IMPORTANT – READ CAREFULLY: BY SIGNING UP FOR THE DATAGEKKO SERVICE, YOU ARE ACKNOWLEDGING THAT YOU ARE AUTHORIZED TO ENTER INTO THIS SERVICES AGREEMENT (“AGREEMENT”), AND IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY (“CUSTOMER”), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO BIND SUCH ENTITY AND AGREE TO ALL THE TERMS OF THIS AGREEMENT REGARDING CUSTOMER’S USE OF THE DATAGEKKO SERVICE. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO BIND THE CUSTOMER TO THIS AGREEMENT, DO NOT CLICK ON THE “I AGREE”, “I ACCEPT” OR SIMILAR BUTTON OR CLICK THE “I DISAGREE” BUTTON OR CLOSE THE WINDOW TO STOP CREATION OF THE DATAGEKKO ACCOUNT.
Subject to payment of applicable fees and compliance with this Agreement, DataGekko grants to Customer a non-exclusive, non-transferable, non-sublicenseable, revocable, limited license during the purchased Service Period to use the DataGekko Services for the online transportation of data as described in the Documentation. Usage of the DataGekko Services shall be limited to the DataGekko Service Selection specified in Customer’s Purchase Confirmation. DataGekko shall have a non-exclusive, non-transferable, worldwide, perpetual, irrevocable license to collect, analyze or use statistical data relating to its delivery of the DataGekko Service derived from the Customer Data, solely for the development, tuning, and scaling of the DataGekko Service, including the generation of reports for both internal use purposes as well as reports available to the Customer, which may be offered at an additional cost. DataGekko will keep all statistical data private, and will not share this data with any third parties (other than its agents and consultants performing services for DataGekko who are under contractual obligation to maintain the confidentiality of such information), except as an aggregate across multiple DataGekko end users (for example, advertising the total number of messages sent through the DataGekko Service per day) and multiple DataGekko customers to prevent the identification of such data as pertaining to any individual Customer and Customer’s end users. DataGekko’s use, collection and disclosure of the Customer Data shall comply with applicable law. It is the Customer’s responsibility to ensure that their Client Software is protected from the ability to transmit, install or impose upon Customer’s users any virus, malware, tracking software or system or other technique for the purpose of tracking users, behavioral targeting or any unlawful purpose.
Except as specifically provided in this Agreement, the license grant under this Agreement does not permit Customer or a third party (directly or indirectly, in whole or in part) to: (a) reverse engineer or attempt to derive the source code from or create derivative works of the DataGekko Service, or any portion thereof, except as expressly permitted by local law and in such case, solely upon prior written notice to DataGekko; (b) use the DataGekko Services in a greater capacity than identified in a Purchase Confirmation; (c) sublicense, distribute or pledge the DataGekko Services, (d) access, use, or copy any portion of the DataGekko Services to directly or indirectly to develop, promote or support any product or service that is competitive with the DataGekko Services, (e) lease, rent or commercially share or otherwise use the DataGekko Services for purposes of providing a service bureau or providing third party hosting, application service provider type services; (f) remove any identification, patent, trademark, copyright, or other notice from the DataGekko Services or Client Software; (g) interfere with or disrupt the integrity or performance of the DataGekko Services or third-party data contained therein; (h) attempt to gain unauthorized access to the DataGekko Services or the related systems or networks, including access to other DataGekko customer’s data; (i) disclose or publish, without DataGekko’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the DataGekko Services; (j) use any name, mark, or designation of DataGekko, or any of its affiliates or licensors or their respective products or services, unless expressly permitted herein or by DataGekko in writing; (k) use the DataGekko Services in connection with any activity for which may result in tangible or intangible property damage, or death or serious body injury; and (l) use the DataGekko Services including the transmission of Customer Data, in any manner that violates in any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign. Customer is responsible for processing and handling notices it receives from any third party claiming that Customer’s content is connection with the DataGekko Services violates such party’s rights including without limitation, notices pursuant to the Digital Millennium Copyright Act. DataGekko reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this Section 3.
Customer shall be responsible for ensuring that all Authorized Users are bound by the terms and conditions of this Agreement and the usage rights ordered under a Purchase Confirmation, and for the accuracy, quality, integrity and legality of Customer Data and of the means by which Customer acquires or has acquired Customer Data. Customer has sole control over the Customer Data uploaded in the DataGekko Services, and acknowledges DataGekko has no control of the Customer Data. Customer will ensure that each username and password issued to a Customer will be used only by an Authorized User. Customer is responsible for maintaining the confidentiality of all usernames and passwords. Customer is solely responsible for all activities that occur under these usernames. Customer agrees (a) to only allow Authorized Users to use its account, usernames or passwords, (b) to keep a current list of all Authorized Users, (c) to promptly notify DataGekko if it becomes aware, or should be aware, of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the DataGekko Service. DataGekko will not be liable for any loss or damage arising from unauthorized use of any accounts, usernames or passwords; (d) to promptly fix any bugs in Customer’s software that causes the DataGekko Services to be accessed incorrectly; for example, software that generates incorrect API calls to the DataGekko Service, and software that uses incorrect authentication tokens to access the DataGekko Service. DataGekko reserves the right to block, without liability, any Customer Data and Customer account that violates the terms of this Section 4. Customer shall be responsible for adhering to Usage Restrictions for DataGekko Service Selection in which the Customer has selected using the DataGekko Administration Portal.
The term of this Agreement shall begin upon acceptance of this Agreement as specified in the preamble and shall continue until the earlier of termination as set forth in Sections 5 (2), 5 (3) and 5 (4) below. A Service Period shall commence upon Customer’s completion of a Purchase Confirmation. Termination by Customer. The Customer may terminate the Agreement and the Service Period by sending an email to email@example.com Customer must terminate this Agreement and the Service Period at least thirty (30) days prior to the completion of the then current month (“Cancellation Period”). The Agreement and Service Period termination will be effective as of the first day of the following month. If cancellation is later than the Cancellation Period, Customer will be charged for one additional month of the DataGekko Service Selection.
Termination by DataGekko. DataGekko may terminate this Agreement and any Service Period, without cause, upon providing the other party with thirty (30) days prior written notice, except the notification period for Customer’s use of DataGekko Services provided free of charge, shall be fifteen (15) days. Termination for Breach. Either party may terminate this Agreement and the Service Period upon notice to the other party if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days of the original notice thereof or such other period as may be mutually agreed to by the parties, except the cure period for Customer use of a DataGekko Services provided free of charge, and for breaches of Section 2 and Section 3, shall be fifteen (15) days; provided further that in the event a breach is not curable, the non-breaching party may terminate on written notice. Effect of Termination. Upon expiration or termination of this Agreement, (a) the Service Period shall cease, and all license rights to use the DataGekko Services, Client Software and the Documentation shall cease, and DataGekko shall discontinue the provision of the DataGekko Services, and (b) Customer shall immediately pay any outstanding invoices, including fees owed for outstanding Service Periods as specified under Section 5.2 above. For the avoidance of doubt, Customer is responsible for usage and payment arising from continued calls to DataGekko APIs (even if a Customer key is disabled) after expiration or termination of this Agreement.
Service Level: DataGekko shall provide the different service level commitments commensurate with the Customer’s DataGekko Service Selection. DataGekko service levels are described on the DataGekko Offering Link.
During the Term, DataGekko may include Customer’s name and logo on a list of customers of the DataGekko Service.
The fees for each DataGekko Service Selection are as specified on the DataGekko Offering Link and on the DataGekko Administration Portal, and are subject to change at any time at DataGekko’s sole discretion. DataGekko Fees are comprised of any or all of the Service Tier charges. Payment: Customers are invoiced monthly for credit card payments and quarterly for payments made via wire transfer or ACH. If credit card payment is not received within fifteen (15) days of the invoice, or wire transfer or ACH payment is not received within thirty (30) days of the invoice, the DataGekko Service will be terminated. Billing Contact: DataGekko will send billing correspondence to the email address included in the online DataGekko Services registration page. Payment Disputes: In the event of a good faith dispute as to the calculation of a charge, Customer shall immediately give written notice to DataGekko stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by DataGekko of such partial payment shall not constitute a waiver of payment in full by DataGekko of the disputed amount. Any undisputed amounts not paid within fifteen (15) days of receipt shall accrue interest at a rate of one percent (1 1/2%) per month or the maximum lawful rate, whichever is less. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle DataGekko to suspend its provision of the DataGekko Service on ten (10) business days prior notice and require payment in advance until Customer account is paid in full. Customer may not setoff, deduct or otherwise withhold amounts due hereunder. The fees charged by DataGekko hereunder do not include any taxes, duties or charges of any kind. Customer will be responsible for all applicable sales, use, value added, goods and services, consumption, withholding, excise and any other similar taxes or federal, state, local taxes or other government taxes related to the payment under this Agreement (excluding taxes based on DataGekko’s net income). Refunds: No Refunds will be given.
Definition. The term “Confidential Information” means all information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) pursuant to this Agreement, which the Disclosing Party designates as confidential at the time of disclosure, or a reasonable person should know to be confidential. Notwithstanding the foregoing, the DataGekko Services, software (object code and source code), the Documentation, training materials, customer listings, future offerings and products, business plans, investors, pricing, including the fees paid hereunder, user IDs and passwords shall be deemed Confidential Information without any need to designate such information as confidential. Confidential Information shall not include any information which is: (i) already publicly known, (ii) created by the Receiving Party without reference to any Confidential Information, (iii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party, (iv) required to be publicly disclosed by law or court order, provided the Disclosing Party is given reasonable advance notice of the obligation to produce Confidential Information, or (v) is required by potential investors or necessary pursuant to acquisition or merger activity directly related to the Receiving Party, as part of the associated due diligence process. Confidential Information shall remain the sole property of the Disclosing Party, and each party acknowledges and agrees that it does not acquire any rights therein.
Protection of Confidential Information. The Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence and may only disclose such to employees and consultants on a need to know basis who are subject to confidentiality obligations substantially similar to those set forth in this Agreement. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as contemplated under this Agreement. Each party agrees to use the same level of care to protect the other party’s Confidential Information from unauthorized use or disclosure as it uses to protect its own such information, but in no event with less than reasonable care. Receiving Party shall, as soon as reasonably practical after discovery a breach of this Confidentiality section, report to the Disclosing Party any unauthorized use of, disclosure of or access to the Disclosing Party’s Confidential Information, subject to any reasonable restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident; and take all reasonable measures to prevent any further unauthorized disclosure or access. The parties shall be entitled to seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief shall not be exclusive remedy for any breach of confidentiality, but shall be in addition to all other rights and remedies available at law or in equity.
Limited Warranty. DataGekko warrants it has full power and authority to enter into and perform the Agreement. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY AS SET FORTH IN SECTION 10.1 THE DATAGEKKO SERVICES AND CLIENT SOFTWARE ARE PROVIDED “AS IS” AND ALL OTHER EXPRESS OR IMPLIED INDEMNITIES AND WARRANTIES ARE HEREBY DISCLAIMED WITH RESPECT TO THE DATAGEKKO SERVICES (INCLUDING THE CLIENT SOFTWARE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Customer Warranties Customer warrants that (a) it is a duly formed entity (i.e., corporation or limited liability company) in good standing under the laws of the state of its incorporation or organization; (b) it is qualified to transact business in all locations where the nature of its operations requires such qualification; (c) it has full power and authority to enter into and perform this Agreement; (d) the execution and delivery of this Agreement have been duly authorized; (e) Customer has all right necessary to provide, access and modify the Customer Data, including rights to grant the license to DataGekko as specified under Section 2.2, and to distribute such Customer Data across the Internet using the DataGekko Services; (f) the Customer Data does not violate any applicable law, including any law or regulation regarding the transmission of technical data exported from the United States or any other applicable country, any law or regulation regarding privacy rights, or any law or regulation regarding harassment or defamation or other tort; (g) Customer shall employ reasonable professional standards in performance of its rights and obligations under this Agreement, and shall avoid deceptive, misleading or unethical practices that may be detrimental to DataGekko or the DataGekko Services; (h) Customer will not access any information or data provided or controlled by any other end user of DataGekko and will abide by and will not circumvent or otherwise disable any security or data protection measures implement by DataGekko; and (i) Customer will not, and will not permit any third party to, upload, post, email transmit or otherwise make available using the DataGekko Services any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
DATAGEKKO’S AGGREGATE LIABILITY TO CUSTOMER, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CAUSE OF ACTION, SHALL BE LIMITED TO THE LESSER OF THE PRICE PAID OR DUE FOR THE DATAGEKKO SERVICES TO WHICH THE INCIDENT RELATES, OR $2,500. DATAGEKKO SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST INCOME, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGES FOR GOODWILL, PROCUREMENT OF SUBSTITUTE SERVICES, ARISING OUT OR IN ANY WAY RELATED TO THIS AGREEMENT, THE USE OR THE INABILITY TO USE THE DATAGEKKO SERVICES. IN NO EVENT SHALL DATAGEKKO BE LIABLE FOR ANY DAMAGES HOWEVER ARISING AS RELATED TO THE CLIENT SOFTWARE AS PROVIDED UNDER THIS AGREEMENT, EXCEPT AS SPECIFICALLY PERMITTED UNDER SECTION 13.1. EVEN IF ADVISED OF THE POSSIBILITY OF SUCH CLAIM. THESE LIMITATIONS WILL APPLY DESPITE THE FAILURE OF ESSENTIAL PURPOSE.
Customer Exclusive Remedies. If the DataGekko Services or any part thereof becomes the subject of a claim for infringement, or in DataGekko’s reasonable discretion is likely to become subject to such a claim, DataGekko will have the right, at its option, to: (i) replace either or both of the DataGekko Services and the Client Software with non-infringing technology that is materially, functionally equivalent or superior; (ii) modify the either or both of DataGekko Services and the Client Software so to become non-infringing without materially affecting functionality; or (iii) obtain a license for Customer to continue using either or both of the DataGekko Services and the Client Software. If (a) an injunction is issued by a court of competent jurisdiction barring Customer’s exercise of the license rights granted under this Agreement, or (b) the alternatives specified in (i), (ii) or (iii) above are not available to DataGekko on a commercially reasonable basis, then Customer will cease using the infringing technology and DataGekko will refund the pro-rata portion of the pre-paid fees attributable to such technology for the amount of the Service Period Customer is not able to use the DataGekko Services. This section states the entire liability and obligation of DataGekko, and the sole and exclusive remedy of Customer with respect to any alleged or actual infringement of the DataGekko Services (including the Client Software) provided under this Agreement.
Customer’s Indemnification. Customer agrees that Customer’s use of the DataGekko Services, and the use of the Customer Data and information that Customer places on the DataGekko Services site shall not: (a) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) include any illegal conduct or any violation any law, statute, ordinance or regulation (including without limitation those governing export control, dealer agreements, unfair competition, anti-discrimination or false advertising); or (c) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing or obscene. Customer shall indemnify, defend and hold DataGekko harmless from any third party claims including without limitation those claims arising from: (1) Customer’s breach of the subsections (a), (b) and (c) of this subsection; (2) breach of the warranties as set forth in Section 11; (3) modifications or alterations to the DataGekko Services; (4) any representations or warranties made by Customer regarding the DataGekko Services. DataGekko will promptly notify Customer in writing of such claim, and Customer shall have the sole control of such defense and all negotiations for any settlement or compromise, although DataGekko will provide reasonable assistance in the same at Customer’s request and expense.
Customer acknowledges and agrees that the DataGekko Services, the Client Software, and DataGekko’s trademarks, and all proprietary rights contained therein, as well as any modifications, enhancements or derivative works (including all feedback relating to the use of the DataGekko Services and the Client Software) relating thereto, are and will remain the exclusive property of DataGekko or its licensors. DataGekko reserves all rights not expressly granted to Customer in this Agreement. As between the parties, Customer retains all ownership in and to the Customer Data subject to the license granted under Section 2.2.
Entire Agreement. This Agreement, and any other references, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior and contemporaneous agreements and understandings between the parties concerning such subject matter. Any amendment shall be in writing and signed by authorized representatives of each party. If any one or more of the provisions of the Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other portions of this Agreement. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. The descriptive headings of the sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. DataGekko, at its sole discretion, reserves the right to modify the terms and conditions as set forth under this Agreement at any time. In such case, DataGekko shall notify (via email or other written communication) Customer of an updated Agreement available for online acceptance. DataGekko shall provide Customer with at least sixty (60) days to accept the terms of the updated agreement. Once accepted, the updated agreement shall govern the provision of DataGekko Services upon the commencement of a new month of DataGekko Services. Customer shall be required to accept the updated Agreement if it desires to continue to use the DataGekko Services.
Assignment. This Agreement, and any rights or obligations hereunder, shall not be assigned or sublicensed by Customer, including by operation of law, without prior written consent from DataGekko. DataGekko may assign this Agreement without the consent of the Customer. Any attempted assignment or transfer in violation of the foregoing shall be void and shall result in the immediate and automatic termination of this Agreement. Subject to this restriction, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
Force Majeure. Except for payment for fees due hereunder, neither party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war, riot, flood, civil commotion, severe weather conditions, unplanned system down time, or any other cause beyond the reasonable control of the party delayed. Export. DataGekko Services, Client Software and the Documentation are subject to EU export control laws, including without limitation the EU and its associated regulations and may be subject to export or import regulations of other countries. Customer hereby agrees that it will not export or re-export the DataGekko Services, Client Software or Documentation in any form in violation of any applicable export or import laws of any jurisdiction. Survival of Terms. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to confidentiality, limitation on liabilities, and indemnification, shall survive any termination or expiration of this Agreement and continue in full force and effect. Compliance with Laws. CUSTOMER REPRESENTS AND WARRANTS THAT IT SHALL COMPLY WITH THE U.S. FOREIGN CORRUPT PRACTICES ACT, UK BRIBERY ACT 2010, AND ALL APPLICABLE LOCAL ANTI-BRIBERY LAWS. Choice of law. This Agreement and any disputes related thereto shall be governed by and construed in accordance with the laws of Bosnia and Herzegovina as if performed wholly within that state and without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sales of Goods does not apply to this Agreement. The parties agree that the exclusive venue for any dispute arising hereunder shall be the federal or state located in the City of Sarajevo and the parties waive any objection to personal jurisdiction or venue in any forum located in that county. Relationship. This Agreement shall not be interpreted to create an agency or consignment relationship, and neither party is a partner, employee, agent or joint venture partner of, or with, the other. Neither party may make any contracts, warranties or representations or assume or create any other obligations, express or implied, in the other party’s name or on its behalf. Each party acknowledges that this Agreement is non-exclusive and either party may contract with third parties for the procurement or sale of comparable products or services.
Notices. All notices related to this Agreement shall be in writing. Notices will be effective if dispatched by hand (which shall be deemed given upon delivery), e-mail, or reliable overnight delivery service (which shall be deemed given on business day after mailing), unless otherwise stated in this Agreement, sent to the CEO of DataGekko, to DataGekko’s address as specified on www.datagekko.com, and the General Counsel of the Customer, to the respective address as set forth in the Customer’s online registration, unless otherwise indicated by a party subject to the requirements of this subsection. Waiver. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right. The descriptive headings of the sections of the Agreement and any attachments are inserted for convenience only and do not constitute a part of this Agreement.