1. STRATADA SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Stratada will use commercially reasonable efforts to provide Customer the Services in accordance with Stratada’s standard practice. Employees and contractors to Customer’s corporate subsidiaries and affiliates shall be entitled to use the Services under Customer’s account.
1.2 Subject to the terms hereof, Stratada will provide Customer with reasonable technical support services.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Stratada or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Stratada hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Stratada ’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Stratada against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Stratada includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Stratada to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Stratada shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Stratada shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Stratada will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Stratada offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4 Some components of some Stratada custom visuals are derived from open source code. Stratada LLC maintains the required licensing attributions here: https://www.stratada.com/open-source-licenses/ and are incorporated by reference herein
4. PAYMENT OF FEES
4.1 Customer will pay Stratada the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall inform Stratada of the additional usage in a timely manner and be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Stratada reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Stratada has billed Customer incorrectly, Customer must contact Stratada no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Stratada’s customer support department.
4.2 Stratada shall bill for the Services through an invoice. Full payment for invoices issued in any given month must be received by Stratada forty-five (45) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Stratada ’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form. Customer may elect to renew this Agreement for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), by issuing a new Order Form to Stratada at least thirty (30) days prior to the end of the then-current term. If not renewed by Customer, this Agreement shall expire upon the expiration of the Initial Term or the then current term unless terminated earlier pursuant to this Agreement.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within such thirty (30) day period. Customer will pay in full for the Services up to and including the last day on which the Services are provided and Stratada shall refund any prepaid, unused fees for the Service after the last day on which the Services are provided. The final amount due from either party shall be the monthly fee pro rated to a daily amount. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, indemnity and limitations of liability.
5.3 Upon termination of the subscription, Customer must within 30 days remove all instances of the Stratada visual from any reports, including those maintained on-premises and in any cloud service such as PowerBI.com. Within 30 days of termination, Stratada must delete any Customer data or other proprietary Customer information.
6. WARRANTY AND DISCLAIMER
Stratada shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Stratada or by third-party providers, or because of other causes beyond Stratada s reasonable control, but Stratada shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Stratada does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and Stratada disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.
7. INDEMNITY
Stratada shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided Stratada is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Stratada will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Stratada , (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Stratada , (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Stratada to be infringing, Stratada shall, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
Notwithstanding anything to the contrary, except for bodily injury of a person and Stratada s obligations and liabilities pursuant to section 7 hereof (indemnity) which shall not be subject to any liability limit, cap or exclusion, Stratada and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond Stratada ’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid or payable by customer for the 12 month term during which the act that gave rise to the liability occurred, in each case, whether or not Stratada has been advised of the possibility of such damages.
Notwithstanding anything to the contrary, customer and its officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for any indirect, exemplary, incidental, special or consequential damages; (b) for any matter beyond customer’s reasonable control; or (c) for any amounts that, together with amounts associated with all other claims, exceed the fees paid or payable by customer to Stratada for the services under this agreement for the 12 month term during which the act that gave rise to the liability occurred, in each case, whether or not customer has been advised of the possibility of such damages.
9. MISCELLANEOUS
- 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, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications to this Agreement must be in a writing signed by both parties, except as otherwise provided herein.
- This Agreement will be governed solely by the laws of the State of Washington, without reference to its conflicts of law principles. The parties consent to the personal and exclusive jurisdiction of the federal and state courts located in the Western District of Washington.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Neither party may assign this Agreement or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger or acquisition of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
- Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an authorized representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
- The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
- Customer agrees that Customer’s breach of any provision of this Agreement will cause Stratada irreparable injury that is inadequately compensable in monetary damages and, thus, Stratada shall be entitled to seek injunctive relief in any court of competent jurisdiction against the breach or threatened breach of this Agreement, in addition to any other remedies in law or equity.