Patterns Data Systems Inc.
BY INSTALLING, HAVING INSTALLED, COPYING, ACCESSING, OR OTHERWISE USING THE SERVICE OR THE SOFTWARE, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE ("AGREEMENT"). IF YOU DO NOT AGREE, DO NOT INSTALL, ACCESS, OR USE THE SERVICE OR THE SOFTWARE.
IF YOU ACCESS OR USE THE SERVICE OR SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE OF THIS AGREEMENT.
This Agreement is entered into by and between Patterns Data Systems, Inc. ("Patterns") and the entity or person placing an order for or accessing any Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms and statements of work ("SOW") that reference this Agreement. The “Effective Date” of this Agreement is the earlier of (a) the date of Customer’s first access of the Service or (b) the effective date of an Order Form or Reseller Order Form provisioning the Service.
Modifications to this Agreement: Patterns may change, modify, and update any Service, Software, Documentation, or the terms of Agreement at any time. Unless otherwise specified by Patterns, changes become effective for Customer upon renewal of the then-current Subscription Term or entry into a new Order Form after the updated version of this Agreement goes into effect. Patterns will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account, email, or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form. Continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
1. Use of Service and Software
Patterns will make the Service available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions of this Agreement, the Documentation, and the Order Form. Customer may permit its Contractors and Affiliates to access and use the Service as Users provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer or such Affiliate. Customer shall be responsible to ensure that each User complies with this Agreement.
1.2 Software License.
Patterns may make certain software available to the Customer for use in conjunction with the Service ("Software"). Software is provided to Customer under license for the duration of an applicable Subscription Term as further set forth in an Order Form.
The Software is made available for download solely for use by Customer and its Users according to the terms of this Agreement and in conjunction with use of the Service. Subject to the terms and conditions of this Agreement, Patterns grants to Customer a limited, non-exclusive, non-transferable license to use the Software in object code form solely for Customer's internal business purposes during the Subscription Term for which Customer has paid the required license Fees. Other than as specifically described herein, no right or license is granted to any of Patterns' trademarks, patents, copyrights, trade secrets or other intellectual property rights and Patterns retains all rights not granted herein.
1.2.3 End User License Agreements, Third Party Software and Open Source.
Certain Software available through the Service may include a separate end user license agreement ("EULA") that accompanies or is included with the Software. In such cases, the User will be required to accept the EULA provided with the Software, which shall control to the extent of a conflict with the License set forth in this Section 1 and the EULA. Any third-party software provided through the Service is subject to licenses from the respective owners ("Licensors"). Use of third-party software provided by Licensors shall be subject to the terms of any applicable EULA accompanying the third-party software. Certain portions of the Software may contain open-source software ("Open-Source Components") that are licensed under the terms of applicable open-source licenses. The terms of the applicable licenses of the Open-Source Components take precedence over the terms of the License set forth in this Section 1, only to the extent the terms of this License are not permitted by the applicable licenses of the Open-Source Components.
Customer Affiliates may purchase services from Patterns or a Patterns Affiliate by executing an Order Form or SOW which is governed by the terms of this Agreement. This will establish a new and separate agreement between the Customer Affiliate and the Patterns entity signing such Order Form. If the Customer Affiliate resides in a different country than Customer, then the Order Form may include modifications to terms applicable to the transaction, including but not limited to terms regarding taxes and governing law.
1.4. Compliance with Applicable Laws.
Patterns will provide the Service in accordance with its obligations under laws and regulations applicable to Patterns' provision of the services to its customers generally, including, without limitation, those related to data privacy and data transfer, without regard to Customer’s particular use of the services.
Customer will not and will not permit any third party to: (a) sell, rent, lease, license, distribute, access, sublicense, or otherwise make available any Service, or Deliverables, if applicable, to a third party; (b) use any Service to provide a service, such as a service bureau, or incorporate any Service into any Customer products; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs of any Software or Service; (d) remove or obscure any proprietary or other notices contained in any Service; or (e) use the Service in violation of the Agreement.
1.6. Trial Use.
Software products and Services, features, and functionality, that are not generally available, may be made available by Patterns to Customer for the purposes of evaluation and trial use, whether described as a "trial", "preview”, “pre-release” or “beta” (collectively, “Trials”). Customer may access and use Trials solely for its internal evaluation purposes and in accordance with the Trial Terms. A Trial may be terminated at any time any either party. In the event of any conflict between this Agreement and the Trial Terms, the Trial Terms shall govern and control solely with respect to the Trials.
2. Customer Data
2.1. Rights in Customer Data.
Customer retains all right, title and interest, including any and all intellectual property rights, in and to the Customer Data and any modifications made thereto in the course of the operation of the Service. Subject to the terms of this Agreement, Customer hereby grants to Patterns and its Affiliates a non-exclusive, worldwide, royalty-free right to process Customer Data solely to the extent necessary to provide the services to Customer, to prevent or address service or technical problems with the services, or as may be required by law.
2.2. Customer Obligations.
Customer’s use of the Service and all Customer Data will comply with applicable laws and regulations, including but not limited to any data localization or data sovereignty laws or regulations. Customer is solely responsible for the accuracy, content, and legality of all Customer Data. Customer represents and warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Patterns under this Agreement and that the processing of Customer Data, if any, by Patterns will not violate any laws or the rights of any third party.
2.3. Data Privacy.
The parties shall comply with all privacy laws and regulations applicable and, if applicable, any DPA entered into between Patterns and Customer.
The parties shall comply with the Security Addendum as applicable.
4. Intellectual Property
4.1. Patterns Technology.
Customer agrees that Patterns or its suppliers retain all right, title and interest, including all patent, copyright, trademark, trade secret and other intellectual property rights, in and to the Service, the Software, Documentation, any Deliverables, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, “Patterns Technology”). Except for the express limited rights set forth in this Agreement, no right, title, or interest in any Patterns Technology is granted to Customer. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for any Service, except for Software in object code format that may be provided by Patterns. Notwithstanding anything to the contrary herein, Patterns may freely use and incorporate into Patterns' products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users of the Services relating to Patterns' products or services (“Feedback”).
4.2. Usage Data.
Patterns may collect and use Usage Data to develop, improve, support, and operate its products and services. Patterns will not share any Usage Data that includes Customer’s Confidential Information with a third party except (i) in accordance with Section 5 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified.
Patterns may use and display Customer’s name, logo, trademarks, and service marks on Patterns' website and in Patterns' marketing materials in connection with identifying Customer as a customer of Patterns. Upon Customer’s written request, Patterns will promptly remove any such marks from Patterns' website and, to the extent commercially feasible, Patterns' marketing materials.
A party that receives Confidential Information (“Receiving Party”) from the other party (the “Disclosing Party”) shall (i) use the same degree of care to protect the Confidential Information of the Disclosing Party from unauthorized disclosure that it uses to protect the confidentiality of its own Confidential Information of like kind, but never less than reasonable care, (ii) not use any Confidential Information of the other party for any purpose outside the scope of this Agreement, and (iii) not disclose Confidential Information to a third party, except as otherwise authorized by the Disclosing Party in writing, and to limit access to Confidential Information of the Disclosing Party to Receiving Party's employees and contractors who have a need to access Confidential Information for purposes consistent with the Agreement. Receiving Party shall ensure its employees and contractors who access Confidential Information have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore agrees that the Disclosing Party shall be entitled to seek equitable relief in addition to remedies it might have at law and waives any requirement that the Disclosing Party post a bond or undertaking in relation thereto.
6. Fees and Payment, Taxes, Payment Dispute, Resellers
6.1. Fees and Payment.
All Fees and payment terms are as set forth in the applicable Order Form. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and Fees are non-refundable. If Customer issues a purchase order upon entering into an Order Form, then such purchase order shall be deemed to be solely for Customer's internal purposes and will have no effect on the terms of this Agreement or the Order Form.
Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder. If Patterns has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Patterns will invoice Customer and Customer will pay that amount unless Customer provides Patterns with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes may not be deducted by Customer from payments due Patterns, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that Patterns receives and retains an amount of Fees equal to the amount it would have received had no such deductions or withholdings been made. Upon Patterns' request, Customer will provide to Patterns its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the ordered services.
6.3. Reseller Orders.
6.3.1 Purchase from Reseller. Customer may procure use of the Service from a reseller, distributor, or referral partner, authorized by Patterns (“Reseller”), pursuant to a separate Reseller Order Form that references this Agreement. Customer’s use of any Service procured through a Reseller will be subject to the terms of this Agreement and all fees payable for such use shall be payable pursuant to the payment terms set forth in the Reseller Order Form.
6.3.2 Reseller Terms. If Customer has procured the Service, support, or Technical Services through Reseller, then different terms regarding invoicing, payment and taxes may apply as specified between Customer and the Reseller. Customer acknowledges that: (a) Patterns may share information with the Reseller related to Customer’s use and consumption of the Service, support or Technical Services; (b) the termination provisions set forth in the Agreement will also apply if Customer’s Reseller fails to pay applicable fees; and (c) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Patterns or in any way concerning the Service, support or Technical Services.
7. Term and Termination
This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no SOW, or Order Form currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
7.2. Termination for Cause.
Either party may terminate this Agreement, including all related Order Forms, if the other party: (a) fails to cure any material breach of this Agreement, including a failure to pay Fees, within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. For any termination of this Agreement by Customer for cause in accordance with Section 7.2(a), Customer shall be entitled to a refund of any unused Fees Customer has pre-paid for the Service purchased hereunder.
7.3. Effect of Termination; Customer Data Retrieval.
Upon written notice to Patterns or Reseller, Customer will have up to thirty (30) calendar days from termination or expiration of this Agreement to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Order Form shall continue in full force and effect for the duration of the Retrieval Right. Patterns shall have no further obligation to make Customer Data available after termination of this Agreement and shall thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the Service, including any related Patterns Technology, and delete all copies of Software, Documentation, any Service passwords or access codes, and any other Patterns Confidential Information in its possession.
The following Sections will survive any expiration or termination of this Agreement: 1.5 (Restrictions), 4 (Intellectual Property), 5 (Confidentiality), 6.1 (Fees and Payment), 6.2 (Taxes), 7 (Term and Termination), 8.3 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitation of Liability and Damages Exclusions), 13 (General Terms), and 14 (Definitions).
7.5. Suspension of Service.
Patterns reserves the right to suspend provision of the Service (a) if Customer (or Customer’s Reseller, if applicable) is thirty (30) days or more overdue on a payment; (b) if Patterns deems such suspension necessary as a result of Customer’s breach of Sections 1.5 (Restrictions) or 2.2 (Customer Obligations); (c) if Patterns reasonably determines suspension is necessary to avoid material harm to Patterns or its other customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Patterns' control; or (d) as required by law or at the request of governmental entities.
8.1. Service Warranty.
Patterns warrants that: (a) the Service will operate in substantial conformity with the applicable Documentation and (b) Technical Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable SOW. If Patterns is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form or Statement of Work. Customer's sole remedy for breach of this warranty will be to receive a refund of any unused Fees that Customer has pre-paid for the applicable Service or Technical Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Service or Deliverables, modifications to the Service or Deliverables by Customer or any third-party, or third-party hardware, software, or services used in connection with the Service. For Technical Services and Deliverables, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after expiration of the applicable Statement of Work.
8.2. Mutual Warranty.
Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
8.3. Warranty Disclaimer.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, THE SOFTWARE, AND ALL TECHNICAL SERVICES AND SUPPORT ARE PROVIDED “AS IS” AND Patterns MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Patterns DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
9. Support and Availability.
During a Subscription Term, Patterns will provide Customer the level of support for the Service specified in the applicable Order Form, in accordance with the Support Policy.
10. Technical Services
10.1. Provision of Technical Services.
Patterns will perform the Technical Services for Customer as set forth in each applicable Statement of Work, subject to the terms and conditions of this Agreement. The Patterns personnel that Patterns assigns to perform the Technical Services will be professional and qualified in the performance of the applicable Technical Services. If Customer, in its reasonable judgement, believes that Patterns personnel assigned to a project do not meet the requirements in this section, Patterns will in good faith discuss alternatives and will replace Patterns personnel as reasonably necessary. Where expressly stated in an SOW, Patterns will not remove Personnel expressly named in the SOW without the prior written permission of Customer.
Customer acknowledges that timely access to applicable Customer Materials (defined below), resources, personnel, equipment, or facilities is necessary for the provision of Technical Services. Customer agrees to provide such access and to reasonably cooperate with Patterns during a Technical Services project. Patterns will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this Section 10.
10.3. Customer Materials.
Customer hereby grants Patterns a limited right to use any materials provided to Patterns in connection with Technical Services projects (the “Customer Materials”) solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights (including all intellectual property rights) in and to the Customer Materials. Patterns will treat Customer Materials subject to the confidentiality obligations under Section 5 (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to Patterns under this Agreement and that the Customer Materials will not violate the rights of any third-party rights.
10.4. Access to Customer Data under an SOW.
With respect to access to any Customer Data under an SOW, Customer is solely responsible for ensuring that both the duration and scope of access is strictly limited to the access required under the specific SOW. Customer agrees that it will not grant Patterns access to Customer Data unless specifically required and noted in an SOW, and only during the term of the applicable Technical Services project. Unless otherwise specified in a SOW, Customer must ensure that (a) any access to Customer Data that it grants is limited to read-only access in Customer’s development environment for the Patterns Service (and Customer will not grant access to any other environment, such as its test, production, or disaster recovery) and (b) Customer will not grant access to any Customer Data that is unencrypted or contains personal data. To the extent access to Customer Data is granted, Customer will provide Patterns with: (i) secure Customer workstations and networks for accessing Customer Data that are monitored, managed, configured, supported, and maintained by Customer and (ii) unique user ID/passwords to each Patterns resource that requires access to Customer Data, and these credentials will be solely managed by Customer.
10.5. License to Deliverables.
The Technical Services Patterns performs (e.g., providing guidance on configuring the Patterns Service), and the resulting Deliverables are generally applicable to Patterns' business and are part of Patterns Technology. Subject to the terms and conditions of this Agreement, including the restrictions in Section 1.5, Patterns hereby grants Customer a limited, non-exclusive, royalty-free, non-transferable worldwide license to use the Deliverables internally solely in connection with such Customer’s use of the Service.
10.6. Change Orders.
Customer may submit written requests to Patterns to change the scope of Technical Services under an existing Statement of Work. Patterns will promptly notify Customer if it believes that the requested change requires an adjustment to the fees, schedule, assumptions, or scope for the performance of the Technical Services. Neither party is bound by a change request unless agreed in writing by both parties pursuant to a mutually executed amendment or change order (each, a “Change Order”). Patterns will continue to perform Technical Services pursuant to the existing Statement of Work unless the parties mutually agree to such amendment or change order. Patterns may use subcontractors to deliver Technical Services but will remain responsible for their performance of those Technical Services under the applicable terms and conditions of this Agreement.
11.1. Indemnification by Patterns.
Patterns will defend Customer against any claim by a third party alleging that any Service or Deliverable, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify Customer from and against any damages and costs awarded against Customer or agreed in settlement by Patterns, including reasonable attorneys’ fees, resulting from such claim. If Customer’s use of the Service or Deliverable result, or in Patterns' opinion is likely to result, in an infringement claim, Patterns may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service or Deliverable; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form or SOW and refund to Customer the unused Fees that Customer has pre-paid for the applicable Service or Deliverable. The foregoing indemnification obligation of Patterns will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service or Deliverable by any party other than Patterns or based on Customer’s specifications or requirements; (2) the combination of the Service or Deliverable with products or processes not provided by Patterns; (3) any use of the Service or Deliverables in non-conformity with this Agreement; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by Patterns. This section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
11.2. Indemnification by Customer.
Customer will defend Patterns against any claim by a third party arising from or relating to any Customer Data, Customer Materials or any Customer-offered product or service used in connection with the Service and will indemnify and hold harmless Patterns from and against any damages and costs awarded against Patterns or agreed in settlement by Customer, including reasonable attorneys’ fees, resulting from such claim.
11.3. Indemnification Procedures.
In the event of a potential indemnity obligation under Section 11, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense, and settlement of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under Section 11 shall not relieve the indemnifying party of its obligations under Section 11. However, the indemnifying party shall not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation, other than payment covered by the indemnifying party or ceasing to use infringing materials, or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under Section 11 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
12. Limitation of Liability; Damages Exclusions.
(A) NEITHER Patterns NOR ANY Patterns AFFILIATE SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
(B) Patterns AND ITS AFFILIATES' TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES, AND ANYONE CLAIMING THROUGH THE OTHER PARTY OR ITS AFFILIATES, FOR ALL CLAIMS IN THE AGGREGATE AND FOR DAMAGES OR LIABILITY OF ANY TYPE, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE TO Patterns IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) OR SOW TO WHICH SUCH LIABILITY RELATES (“GENERAL LIABILITY CAP”);
(C) THE PARTIES AGREE THAT THIS SECTION 12 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND
(D) THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION 12 SHALL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED Patterns, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE AGREEMENT IN ACCORDANCE WITH SECTION 1.2 (AFFILIATES).
13. General Terms
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and Patterns may assign this Agreement in its entirety to any Affiliate. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this section will be null and void.
13.2. Severability; Interpretation.
If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and shall not affect the construction of the agreement.
13.3. Governing Law, Jurisdiction and Venue.
This Agreement will be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in San Francisco, California, and both parties hereby submit to the personal jurisdiction of such courts.
Any notice or communication required or permitted under this Agreement shall be in writing and delivered to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section. Notice will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email. Email notifications to Patterns shall be to email@example.com.
13.5. Amendments; Waivers.
No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly set forth herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
13.6. Entire Agreement.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
13.7. Third-Party Beneficiaries.
There are no third-party beneficiaries under this Agreement.
13.8. Force Majeure.
Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement, except for a failure to pay Fees, if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
13.9. Independent Contractors.
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees.
13.10. Export Control.
Customer shall comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer 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 any Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to any Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.11. U.S. Government Terms.
(a) Federal Government End Use. Patterns provides the Service, including all related software and, to the extent applicable the Patterns Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service 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).
This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
14. Reseller Orders.
Customer may procure the Service directly from Reseller pursuant to a separate agreement that includes the Reseller Order Form and other commercial terms (each a “Reseller Arrangement”). Patterns will be under no obligation to provide the Service to Customer under a Reseller Arrangement if it has not received a Reseller Order Form for Customer. Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of Patterns or in any way concerning the Service. If Customer procured the Service through a Reseller Arrangement, then Customer agrees that Patterns may share certain Service Data with Reseller related to Customer consumption of the Service.
“Acceptable Use Policy” means Patterns' acceptable use policy.
“Account” means Customer’s account in the applicable Service in which Customer stores and processes Customer Data.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
“Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. All Patterns Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Patterns without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
“Contractor” means the independent contractors and consultants permitted by Customer to serve as Users of the Service.
“Customer Data” means any data or data files of any type that are uploaded by or on behalf of Customer to the Service.
“Deliverables” means the configurations, code, or other deliverables that Patterns provides to Customer in connection with Technical Services. For clarity, Patterns may use compilers, assemblers, interpreters, and similar tools to develop Deliverables. The term “Deliverables” does not include such tools.
“Documentation” means Patterns' technical documentation and usage guides for the applicable Service made available at https://spatterns.app or through the Service.
“DPA” means the Customer Data Processing Addendum.
“Feedback” is defined in Section 4.1.
“Fees” means the fees payable by Customer for the applicable Service or Technical Services, as set forth in an Order Form or Statement of Work. For Technical Services, the term Fees also includes travel, lodging, meal and other expenses incurred in the course of providing Technical Services, but only if the applicable SOW specifies that expenses are reimbursable.
“Order Form” means the Patterns ordering document (and/or an SOW, if applicable) executed by both Customer and Patterns which specifies the services being provided by Patterns and that is governed by this Agreement.
“Security Addendum” means the Patterns Security Addendum.
“Service” means a Patterns software-as-a-service offering made generally available and ordered by Customer as set forth in an Order Form.
“Patterns” means Patterns Data Systems, Inc. or its Affiliate which executes an Order Form that is governed by this Agreement. Unless otherwise specified in the Order Form or this Agreement.
“Patterns Technology” is defined in Section 4.1.
“SOW” means a Statement of Work entered into between the parties and governed by this Agreement.
“Subscription Term” means the set term designated on an Order Form.
“Support Policy” means the Patterns Support Policy.
“Taxes” means taxes, levies, duties, or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Patterns.
*“Technical Services”8 shall mean the consulting, configuration or other professional services provided by Patterns to Customer under an Order Form or Statement of Work.
“Third Party Applications” means separate or third-party data, services or applications (and other consulting services related thereto) made available by Customer or to Customer that interoperate with the Service and are subject to an independent agreement or supplemental terms to this Agreement.
“Trial Terms” means the terms and conditions applicable to Trials.
“Usage Data” means usage and operations data in connection with the Customer’s use of the Service, including query logs and metadata (e.g., object definitions and properties).
“User” means the persons designated and granted access to the Service by or on behalf of Customer, including its and its Affiliates’ Contractors.
“VAT/GST Registration Number” means the value added tax/GST registration number of the business location(s) where Customer is legally registered and the ordered services are used for business use.