Subscription Services Agreement
Last Updated April 20, 2019
PLEASE READ THIS SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ACCESSING, DOWNLOADING OR OTHERWISE USING THE CRC SERVICES. BY CLICKING THE “I ACCEPT” BUTTON OR BY DOWNLOADING OR OTHERWISE USING THE CRC SERVICE, YOU ACCEPT THIS AGREEMENT AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS. IF YOU ARE AN INDIVIDUAL ACTING ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THAT ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE CRC SERVICE. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, THEN YOU ARE NOT PERMITTED TO ACCESS, DOWNLOAD OR OTHERWISE USE THE SERVICES. This Agreement is between Critical Research Corporation (“CRC”) and you, the licensee of the CRC Services (“you” or “your”). This Agreement is effective (“Effective Date”) the earlier of the date that Customer signs or accepts this Agreement and the date that Customer begins using the CRC Service.
“Beta Program” means CRC’s pre-release of its CRC Service to end users for a limited internal business use and Feedback.
“CRC Service” means the pre-release version of the CRC Service whether labeled as alpha, beta, pre-release, preview or otherwise, provided to you by CRC under this Agreement. CRC Service may include any enhancements, updates, upgrades, derivatives or bug fixes to such software and any documentation, add-ons, templates, sample data sets or hardware devices as provided by CRC.
“Data” means the raw data you upload or submit to CRC and the processed result of the raw data generated using the CRC Service.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by you (whether in oral, electronic or written form) to CRC in connection with your use of the CRC Service. Feedback does not include Data, unless submitted or communicated by you to CRC as part of Feedback.
“Internal Purposes” means internal business use with your systems, networks, devices and data for the purposes of internal testing and evaluation of the CRC Service in order to provide Feedback to CRC regarding the CRC Service. Such use includes use of your systems, networks or devices as part of services you provide for a third party’s benefit.
2. BETA SERVICE LICENSE.
Subject to your compliance with the terms and conditions of this Agreement, CRC grants you a non-exclusive, non-sublicensable, non transferable, revocable, limited license during the term of the Agreement to use the CRC Service in a secure location, only in connection with and solely for the Internal Purposes during the Beta Program.
3. LICENSE RESTRICTIONS.
Except as expressly authorized in this Agreement or by CRC, you will not, and will not permit any third party to: (i) access or use the CRC Service for any other purposes than the Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the CRC Service (except as required to run the CRC Service and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the CRC Service; (iv) rent, lease, loan, resell, transfer, sublicense or distribute the CRC Service to any third party; (v) use or offer any functionality of the CRC Service on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) decompile, disassemble or reverse-engineer the CRC Service or otherwise attempt to derive the CRC Service source code, algorithms, methods or techniques used or embodied in the CRC Service; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the CRC Service, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the CRC Service; (ix) interfere with or disrupt servers or networks connected to any website through which the CRC Service provided; or (x) use the CRC Service to collect or store personal data about any person or entity. Any consultant, contractor, or agent hired to perform services for you may operate the CRC Service on your behalf under these terms and conditions, provided that: (a) you are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to you; (b) such use is only in connection with your Internal Purposes; (c) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (d) you remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section shall be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from CRC shall be required.
a. Definition. “Confidential Information” means information relating to the Discloser’s business, including, without limitation, product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, either directly or indirectly, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date, that either: (a) is designated as confidential by the Discloser at the time of disclosure; or (b) would reasonably be understood, given the nature of the information or the circumstances surrounding its disclosure, to be confidential. Confidential Information also includes the existence of this Agreement and the fact or nature of the discussions between the parties.
b. Use of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) only under this Agreement.
c. Disclosure of Confidential Information. Recipient will: (a) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own confidential materials);
(b) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below); and (c) not copy or reverse engineer any materials disclosed under this Agreement or remove any proprietary markings from any Confidential Information. Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in Section 2 and Recipient will remain responsible for each such person’s compliance with the terms of this Agreement.
d. Confidentiality Period. Irrespective of any termination of this Agreement, Recipient’s obligations with respect to Confidential Information under this Agreement expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets and Data where such obligations will be perpetual).
e. Exclusions. This Agreement imposes no obligations with respect to information which: (a) was in Recipient’s possession before receipt from Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) was rightfully disclosed to Recipient by a third party without restriction on disclosure; or (d) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order provided Recipient makes commercially reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order and has allowed Discloser to participate in the proceeding.
f. Return or Destruction of Confidential Information. Upon termination of this Agreement or written request by Discloser, the Recipient will: (a) cease using the Confidential Information; (b) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within 7 business days of such request or termination.
5. TERM AND TERMINATION.
This Agreement will be effective from the earlier of (a) the date provided above and (b) the date on which you first installed, downloaded or accessed a copy of the CRC Service and shall continue until terminated. This Agreement may be terminated at any time by either party, with or without cause, effective upon notice of termination. This Agreement will terminate automatically upon the end of the Beta Program or upon commercial release (if any) of the commercial CRC Service, whichever is earlier. Either party may terminate this Agreement at any time giving a 15 day advance notice Upon termination, you will immediately cease all use of the CRC Service and destroy the CRC Service, or upon request by CRC, return to CRC the CRC Service and other Confidential Information that are in your possession or control. Upon CRC’s request, you will certify in writing that you have returned or destroyed all copies of the CRC Service and Confidential Information. Sections 1, 3, 4, 6, 7, 8, 9, 10, 11, 12, 14 and 15, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after the Beta Program is completed.
CRC, its suppliers and/or its licensors own all worldwide right, title and interest in and to the CRC Service, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, CRC does not grant you any intellectual property rights in the CRC Service, and all right, title, and interest in and to all copies of the CRC Service not expressly granted remain with CRC, its suppliers and/or its licensors. The CRC Service includes use of open source software which is not owned by CRC. Use is subject to the applicable open source license. You agree to comply with all open source software licenses. You will not distribute the CRC Service of combine it with any other software which would result in an obligation to license the aggregate software in any manner. The CRC Service is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You acknowledge that the CRC Service is licensed and not sold. Third party open source software (“OSS”) is aggregated and provided as object code in a separate library which is used with the CRC Service but is not part of the CRC Service. The OSS attributions and location where the open source version of the OSS is available for download is found at https://critical.io/thirdparty. OSS is provided at no charge and is subject to the license agreements provided with the OSS. CRC will provide support for OSS in the binary version provided by CRC with the CRC Service as part of support and maintenance.
a. You agree to provide CRC Feedback related to the CRC Service. CRC, in its sole discretion, may or may not respond to your Feedback or promise to address all your Feedback in the development of future features or functionalities of the CRC Service or any related or subsequent versions of such CRC Service. You assign, at no charge, all rights to Feedback to CRC You warrant that the Feedback does not infringe any copyright or trade secret of any third party, and that you have no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by you). You further warrant that your Feedback is not subject to any license terms that would purport to require CRC to comply with any additional obligations with respect to any CRC product or service that incorporates your Feedback.
b. As sole consideration for your participation in this Beta Program, you shall be entitled to a 50% discount on the list price for the first year. Electing this option requires your entering into a new and separate commercial license. This option expires 15 days from notification by CRC of the availability of the first commercial release of the CRC Service.
You hereby grant CRC a perpetual, irrevocable, non-exclusive, royalty-free, paid-up, worldwide, sublicensable license to use, access, transmit, host, store, and display the Data solely for the purpose of providing and improving the CRC Service. CRC (or its sublicensees) may exercise such license for purposes of providing, maintaining, repairing, administering and improving the CRC Service or in developing new products or services, including rights to extract, compile, aggregate, synthesize, use, and otherwise analyze all or any portion of the Data. You represent, warrant and agree that the Data and other materials you provide or make available to CRC will not include any personally identifiable information or any protected health data. You acknowledge and agree that you are solely responsible for all Data you upload or submit using the CRC Service and for your conduct while using the CRC Service. You acknowledge and agree that: (a) you will evaluate and bear all risks associated with the use of any Data; (b) you are responsible for protecting and backing up the Data; (c) you are responsible for protecting the confidentiality of any Data; and (d) under no circumstances will CRC be liable in any way for any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of your use, deletion, modification, or correction of any Data. CRC has no responsibility to store, protect, remove or delete any Data for you and shall have no liability for the deletion of or failure to store any Data.
9. WARRANTY DISCLAIMER.
THE BETA SOFTWARE IS PROVIDED “AS IS”. CRC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE OR BY STATUTE OR IN LAW. CRC SPECIFICALLY DOES NOT WARRANT THAT THE BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, THE OPERATION OR OUTPUT OF THE BETA SOFTWARE WILL BE ERROR-FREE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE DATA POVIDED BY YOU IS ON AN “AS IS BASIS” AND YOU PROVIDE NO GURANTEE OF THE ACCURACY OF THE DATA PROVIDED TO CRC. CRC is not obligated to support, update or upgrade the CRC Service.
CRC has no obligations about any forward-looking statements made in connection with or in the course of providing the CRC Service. Forward-looking statements are statements regarding future CRC events, product offerings, product performance, customer uses or the expected financial performance of CRC. Any such statements reflect current expectations and estimates based on factors currently known and that actual events or results could differ materially. CRC does not assume any obligation to update any forward-looking statements made during the CRC Service project. In addition, any information about our roadmap outlines our general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. CRC undertakes no obligation either to develop the features or functionality described in the forward-looking statement or to include any such feature or functionality in a future release, including those you are reviewing as a part of this CRC Service. You expressly acknowledge that the CRC Service has not been fully tested and may contain defects or deficiencies which may not be corrected by CRC, that the CRC Service may undergo significant changes prior to release of the corresponding generally available final version.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL CRC BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE BETA SOFTWARE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE BETA SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CRC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, CRC WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE BETA SOFTWARE FUNCTIONS OR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE BETA SOFTWARE. CRC’S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00). BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You acknowledge that CRC and its providers may obtain information and data from you in connection with your registration, installation, and use of the CRC Service, including, without limitation, personal information. CRC may also collect and process technical and related environmental or performance information about your use of the CRC Service (which may include, without limitation, data ingest volume, search concurrency, number of unique user logins, Internet protocol addresses, operating system, configuration information, application software, session duration, pageview, operational use, and other such information) and use this information to support and troubleshoot issues, provide updates, analyze trends and improve CRC’s products or services. You hereby consent to CRC and its providers maintaining, using, storing and disclosing such information and data (including, without limitation, personal information, if any, in conformity with applicable data privacy laws. You further consent to receiving electronic communications and notifications from CRC in connection with your use of the CRC Service.
You will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where you use any of the CRC Service. You represent and warrant that you are not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. You further represent and warrant that you shall not export, re-export, ship, transfer the CRC Service to any restricted countries or restricted end users or use the CRC Service in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. You understand that the requirements and restrictions of the Export Laws may vary depending on the specific CRC Service and may change over time, and that, to determine the precise controls applicable to the CRC Service, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
14. CHOICE OF LAW AND DISPUTES.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any dispute between the parties will be resolved through binding AAA commercial arbitration in Austin Texas. The parties hereby consent to personal jurisdiction and venue therein. The prevailing party shall recover its reasonable attorneys fees, expert fees, costs including arbitration costs and fees.
All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. You acknowledge that CRC may assign, subcontract or delegate any of its rights or obligations under this Agreement. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the CRC Service and Confidential Information and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of CRC Service, Data and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement you may have with CRC. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.