Last Updated: November 12, 2020
MASTER SUBSCRIPTION AGREEMENT
This Master Subscription Agreement ("Agreement") contains the terms and conditions that govern your access to and use of the applicable Indent Service (defined below), and is a legally binding agreement between you ("Customer") and Indent Inc. ("Indent"). BY CLICKING "I ACCEPT," OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE INDENT SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE INDENT SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, EFFECTIVE UPON THE EARLIER OF (1) WHEN YOU FIRST ACCESS AND USE THE INDENT SERVICE, (2) THE DATE YOU CLICK "I ACCEPT" OR SIMILAR BUTTON OR CHECK BOX REFERENCING THIS AGREEMENT, OR (3) WHEN YOU ENTER INTO AN ORDER WITH INDENT ("EFFECTIVE DATE"). IF YOU DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE INDENT SERVICE. IF YOU ARE USING THE INDENT SERVICES ON BEHALF OF AN ENTITY OR ORGANIZATION THAT YOU REPRESENT:
(1) ALL REFERENCES TO "CUSTOMER" ARE TO THAT ENTITY OR ORGANIZATION; AND
(2) YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER.
- Indent Service. Subject to the terms and conditions of this Agreement (including timely payment of all applicable fees), Indent hereby grants Customer and Customer's Authorized Users the right to access and use the Indent services identified on (a) a mutually executed order between Indent and Customer or (b) the order completed and submitted by the Customer online through the Indent website (each, an "Order") ("Indent Service") solely in accordance with the terms of this Agreement for Customer's internal business purposes. "Authorized Users" means Customer's employees, up to the maximum numbers of permitted users set forth on the Order, if applicable.
- Indent Tools. Indent may make certain APIs or other software agents (together, "Indent Tools") available to Customer to support receipt of Customer Data from Customer Components. Customer's use of the Indent Tools is subject to this Agreement and any additional usage restrictions or limitations set forth in Indent's user documentation. If any source code is made available to Customer pursuant to an identified open source license, then such open source license governs Customer's use of such software.
- Customer Components. Subject to the terms of an Order, the Indent Service will support Customer's collection, management, and analysis of data generated by software, cloud-based or software-as-a-service offerings, systems, services, devices, and/or networks that Customer uses in its internal business operations, whether owned or licensed by Customer (together the "Customer Components"). As between Indent and Customer, Customer controls the Customer Components. By implementing a connection to a Customer Component, Customer hereby grants Indent the right to, and all authorizations necessary to, access and interoperate with that Customer Component as needed to provide the Indent Service. Customer is solely responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Customer Components and associated data.
- Restrictions. To the maximum extent permitted by applicable law, Customer will not, and will not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (ii) modify, copy, translate, adapt, or develop any derivative works based upon; (iii) sell, sublicense, transfer any rights in, use for the benefit of any third party, or allow access to unauthorized persons to; (iv) transmit unlawful, infringing or harmful data or code to or from; (v) access in order to build a competitive service or reproduce features of; (vi) use to violate the rights of any person; (vii) use in violation of any use limitations set forth in the applicable Order; or (viii) otherwise use except as expressly permitted hereunder, in each case of (i) – (viii), the Indent Service (including all technology constituting or used to provide such service), Indent Tools or Work Product, as applicable (collectively, "Indent Technology").
- Professional Services. If Indent and Customer enter into a mutually executed statement of work ("SOW") for professional services ("Professional Services") then, subject to Customer's timely payment of applicable Professional Service Fees, Indent will use commercially reasonable efforts to provide the Professional Services to Customer in accordance with the SOW. Except as expressly set forth herein, Indent retains all right, title and interest in the work product resulting from the Professional Services ("Work Product"), except that Customer will retain its pre-existing rights in any documents, data, or other materials provided to Indent by Customer in connection with the Professional Services ("Customer Materials"). Customer hereby grants Indent a non-exclusive license to use the Customer Materials to the extent necessary to provide the Professional Services. Indent hereby grants Customer a non-exclusive, non-transferable license to use, perform, display, execute, reproduce, transmit, modify (including to create derivative works) the Work Product solely for Customer's internal business purposes.
- Trial Services. If you are accessing the Indent Service on a free, trial, proof of concept, or other evaluation basis, then then Indent hereby grants Customer the right to access and use the Indent Service solely until the earliest of: (a) the end of the period specified in the applicable Order; (b) the start date of any paid Order between Customer and Indent for the applicable Indent Service; or (c) termination by Indent, at any time, in its sole discretion (the "Trial Period"). Upon expiration of the Trial Period, your right to access the Indent Service will terminate. Additional terms and conditions may apply to free trials and Customer agrees any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding ("Free Trial Terms"). Your use of the Indent Service during the Trial Period will be subject to this Agreement in all respects, provided that in the event of a conflict between this Agreement and the Free Trial Terms, the Free Trial Terms will prevail. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT OR AN ORDER, DURING THE TRIAL PERIOD, THE INDENT SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND.
- Fees. Customer will pay Indent the fees ("Fees") of the type, amount and payment schedule set forth in each Order and/or SOW, as applicable, which may include without limitation subscription and other fees for the Indent Service ("Subscription Fee") and fees for Professional Services ("Professional Service Fee"). Indent may increase the Fees upon written notice to Customer 60 days prior to expiration of the then-current Term and such increase will become effective upon commencement of the subsequent Renewal term. All Fees are non-refundable.
- Payment Terms. Unless otherwise set forth on an Order, initial Subscription Fees are due and payable in United States dollars within 30 days after the date of your Order, and Subscription Fees for each Renewal Term are due within 30 days of the start of each Renewal Term. Professional Service Fees are payable pursuant to the applicable SOW. Interest accrues from the due date at the lesser rate of 1.5% per month or the highest rate allowed by law.
- Credit Card Authorization. If Customer is paying Fees using a credit card or any digital payment method supported by Indent, Customer hereby authorizes Indent, or its third-party payment processor, to charge Customer's account for the Indent Service using that payment method on a going-forward basis until termination of this Agreement. Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid. If Customer fails to keep its billing information up-to-date, Indent may immediately suspend use and access to the Indent Service. Notice (including email) from Indent's third-party payment processor declining Customer's credit card or otherwise relating to Customer's account will be deemed valid notice from Indent.
- Taxes. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Indent's net income).
- Term. This Agreement will start on the Effective Date and, unless terminated earlier in accordance with this Agreement, will continue until the last to expire or terminate Order or SOW hereunder. Each SOW will, unless terminated earlier in accordance with the terms hereof, continue for the term set forth in such SOW and will not automatically renew. Each Order will start on the date specified on such Order, and, unless terminated earlier in accordance with the terms hereof, will continue until the expiration of the initial term ("Initial Term") specified in such Order. Thereafter, each such Order will automatically renew for immediately successive renewal term(s) (each, a "Renewal Term ," and together with the Initial Term, the "Term") of the same duration as the then immediately preceding term, unless either party provides written notice of non-renewal at least 30 days before the expiration of the then applicable term.
- Termination. Indent may terminate this Agreement, or any individual Order or SOW, by written notice if any of the following occurs: (i) Customer fails to pay within no more than 10 days after written notice of nonpayment any amounts owed Indent; or (ii) except as set forth in (i), Customer is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (iii) Customer files for or is adjudicated bankrupt or suffers any other analogous event. Notwithstanding the foregoing, Indent may immediately suspend the Indent Service if it reasonably determines that continued use may result in harm to Indent or in a breach or violation of applicable law or rights of a third party, until such condition is removed.
- Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders, SOWs, and access to Indent Technology will automatically terminate; and (ii) all outstanding payment obligations of Customer become due and payable immediately. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.4 (Restrictions), 3.3 (Effect of Termination), 4 (Confidentiality), 5 (Ownership; Data), 6 (Indemnification), 7 (Limitation of Liability), and 8 (General).
- Definition. "Confidential Information" means any information disclosed directly or indirectly by one party ("Disclosing Party") to the other party ("Receiving Party") pursuant to this Agreement that is either designated as "confidential" or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party's possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party's contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party's Confidential Information. For clarity, Customer Data is not Confidential Information for purposes of this Section 4, and Indent's use of Customer will be governed by Section 5.
- Use; Maintenance. Neither party will use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party will disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party's Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment.
- Reservation of Rights. Except for the limited rights granted in this Agreement, Indent retains all right, title and interest, including all intellectual property rights, in and to the Indent Technology.
- Customer Data. Customer retains all right, title and interest in and to the Customer Data. "Customer Data" means any data provided by Customer to Indent for use in connection with the provision of the Indent Service, including data collected by Indent from a Customer Component. Customer Data does not include any public domain or publicly available data, any materials provided by or on behalf of Indent or data independently derived by Indent. Customer hereby grants Indent the right to process, transmit, store or otherwise use Customer Data to provide, support, and improve the Indent Service. Customer will obtain all permissions or approvals from each Customer Component or other applicable data source as may be necessary or required to provide the Customer Data to Indent in connection with the delivery of the Indent Service and Customer is solely responsible for (i) complying with any privacy and data protection laws and regulations applicable to Customer Data and Customer's use of the Indent Service, and (ii) for maintaining its equipment, the timely transmission of Customer Data, and the accuracy, quality, integrity, and reliability of Customer Data.
- Usage Data. Customer agrees that Indent may collect, create, use, and disclose aggregated or deidentified data derived from Customer's configuration and use of the Indent Service, Indent's provision of the Indent Service, or Customer Data (collectively, "Usage Data") for Indent's business purposes, including without limitation to develop new products and features, and to promote Indent's services, provided that Usage Data will be in an aggregated or otherwise deidentified form only and will not identify Customer or its Authorized Users.
- Feedback. If Customer (including any of its Authorized Users) submits, orally or in writing, suggestions or recommended changes to the Indent Technology, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Indent is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.
- By Indent. Indent will (a) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer's use of the Indent Service as authorized in this Agreement infringes or misappropriates the U.S. patent, copyright, trade secret, or trademark of any third party, and (b) pay, subject to the limitations set forth in Section 7, damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Indent; provided that Customer provides Indent (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Indent in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, Indent may, at its sole option and expense: (w) procure for Customer the right to continue to use the applicable Indent Service; (x) modify the Indent Service to make it non-infringing; (y) replace the Indent Service with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the applicable Indent Service or this Agreement and refund any prepaid Fees for use of the affected Indent Service. Notwithstanding the foregoing, Indent will have no liability under this Section for any claim arising out of or based upon Customer's use of the Indent Service in combination with software, products or services not provided by Indent (including any Customer Component), Indent's use of Customer Data, or Customer's failure to use the Indent Service in accordance with this Agreement.
- Disclaimer. SECTION 6.1 STATES THE ENTIRE LIABILITY OF INDENT, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY INDENT OR ITS SERVICE OR TECHNOLOGY OR ANY PART THEREOF.
- By Customer. Notwithstanding anything to the contrary in Section 6.1, Customer will defend or, at its option, settle, any claim brought against Indent alleging that the use of the Customer Data by Indent or interconnection of the Indent Service with a Customer Component as permitted or contemplated by this Agreement violates any third party's rights or applicable laws, and Customer will pay damages finally awarded against Indent (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer; provided that Indent provides Customer with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Indent may appear, at its own expense, through counsel reasonably acceptable to Customer.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, INDENT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. INDENT DOES NOT WARRANT THAT THE INDENT SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA.
- Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER'S PAYMENT OBLIGATIONS, NEITHER PARTY'S TOTAL LIABILITY (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
- Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party, except that Indent may assign this Agreement without the written consent of Customer as part of a corporate reorganization, change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
- Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, epidemic, or other viral outbreak, governmental act or failure of the Internet. The delayed party will give the other party notice of such cause and will use its reasonable commercial efforts to correct such failure or delay in performance.
- Governing Law. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.
- U.S. Government Customers. The Indent Technology is provided to the U.S. Government as "commercial items," "commercial computer software," "commercial computer software documentation," and "technical data" (as those terms are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement) with the same rights and restrictions generally applicable to the Indent Technology. If Customer or any Authorized User is using Indent Technology on behalf of the U.S. Government and these terms fail to meet the U.S. Government's needs or are inconsistent in any respect with federal law, Customer and its Authorized Users must immediately discontinue use of the Indent Technology.
- Miscellaneous. This Agreement (together with any Orders, and/or SOWs hereto) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence will apply: this Agreement, Order, and SOW. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Indent to object to such terms. Any ambiguity in this Agreement will be interpreted equitably without regard to which party drafted hereof. This Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice will be given in writing by customary means with receipt confirmed via email or at the address of each party set forth above, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person or by email, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the mail. The relationship between the parties will be that of independent contractors. Indent may use subcontractors. Customer's affiliates may enter into separate Orders under this Agreement; provided that Customer and its affiliates will be jointly and severally liable for compliance with this Agreement. An "affiliate" is an entity that is controlled by another entity where control means ownership of more than 50% of voting securities entitled to elect managing authority. Waiver of any term of this Agreement or forbearance to enforce any term by either party will not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void will be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. Customer agrees to comply with all applicable export control laws and regulations related to its use of Indent Technology. Indent may list Customer as a customer in its promotional and marketing materials, including its website.