Data, any and all suggestions, ideas, enhancement requests, and feedback relating to Data. Client hereby assigns to Cedexis all right, title and interest to all such other intellectual property, including all related Intellectual Property Rights, and to the extent not assignable, Client hereby grants Cedexis a non-exclusive, irrevocable, transferable, royalty-free, fully paid-up right and license, with the right to sublicense through multiple tiers, to reproduce, copy, modify, distribute, perform, display, make, have made, import, use, have used, offer for sale, sell, have sold, make derivative works of, and fully exploit in any way and for any purpose, all such Cedexis IP, in whole and in part, without any limitation of time, field, or technology, known or unknown. To the extent that such rights (including but not limited to “artists rights” or “moral rights”) to which may not be so licensed, Client unconditionally and irrevocably waives (on behalf of itself and its personnel) the enforcement of such right, and all claims and causes of action of any kind against Cedexis with respect thereto, and agrees, at Cedexis’ request and expense, to consent to and join in any action to enforce such rights on Cedexis’ behalf.
6. FEES AND PAYMENT TERMS.
6.1 Client will pay all invoices issued. Unless otherwise provided in the applicable Order Form, invoices will be issued upon commencement of the Subscription Term and additional periodic invoices may be issued for exceeded usage and renewals of the Subscription Term, in accordance with Section 3 above. Amounts are due and payable in full, without setoff or deduction, within thirty (30) days following the invoice date and are payable in U.S. dollars unless otherwise agreed. If Client reasonably disputes any invoiced amount in good faith, Client will notify Cedexis of such dispute in writing.
6.2 The fees outlined in an Order Form will apply to both the initial term as well as any renewal terms. Fees may not be modified during the initial term. Cedexis reserves the right to modify its fees and charges prior to any subsequent renewal Subscription Term; any fee adjustments will take effect upon the commencement of the subsequent Subscription Term.
6.3 Cedexis’ fees are exclusive of all taxes, levies, or duties, and Client will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Cedexis’ income. Client will make all payments of fees to Cedexis free and clear of, and without reduction for, any VAT, withholding, or similar taxes; any such taxes imposed on payments of fees to Cedexis will be Client’s sole responsibility, and Client will provide Cedexis with official receipts issued by the appropriate taxing authority, or such other evidence as Cedexis may reasonably request, to establish that such taxes have been paid. Client agrees to indemnify, defend, and hold Cedexis, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Client’s failure to report or pay any such taxes, duties or assessments.
6.4 Cedexis may suspend or terminate this Agreement and Client’s access to the Service if Client is more than 60 days past due on any invoice. Unpaid amounts are subject to interest at the lesser of one and one-half percent (1.5%) per month or the maximum permitted by law plus all expenses of collection. Client will continue to be charged for Services during any period of suspension.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Cedexis Representations and Warranties.
(a) Cedexis represents and warrants that it has the full corporate power and authority to enter into this Agreement.
(b) CEDEXIS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE DAT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) ERRORS OR DEFECTS WILL BE CORRECTED, OR (C) THE DATA IS FREE OF HARMFUL CODE. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 10.1 (REPRESENTATIONS AND WARRANTIES), CEDEXIS DISCLAIMS ALL LIABILITY FOR ANY DATA ERRORS OR ACCESS ISSUES. ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM LEGALLY PERMISSIBLE EXTENT. CEDEXIS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CEDEXIS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN ADDITION, CEDEXIS RESERVES THE RIGHT TO UPGRADE, ADD TO, OR MODIFY THE SERVICE WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY SO LONG AS SUCH CHANGES TO THE SERVICE DO NOT RESULT IN A MATERIAL DIMINUTION IN THE DATA FROM THAT ORIGINALLY LICENSED UNDER THIS AGREEMENT AND THE ORDER FORM. CLIENT’S PURCHASES HEREUNDER ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY NOR DEPENDENT ON ANY STATEMENTS REGARDING FUTURE FUNCTIONALITY.
7.2 Client Representations and Warranties.
(a) Client represents and warrants that it has the full corporate power and authority to enter into this Agreement
(b) Client represents and warrants that it will abide by all applicable laws, treaties and regulations in connection with use of the Data.
8. INDEMNIFICATION. Client will indemnify and hold Cedexis harmless from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with any use of the Data, or any breach of this Agreement by Client.
9. LIMITATION OF LIABILITY. IN NO EVENT WILL CEDEXIS’ OR ITS LICENSORS’ OR SUPPLIERS’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM. NEITHER CEDEXIS NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, OR USE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE CEDEXIS IP, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE CEDEXIS IP, ANY INTERRUPTION, INACCURACY OR ERROR IN THE CONTENT, EVEN CEDEXIS OR ITS SUPPLIERS OR LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. CONFIDENTIALITY. “Confidential Information” means the terms and conditions of this Agreement, Cedexis pricing information, and any other information disclosed by one party to the other in connection with this Agreement which is either (a) clearly marked or identified as confidential or proprietary at the time of disclosure; or (b) information which a reasonable person would consider confidential given the nature of the information and circumstances of disclosure. Each party agrees that it will use the other party’s Confidential Information solely to perform its obligations under this Agreement. Neither party will directly or indirectly disclose the other party’s Confidential Information, to any third party without the other party’s prior written consent. However, either party may disclose such information to its employees, officers, directors and or subcontractors who have a need to know and who are bound in writing to keep such information confidential. Each party agrees to exercise due care in protecting the other party’s Confidential Information from unauthorized use and disclosure, and in any case will not use less than the degree of care a reasonable person would use. The foregoing will not apply to any information that the receiving party can document: (i) is in the public domain through no fault of its own; (ii) was known to it, without restriction, prior to disclosure by the disclosing party; (iii) was disclosed to it, without restriction, by another person with the legal authority to do so; (iv) is independently developed by the receiving party without use the disclosing party’s Confidential Information (v) is expressly permitted to be disclosed pursuant to the terms of this Agreement. A receiving party may disclose Confidential Information if required pursuant to a judicial order; provided that, to the extent permitted by law and reasonably feasible under the circumstances, the receiving party provides to the disclosing party prior notice of the disclosure and an opportunity to respond to the disclosure.
11. TERM; TERMINATION.
11.1 Term; Termination. Unless terminated earlier for cause, this Agreement will commence on the Effective Date and will continue for the SubscriptionTerm. This Agreement will automatically renew for one (1) or more successive Subscription Terms, unless either party provides at least thirty (30) days’ written notice of nonrenewal prior to the end of any applicable Subscription Term; provided, however, that the terms of this Agreement will continue to apply to any Order Forms that are still in effect. Either party may terminate this Agreement (or any Order Form) upon the other party’s material breach that remains uncured for thirty (30) days following notice of such breach. Cedexis may immediately suspend or terminate this Agreement upon notice to Client that in Cedexis’ reasonable determination: (A) Client is in material breach of this Agreement, including, without limitation, breach of Sections 2.2, 2.3, or 9, (B) Client’s use of the Data is interfering with, or could reasonably be expected to interfere with, Cedexis’ operation or provision of, or any third party’s use of, the Data or any other business of Cedexis; or (C) the Client’s use of the Data is harming, or could reasonably be expected to harm, Cedexis’ reputation.
11.2 Effect of Termination; Survival. Upon the expiration or early termination of this Agreement, amounts (including expenses) owed to Cedexis under each Order Form and all licenses granted hereunder and Cedexis’ obligation to provide the Data, and Client’s right to access the foregoing, will terminate. The following sections will survive any termination or expiration of this Agreement: Section 1 (Definitions) and all other defined terms included in any surviving section; Section 3 (Ownership); Section 4 (Billing and Payment Terms); Section 5.2 (Effect of Termination; Survival), Section 6 (Representations and Warranties), Section 7 (Indemnification), Section 8 (Limitation of Liability), Section 9 (Confidentiality), and Section 10 (General).
12.1 Cedexis may give notice by either (a) means of a general notice on the API or as part of the Data delivery; (b) by electronic mail to Client’s e-mail address on record in Cedexis’ account information; or (c) by written communication sent by first class mail to Client’s address on record. Notices will be deemed given 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by email). Client may give notice to Cedexis (such notice will be deemed given when received by Cedexis) by letter sent to Cedexis at the address listed above, attention: CFO, or electronic mail to email@example.com.
12.2 This Agreement may not be assigned by Client without Cedexis’ prior written approval, except to an Affiliate of Client effective upon written notice to Cedexis; provided that (a) Client’s account is current; (b) such Affiliate is not a competitor of Cedexis; and (c) such Affiliate agrees in writing to comply with the terms and conditions of this Agreement. Any attempted assignment in violation of the foregoing will be null and void.
12.3 This Agreement will be governed by Oregon law, without regard to the conflicts of law provisions of any jurisdiction. Any claims arising out of or in connection with this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts in Multnomah County, Oregon. Each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT.
12.4 Except as provided in Sections 10 (Representations and Warranties) and 11 (Indemnification), the parties’ rights and remedies hereunder are cumulative. Client acknowledges that the Service and Cedexis Tag contain Cedexis’ valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to Cedexis for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy. The parties are independent contractors.
12.5 No joint venture, partnership, employment, or agency relationship exists between Client and Cedexis as a result of this Agreement or use of the Service.
12.6 If Client is a branch agency or instrumentality of the United States Government, the following provision applies. The Services, Cedexis Tag and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 22.7202-3.
12.7 The failure of Cedexis to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless in writing.
12.8 All Client purchase orders under this Agreement will be subject only to this Agreement. In the event the terms of any such purchase order or similar document conflict with or are additional to this Agreement, this Agreement alone shall apply and shall govern regardless of execution of such document by one or both parties, and Cedexis hereby notifies Client (and, if applicable, the reseller placing an order with Cedexis on Client’s behalf) of Cedexis’ objection to and rejection of such conflicting or additional terms. Furthermore, unless otherwise expressly agreed to in writing by Cedexis, no usage of trade, course of dealings, course of performance, understanding, or any term or condition in any purchase order or other document furnished by Client (or a reseller on Client’s behalf) that in any way modifies, is inconsistent with, is different from, attempts to explain and/or is in addition to this Agreement shall be part of this Agreement, and shall be regarded as null and void and is hereby expressly rejected. Additionally, Cedexis failure to object to any term or condition in any oral or written communication from Client (or Client’s reseller), will not constitute an acceptance thereof or a waiver of any term or condition contained in this Agreement. Without limiting the generality of the foregoing, if the express terms of an Order Form conflict with this Agreement, the terms on the Order Form will prevail, but only with respect to that Order Form. Except as otherwise expressly set forth above, all modifications or amendments to this Agreement must be in writing and signed by both parties, except that subsequent Service renewals can be procured by payment (by either Client or Client’s reseller, as applicable) against an issued invoice, as set forth in Section 8 (Fees and Payment Terms).
12.9 As used in this Agreement, the word “including” means “including but not limited to.”
12.10 No presumption will operate in favor of or against any party as a result of its role in drafting this Agreement.
12.11 This Agreement (including all exhibits attached hereto, and all mutually executed Order Forms, which are incorporated herein by this reference), comprises the entire agreement between Client and Cedexis and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding its subject matter. Nothing in this Agreement, express or implied, is intended to nor shall be construed to confer upon or give to any third party (including any customer of Client) other than the parties hereto, any interest, right, remedy, or other benefit with respect to or in connection with this Agreement.