BEFORE USING CONDUCTOR’S SEARCHLIGHT PLATFORM (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”) AND CONDUCTOR, INC. (“CONDUCTOR”). PURSUANT TO THESE TERMS, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE THE SEARCHLIGHT PLATFORM. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND CONDUCTOR, EFFECTIVE AS OF THE FIRST DATE OF MUTUAL EXECUTION OF THE ORDER FORM.
1. The Searchlight Platform. Conductor will make the Searchlight Platform available to (a) Customer and (b) individuals who are authorized by Customer to use the Searchlight Platform on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Conductor at Customer’s request), including employees, consultants, contractors, and agents of Customer (“Users”). Conductor hereby grants the Customer and its Users a limited, non-exclusive right to access the Searchlight Platform during the Subscription Term and in accordance with these Terms (including the specific access rights and limitations set forth in the Order Form) (the “Subscription”). Customer’s Subscription is not dependent on any future functionality or features (or any public comments or other disclosure made by Conductor with respect thereto). “Searchlight Platform” means the online, website platform application provided by Conductor via http://www.conductor.com or at such other designated URL as Conductor may assign from time to time (including all components thereof, on an individual and collective basis).
2. Subscription Term. Customer’s initial subscription term for the Searchlight Platform commences on the expected “Subscription Start Date” stated in the Order Form, or, if later or if none is provided in the Order Form, the day User login names and a password are issued to Customer to access the Searchlight Platform under the Order Form (the “Subscription Start Date”). The Subscription will continue for the “Subscription Term” specified in the Order Form (the “Subscription Term”) and may be renewed or terminate in accordance thereof. The Subscription is granted solely to the Customer and its Users, and not any other third parties (including any of Customer’s Affiliates), except as otherwise set forth in the Order Form. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of such party.
3. Confidentiality. As used herein, “Confidential Information” means all confidential information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“) that is designated in writing as confidential as well as the terms and conditions of the Order Form. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to injunctive relief.
4. Fees and Taxes. The Customer shall pay to Conductor all of the fees specified in the Order Forms. Except as otherwise provided in the Order Forms, all fees are quoted in United States currency; fees are based on Subscriptions purchased and not on actual usage; payment obligations are non-cancellable; and fees are non-refundable. Fees for the Searchlight Platform will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, fees are due within 30 days from the invoice date. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in these Terms), Conductor reserves the right to suspend the Searchlight Platform without liability to Conductor, until such account is paid in full. The Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, payable with respect to its purchases hereunder, other than Conductor’s income taxes. If Conductor pays any such taxes on the Customer’s behalf, the Customer agrees to reimburse Conductor for such payment unless the Customer provides Conductor with a valid exemption certificate authorized by the appropriate taxing authority.
5. Proprietary Rights. The Searchlight Platform and all intellectual property rights therein and all intellectual property rights relating to the provision of the Support are owned or licensed by Conductor. Except for the Subscription granted hereunder, nothing in these Terms gives the Customer any right, title or interest to the Searchlight Platform. Customer shall retain all right, title, and ownership in and to the reports generated through the use of the Searchlight Platform (the “Reports”.) Notwithstanding, Customer acknowledges that in generating the Reports, Conductor may use certain materials, products, algorithm processing, training material, best practices and other property that belongs to Conductor (“Conductor Property“). The parties agree that Conductor shall retain all right, title, and ownership in and to the Conductor Property, including all intellectual property rights pertaining thereto. Conductor hereby grants to Customer a royalty-free, worldwide, non-exclusive, temporary license to use the Conductor Property solely for internal business purposes. Customer shall not: (i) modify, translate, or create derivative works based on the Searchlight Platform; (ii) create any link to the Searchlight Platform or frame or mirror any content contained or accessible from the Searchlight Platform, (iii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Searchlight Platform; (iv) or access the Searchlight Platform in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Searchlight Platform.
6. Termination. The Subscriptions granted hereunder may be terminated by either party for cause: (a) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Termination shall not relieve Customer of the obligation to pay Conductor the fees agreed in the Order Form.
7. Surviving provisions. The following provisions shall survive any termination or expiration of the Subscription: Sections 3 to 20.
8. Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of these Terms.
9. Functionality Warranty. Conductor warrants that the Searchlight Platform will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable documentation provided by Conductor.
10. Security Warranty. Conductor has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Searchlight Platform at reputable third party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Conductor, whether by accident or otherwise.
11. Disclaimer. Except as expressly provided herein, Conductor disclaims warranties, whether expressed, implied, STATUTORY OR otherwise AND specifically disclaims all implied warranties including without limitation the conditions AND/or warranties of merchantability or fitness for any purpose to the maximum extent permitted by law. Conductor does not warrant that the Searchlight Platform will meet the Customer’s requirements or that the operation of the Searchlight Platform will be uninterrupted or error-free. Further, Conductor does not warrant that all errors in the Searchlight Platform can or will be corrected.
12. Customer’s Content. The Customer retains all right, title and interest in and to all Customer Content. Customer hereby grants Conductor a perpetual non-exclusive license to use for its own purposes the Customer Content and the data provided by Customer to Conductor in connection with the Searchlight Platform, other than personally identifiable information that may be considered private or sensitive. Such data may be used by Conductor for internal statistical and marketing reports in the aggregate or in statistical form only without disclosure of Customer’s Confidential Information. Upon written request by Customer made within 30 days after the effective date of termination, Conductor will provide Customer with temporary access to the Searchlight Platform so that Customer can retrieve its Customer Content. After such 30-day period, Conductor shall have no obligation to maintain or provide any Customer Content and shall thereafter, unless legally prohibited, delete all Customer Content in Conductor’s systems (the “Systems”) or otherwise in its possession or control.
13. Compliance with laws. Customer is responsible for User’s compliance with these Terms. Customer shall comply with all local, state, federal or foreign law applicable to the Customer in connection with the Customer Content and the use of the Searchlight Platform. Customer is responsible for the collection; legality protection and use of Customer Content as well the passwords and User credentials used in connection with the Searchlight Platform.
15. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL EXCEED THE TOTAL AMOUNT OF FEES PAID AND/OR DUE BY THE CUSTOMER.
16. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.
17. Conductor Indemnification. Conductor shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Searchlight Platform, as contemplated hereunder, infringes the intellectual property rights of a third party. Notwithstanding the foregoing if Conductor reasonably believes that the Customer’s use of any portion of the Searchlight Platform is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Conductor may, at its expense: (i) procure for the Customer the right to continue using the Searchlight Platform; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Searchlight Platform as set out herein. Conductor shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Searchlight Platform with other equipment or software not supplied by Conductor or in a manner not consistent with Conductor’s instructions. THIS SECTION 17 SETS FORTH CONDUCTOR’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
18. Customer Indemnification. The Customer agrees to indemnify and hold Conductor harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Conductor by a third party arising from or relating to Customer’s use of the Customer Content or the Searchlight Platform in violation of these Terms.
19. Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
20. General Provisions. These Terms, inclusive of the Order Forms and any amendments or additions thereto, constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and discussions with respect thereto. Customer agrees that Conductor may use Customer’s name and logo on Conductor’s website, and as a part of a general list of Conductor’s customers for use and reference in corporate, promotional and marketing literature. Additionally, Customer agrees that Conductor may issue a press release identifying Customer as a customer of Conductor in accordance with Customer’s standard guidelines. Customer agrees to be a reference for Conductor over the lifetime of the Subscription and, upon reasonable request from Conductor, play a role as keynote speaker or presenter at appropriate Conductor event. The parties are independent contractors. These Terms do not create a joint venture or partnership between the parties; no party is by virtue of these Terms authorized as an agent, employee or representative of the other party. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. The rights and obligations of the parties and all interpretations and performance of these Terms shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the County of New York in the State of New York, USA, and all courts competent to hear appeals there from. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms. Any notices under these Terms shall be in writing and shall be deemed to have been delivered: the next business day after sending by confirmed facsimile or email. Notices to Conductor shall be addressed to the CFO. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable, or shall be severed from these Terms, and all other provisions of these Terms shall remain in full force and effect.