These terms of service (“TOS”), along with an order form that: (a) specifically refers to these TOS; and (b) is signed by both Parties, (the “Order Form”) together comprise an agreement for services (collectively, the “Agreement”) between the customer listed in the applicable Order Form (“you” or the “Customer”) and Indagari, Inc. (“Indagari”). For the purposes of this Agreement, the terms “Indagari” and “Customer” include all their respective Affiliates. “Affiliate” means, with respect to a party, any entity which directly or indirectly, through one or more intermediaries, is controlled by, or is under common control with such party. In consideration of the mutual covenants and promises contained in these TOS, Indagari and the Customer agree as follows:
1. Access to the Service.
If you pay all applicable fees when due, Indagari shall provide you with (i) access to and use of the services specified in the Order Form (the “Service”) in accordance with these TOS and any then-current standard user operating instructions and requirements made available to you from time-to-time, (“Specifications”); and (ii) a license to use any Deliverables supplied hereunder. Indagari shall perform the Service in compliance with all applicable law, rule, regulation, ordinance, code or order generally applicable to the provision of the Service.
2. Intellectual Property.
You are not acquiring a copyright, patent or other intellectual property right in any Service, Deliverable or Specifications, or in any data, modifications, customizations, enhancements, changes or work product related thereto. “Deliverable” means with respect to each Service all data, files, documents, reports, statements, extracts and other work product created by the Service and delivered to you as part of the Service (whether tangible or intangible). Any intellectual property rights that existed prior to the Effective Date of the Agreement shall belong solely to the party owning them at that time. Neither party shall be entitled to any copyright, trademark, trade name, trade secret or patent of the other party. You must not alter, obscure or revise any proprietary, restrictive, trademark or copyright notice included with, affixed to, or displayed in, on or by a Service, Third-Party Service or Deliverable.
3. Restrictions on Use.
You may not use the Service for any illegal purpose, for the facilitation of the violation of any law or regulation, or in any manner inconsistent with the TOS. You agree not to use, transfer, distribute, or dispose of any information contained in the Service in any manner that could compete with the business of Indagari or any of its suppliers.
Customer represents, warrants and covenants that it will not use the Service or any derivative thereof for any purposes beyond the permitted activities identified on the Order Form. Without limiting the foregoing and except as expressly permitted in an Order Form, Customer will not, at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Service or any derivative thereof, in whole or in part; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or resell or otherwise make available the Service or any derivative thereof; (iii) remove any proprietary notices from the Service or any derivative thereof; (iv) use the Service or any derivative thereof in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates Applicable Law; or (v) reverse engineer, identify, re-identify, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Service or any derivative thereof, in whole or in part (including, without limitation, to derive Personally Identifiable Information from, or merge Personally Identifiable Information with, any non-Personally Identifiable Information provided by Indagari, or attempt to determine the identity of any data subjects or, consumers (or such other similar term, as defined in applicable Law) from the Service). Customer will not resell or make available the Service or any derivative thereof for any third party, except as expressly permitted in an Order Form.
You may neither take nor attempt any action that, in the sole discretion of Indagari, imposes or may impose an unreasonable or disproportionately large load or burden on the Service or the infrastructure of the Service. You shall not use or attempt to use any “scraper,” “robot,” “bot,” “spider,” “data mining,” “computer code,” or any other automate device, program, tool, algorithm, process or methodology to access, acquire, copy, or monitor any portion of the Service, any data or content found on or accessed through the Service, or any other Service information without the prior express written consent of Indagari. You may not forge headers or otherwise manipulate identifiers in order to disguise the origin of any other content.
The Service shall not be accessed, delivered, used or processed outside of the United States, Canada, European Union, United Kingdom, India, and Israel.
4. Fees and Payments.
In consideration of Indagari’s performance of its obligations hereunder, you will pay the fees specified in an applicable Order Form (the “Fees”). Indagari may, in its sole discretion, increase or otherwise modify the Fees at each renewal period, as applicable, while this Agreement is in effect by providing you with thirty (30) days prior notice of any such change. If you do not agree to the changed Fees, you may exercise your right not to renew the Agreement for an additional renewal period. Except as otherwise stated in an Order Form, you agree to pay all Fees on the invoice within thirty (30) days of receipt of the invoice.
You will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes directly applicable to you (“Taxes”). You are responsible for paying all Taxes, excluding only taxes based on Indagari's net income.
5. Confidentiality.
Each party shall treat information received from the other that is designated as “confidential” at or prior to disclosure (“Confidential Information”) as strictly confidential. Each party designates its intellectual property, customer lists, business contacts, business plans, policies, procedures, techniques, know-how, standards, products, source or object code, product or service specifications, manuals, agreements, economic and financial information, marketing plans, data, reports, analyses, compilations, statistics, summaries, studies, and any other tangible or intangible information or any materials based thereon, furnished to the other party as Confidential Information of such disclosing party.
Each party shall: (i) restrict disclosure of the other party’s Confidential Information to employees, agents and Affiliates solely on a “need to know” basis in accordance with the Agreement; (ii) advise its employees and agents of their confidentiality obligations; (iii) require agents to protect and restrict the use of the other party’s Confidential Information; (iv) use the same degree of care to protect the other party’s Confidential Information as it uses to safeguard its own Confidential Information of similar importance, but in no event less than a reasonable degree of care; and (v) notify the other party of any unauthorized possession or use of its Confidential Information promptly following confirmation of that unauthorized use or possession.
6. Limitations of Liability.
Waiver of Consequential Damages. EXCEPT WITH RESPECT TO A PARTY’S WILLFUL MISCONDUCT OR FRAUD OR BREACH OF ITS CONFIDENTIALLY OBLIGATION HEREUNDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, OR ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
Limitation of Monetary Damages. Except for a party’s (a) indemnification obligations under this Agreement; (b) liability arising from such party’s gross negligence, fraud or willful misconduct; and (c) a breach of its confidentiality obligation under this Agreement, and in all cases subject to this Section 6, the maximum aggregate liability of a party to the other party for all claims arising out of or relating to this Agreement, regardless of the form of any such claim, shall not exceed a sum equal to the amounts paid or payable by you to Indagari during the one (1) year period immediately prior to the event giving rise to such liability.
7. Indemnification.
Indagari shall, subject to Section 6, indemnify and hold you harmless, from and against any claim against you by reason of your use of the Service as permitted hereunder, brought by a third party alleging that the Service infringe or misappropriate a third party’s valid United States patent, copyright, trademark or trade secret. Indagari shall, at its expense, defend such claim and pay damages finally awarded against you in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Indagari for such defense. If the Service, or parts thereof, become, or in Indagari's opinion may become, the subject of an infringement claim, Indagari may, at its option: (i) procure for you the right to continue using the Service as set forth herein; (ii) replace or modify the Service to make it non-infringing, provided such replacement or modification does not compromise Indagari’s obligations under this Agreement; or (iii) if options (i) or (ii) are not commercially and reasonably practicable as determined by Indagari, terminate this Agreement and the applicable Order and pay you a pro-rated refund of any fees paid in advance for the Service. THIS SECTION STATES INDAGARI’S ENTIRE LIABILITY AND YOUR SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE.
The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
8. Suspension and Termination.
Indagari may suspend its Service under this Agreement at any time if the Customer’s use of the Service is in breach of any of the limitations, restrictions or obligations set forth herein. Such action will not limit any of Indagari’s other rights or remedies at law or in equity.
In addition to any other remedies, either party may terminate the Agreement, a Service if the other party: (i) is subject to a dissolution, reorganization, insolvency or bankruptcy action; (ii) suffers the appointment of a receiver, conservator or trustee; (iii) commits any act related to the Service with the intent to defraud the other party; or (iv) discontinues performance under the Agreement because of a binding order of a court or regulatory body.
9. Third-Party Beneficiaries.
You acknowledge and agree that Affinity Solutions, Inc. ("Affinity Solutions") shall be a third-party beneficiary of this Agreement. As a third-party beneficiary, Affinity Solutions will have the right to enforce the provisions of this Agreement, to the extent the terms are related to the use of its data and services.
10. Governing Law.
The TOS shall be governed and construed in accordance with the laws of the United States and the State of California, without giving effect to conflicts-of-law principles thereof. With respect to any disputes or claims not subject to arbitration, you agree to submit to the personal jurisdiction of the state and federal courts located in San Mateo County in the State of California with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the TOS.
11. Customer Eligibility Criteria.
By accepting these TOS you, the Customer, are confirming that you are not: (i) a major institutional investor in accordance with the definition stated in SEC Rule 15a-6 as any institutional investor with total assets or assets under management in excess of one hundred million dollars ($100,000,000) whose primary business is trading securities or recommending securities for trading, (ii) operating in a Restricted Industry, as defined below and (iii) legally formed outside of United States, Canada, European Union, United Kingdom, India, and Israel.
“Restricted Industry” is defined as: (i) any Person listed as a Specifically Designated National or Blocked Person by the United States Department of Treasury Office of Foreign Asset Control (OFAC) (see for reference https://sanctionssearch.ofac.treas.gov/) or on the UK Sanctions List on the UK Government website https://www.gov.uk/government/publications/the-uk-sanctions-list, (ii) any Person on any Alert List, (iii) any Person operating out of a residence (home based), (iv) any Person acting as a marijuana dispensary, (v) any Person providing inappropriate adult content websites and/or adult type telephone, dating, or escort services, (vi) any Person that is a weapons dealer, seller or distributor with the exception of national brand retailers who may sell recreational firearms (e.g., Bass Pro Shops, Walmart, etc.), (vii) any Person engaged in the business of any “Restricted Industry”, (viii) any Person that competes with Affinity Solutions, including 1010Data, American Express, Argus/Verisk, Facteus /ARM Insights, Cardlytics, 15 Commerce Signals/Verisk, Earnest Research, Bloomberg, MasterCard, MScience, Nielsen, Second Measure, Fable Data, Visa and Yodlee, (ix) any Investment Companies (including hedge funds), (x) any Person engaged in the sale or distribution of explosives, weapons, illegal drugs/pharmaceuticals, shocking/sensational/disrespectful or violent content, (xi) any Person primarily engaged in the manufacture, sale or distribution of tobacco and nicotine, (xii) any Person engaged in illegal gambling, or (xiii) any Person which is a reseller of (a) the Service, (b) the Derivative Products, and/or (c) any other services and/or products incorporating the Service and/or the Derivative Products, (xiv) any agency of a foreign government, (xv) for any purpose contemplated by the Fair Credit Reporting Act.
12. Miscellaneous.
You accept that the Indagari has the right to change the content or technical specifications of any aspect of the Service at any time at the Indagari’s sole discretion. You further accept that such changes may result in your being unable to access the Service. The failure of Indagari to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. Sections 1, 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, and 14 shall survive any termination of the TOS. Neither party shall assign, subrogate or transfer any interest, obligation or right arising out of the Agreement without prior written consent from the other party; provided however that no consent is necessary in the event of an assignment due to a consolidation, merger, transfer or reorganization of a majority of the assets or stock of a party provided that the assignee agrees in writing to be bound by the Agreement. Subject to the foregoing, the terms of the Agreement shall be binding upon and inure to the benefit of permitted successors and assigns. The section titles in the TOS are used solely for the convenience of you and Indagari and have no legal or contractual significance. If any provision of the TOS is found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of the TOS will remain in force.
13. Entire Agreement.
The TOS and any other terms and conditions of service on this site, and its successor, constitute the entire agreement between you and Indagari govern your use of the Service, and supersede all prior or contemporaneous written or oral agreements between the parties with respect to the subject matter hereof. These TOS may not be amended, nor any obligation waived, without Indagari’s written authorization.
14. Notices.
All notices must be in writing and delivered via email or overnight delivery to Indagari at the address set forth below and to you at the billing address set forth in the Order Form. A party must provide thirty (30) days prior written notice before changing the address from which it provides or receives Service.
Indagari, Inc.
530 Barron Street, Menlo Park, CA, 94025.
support@indagari.com
