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Master Services Agreement

 

 

  1. Parties. This Master Services Agreement (this “Master Agreement”) is entered into by Customer (as defined in the Service Orders, Statements of Work or other ordering documents (each, an “Order Form”) that this Master Agreement governs) and Dataminr, Inc. (“Dataminr”). Customer must execute at least one Order Form to purchase access to the Services (as defined below). This Master Agreement and all Order Forms entered into by the parties pursuant to this Master Agreement are collectively referred to herein as the “Agreement.”
  2. Description of Services. Dataminr and its Affiliates provide software-as-a-service solutions that provide, among other things, event-based alerts (“Alerts”) sourced from publicly available data, information and materials (collectively, the “Third Party Materials”) deliverable to users via multiple mechanisms, including the Dataminr dashboard, the Dataminr mobile app, emails and popup notifications, and incident management planning and response capabilities (collectively, the “Services”).
  3. Provision of Services.
    1. Customer’s Affiliates may purchase access to Services under the terms and conditions of this Master Agreement by mutually executing an Order Form with Dataminr; provided that Customer shall remain responsible for its Affiliates’ compliance with all of the terms and conditions of this Agreement. An “Affiliate” is an entity that controls, controlled by, or is under common control with a party.
    2. Subject to all terms and conditions herein and compliance therewith, (i) Dataminr will make the Services available to Customer in accordance with this Agreement, and (ii) Customer’s Authorized Users (as defined below) may access and use the Services solely for the purposes permitted herein. An “Authorized User” is an employee of Customer or Customer’s Affiliate (if such Affiliate has executed an Order Form with Dataminr) authorized to use the Services in accordance with this Agreement, the applicable Order Form and the applicable license type set forth in the Order Form (the “License Type”), and who has been supplied a username and password for the Services (collectively, “Authentication Credentials”). Customer shall be fully responsible for each Authorized User’s use of the Services and shall indemnify Dataminr from any liability incurred by Dataminr as a result of an Authorized User’s breach of this Agreement.
    3. The Services are subject to the following License Type definitions:
      1. “Individual Use License” means a license that is provided to a specific Authorized User. Authentication Credentials are personal to each Authorized User and may not be shared with or used by more than one person. Customer may transfer an Individual Use License from one Authorized User to another from time to time, provided that the number of Authorized Users shall not exceed the number of Individual Use Licenses purchased under the applicable Order Form. For the avoidance of doubt, an Individual Use License may not be associated with a shared email address or shared email inbox.
      2. “Shared License” means a license that is provided to a specific Authorized User for the purposes of using shared Authentication Credentials to access the Services. Customer will receive the number of shared Authentication Credentials set forth in the Order Form. No more than five (5) Authorized Users may concurrently use the shared Authentication Credentials at a time. The shared Authentication Credentials may only be used by Authorized Users within Customer’s business unit specified in the Order Form. Individuals accessing the Services via shared Authentication Credentials will not receive email Alerts.
      3. “Unlimited License” means a license that permits the Customer or business unit of Customer (as set forth in the applicable Order Form) to designate any of its personnel, subject to any restrictions set forth in the Order Form, as Authorized Users. Authentication Credentials are personal to each Authorized User and may not be shared with or used by more than one person. Authentication Credentials may not be shared with or provided to any individual other than such Authorized Users.
    4. Each Authorized User may need to register for an account to access the Services. All Authorized Users shall provide an email address associated with Customer’s domain name. Customer shall and shall ensure that its Authorized Users provide accurate, current and complete account information and promptly update this information if it should change. Customer shall, or shall request that Dataminr, promptly deactivate the Authentication Credentials of any Authorized User that is no longer employed or engaged with Customer. Customer will be responsible for the confidentiality and use of all of its Authentication Credentials.
  1. Service Levels. Dataminr shall provide the Services in accordance with the Service Level Agreement (“SLA”) available at dataminr.com/legal/sla.
  2. Third Party Materials. Customer acknowledges and agrees that Customer’s use of the Third Party Materials is subject to (and Customer agrees it is bound by) the third party terms and conditions detailed in Exhibit A (collectively, the “Third Party Terms”). The Third Party Terms may be modified from time to time by Dataminr’s third party licensors and data vendors. Such Third Party Terms are hereby incorporated into this Agreement. Customer acknowledges that Dataminr does not own, create or control the Third Party Materials and that the Third Party Materials delivered to Customer by the Services may include content that is objectionable to Customer or its Authorized Users. Dataminr disclaims and makes no representation or warranty with respect to the Third Party Materials or any portion thereof and assumes no liability for any claim that may arise with respect to the Third Party Materials or Customer’s use, misuse or inability to use the same.
  3. Restrictions. Customer will not use or make available the Services in a manner that allows any person or entity other than its Authorized Users to access or use the Services or any Third-Party Materials provided through the Services or otherwise permit unauthorized access to the Services. Customer shall not, and shall ensure that its Authorized Users do not: (a) allow access to the Services by any persons other than Authorized Users and for any purposes other than internal business use; (b) forward Alerts to non-Authorized Users, including in a bulk, systematic, programmatic or automated manner; (c) disassemble, decompile, reverse engineer, or translate any software related to the Services, or otherwise attempt to discover any such software source code, object code, or underlying proprietary information, except to the extent that such restriction is prohibited by applicable law; (d) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (e) transmit in any Services or Third Party Materials, viruses, Trojan horses, worms, time bombs, corrupted files, or other computer programing routines intended to detrimentally interfere with or expropriate any systems, data, personal information, or property of another (and upon discovery of any such transmission, Customer shall immediately inform Dataminr of said transmission at legal@dataminr.com and Customer shall cooperate in good faith to remedy and limit the harm and injury done by said transmission); (f) access the Services or Third Party Materials in order to build a similar or competitive product or service to the Services or Dataminr’s third party licensors and data vendors’ services and/or products; (g) use the Services, by itself or in conjunction with other data sources, in any way including without limitation through data brokers or any other advertising or monetization services, to target individuals; (h) use the Services to violate the rights of others; or (i) use the Services or the Third Party Materials in violation of any applicable laws. During the Term, Dataminr or its representatives may, in Dataminr’s sole discretion, evaluate Customer’s compliance with this Section including any Authorized User and License Type limitations specified in an applicable Order Form. Customer shall provide access to records and information requested by Dataminr related to Customer’s use of the Services. If any such evaluation reveals that Customer has exceeded the limitations specified in the applicable Order Form, then as a non-exclusive remedy, Dataminr may invoice Customer for, and Customer will pay, such additional fees as are determined to be payable, based on Dataminr’s then current list prices for Customer’s excess use.
  4. Term. Unless earlier terminated, this Agreement shall commence upon the date that the first Order Form entered into pursuant to this Master Agreement is executed and shall continue in full force and effect until all outstanding Order Forms are completed, expired, or terminated in accordance herewith (the “Term”).
  5. Fees. Customer shall pay Dataminr the fees set forth on each applicable Order Form (the “Fees”) in accordance with this Section. Except as otherwise specified on an applicable Order Form, Fees due under an Order Form will be invoiced upon execution of such Order Form. Fees are due within thirty (30) days of the date of the invoice. Any Fees past due hereunder shall bear interest at a rate of 1.5% per month (or, if lower, the maximum rate permitted by applicable law). Except where expressly stated otherwise, all Fees paid to Dataminr hereunder are nonrefundable. Any amounts payable hereunder are exclusive of all sales taxes, value added taxes, duties, use taxes, withholdings and other governmental assessments. Customer shall pay all such taxes and governmental assessments associated with the Services (excluding any taxes based on Dataminr’s net income, property, or employees), unless Customer provides to Dataminr a valid tax-exempt certificate.
  6. Suspension. Dataminr may suspend access to the Services upon Customer’s violation of this Agreement (including any Order Form or the Third Party Terms) or if Dataminr reasonably determines that Customer is using the Services or the Third Party Materials in violation of applicable law or in an unauthorized or fraudulent manner; provided, however, that Dataminr shall provide Customer with notice of such suspension and allow Customer seven (7) days to cure such breach, to the extent such breach is curable. Dataminr will restore Customer’s access to the Services after the reason for the suspension has been resolved. Customer shall be responsible for any Fees accrued during any period of suspension.
  7. Termination. Without limiting the foregoing, either party may terminate this Master Agreement or an applicable Order Form by written notice to the other party in the event that such other party materially breaches this Master Agreement or the Order Form and does not cure the breach within thirty (30) days of such notice, to the extent such breach is curable. Termination of one Order Form shall not automatically result in the termination of any other Order Form. Termination of this Agreement as a whole shall result in the termination of all Order Forms. Upon termination of this Master Agreement or an Order Form, the rights and licenses granted to Customer under this Master Agreement or such Order Form, as applicable, shall terminate and Customer shall immediately cease use of the applicable Services and Third Party Materials. Any provision of this Agreement that contemplates or governs performance or observance after expiration or termination of this Agreement will survive such expiration or termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
  8. Confidential Information.
    1. “Confidential Information” means all non-public information acquired by a party (the “Receiving Party”) in connection with this Agreement or from the other party (the “Disclosing Party”) that (i) is marked “confidential” or “proprietary”, (ii) the Disclosing Party orally or in writing has advised the Receiving Party is confidential, or (iii) based on the nature of the material or the circumstances under which it was disclosed, a reasonable person would believe to be confidential at the time of disclosure. “Confidential Information” includes but is not limited to pricing information, computer programs, names and expertise of employees and consultants, know-how, business proposals, plans and operations, and other technical, business, customer, financial and product development information of Disclosing Party. Without limiting the generality of the foregoing, the terms of this Agreement (including pricing) and the Services are Confidential Information of Dataminr, and any non-public information provided by Customer in connection with the Services is the Confidential Information of Customer. Confidential Information does not include information that at the time of disclosure is publicly available or becomes publicly available through no act or omission of the Receiving Party; that is or has been disclosed to the Receiving Party by a third party who is not under (and to whom the Receiving Party does not owe) an obligation of confidentiality with respect thereto; or that is or has been independently acquired or developed by the Receiving Party. Additionally, the obligations of this Section 11 shall not apply if the Receiving Party discloses Confidential Information of the Disclosing Party to the extent disclosure is required by court order or is otherwise required by law, on condition that, to the extent permitted by law, notice of such requirement by law for such disclosure is given to the Disclosing Party prior to making any such use or disclosure.
    2. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than performing its obligations or exercising its rights under this Agreement, and will disclose the Confidential Information of the Disclosing Party only to Receiving Party’s employees, agents and contractors on a “need to know” basis, provided such persons are under an obligation with the Receiving Party to maintain the confidentiality of such Confidential Information, which obligation is consistent with, and no less protective of Confidential Information, than the terms of this Section 11. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care. Each party shall be responsible for any breach of this Agreement by any party to whom it has disclosed Confidential Information. Each party shall use all reasonable efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Receiving Party shall advise Disclosing Party immediately in the event Receiving Party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person. Each party acknowledges that in the event of any breach or threatened breach of this Section by either party, the other party may suffer irreparable harm and not possess an adequate remedy at law. Accordingly, each party shall have the right to seek injunctive or other equitable relief to restrain such breach or threatened breach.
    3. Upon termination of this Master Agreement, the Receiving Party shall return to the Disclosing Party or destroy (at the Disclosing Party’s option) all Confidential Information of the Disclosing Party, and all copies and extracts of the foregoing. Upon request of the Disclosing Party, the Receiving Party shall provide written certification of this destruction to the Disclosing Party.
  9. Data Transmission.
    1. Customer understands that it is responsible for securing an appropriate Internet connection, equipment and compatible browser software in order to utilize the Services. Customer acknowledges and understands that Dataminr is not responsible whatsoever (including under the SLA) for Services that are delayed, lost, intercepted, or stored across networks not owned or operated by Dataminr, including but not limited to, the Internet and Customer’s network.
    2. Customer shall be solely responsible for Customer’s environment, including as necessary to enable Authorized Users’ access and use of the Services; providing any required notices to, and receiving any required consents and authorizations from, Authorized Users and persons whose personal information may be included in data uploaded to the Services by or on behalf of Customer; and ensuring use of the Services is for internal business purposes only.
    3. Customer represents and warrants to Dataminr that any information that Customer or any Authorized User provides, authorizes access to, or inputs into the Services (including all text, sound, video, or image files) will not contain: (i) any data for which Customer does not have all rights, power and authority necessary for its collection, use and processing as contemplated by this Agreement, and (ii) any bank, credit card or other financial account numbers or login credentials; social security, tax, driver’s license or other government-issued identification numbers; information regarding a person’s race, religious or political affiliation, trade union membership, sexual life or sexual orientation; and personal health or biometric information. Customer acknowledges and agrees that the Service is not intended for use or transmission of any such information, and Dataminr shall have no liability whatsoever for any such data included in the Services by Customer.
  10. Intellectual Property.
    1. As between the parties, Dataminr owns all right, title and interest to (i) Dataminr’s trademarks, trade names, service marks, logos and slogans (collectively, the “Dataminr Marks”) and (ii) the Services, including all documentation, algorithms, software, firmware, data, databases or other technology utilized, and all related intellectual property rights in any of the foregoing.
    2. This Agreement does not confer on Customer any intellectual property or other rights to the Services other than its right to use under Section 3 and does not confer on Customer any rights to the Dataminr Marks. This Agreement does not confer on Dataminr any intellectual property or other rights to the Customer Marks (as defined below) other than its right to use and disclose in accordance with this Agreement.
    3. The parties expressly acknowledge that, as between the parties and Twitter, Twitter and/or its end users own and retain all worldwide right, title and interest in and to all Twitter content and services (and any derivative works or enhancements of either), including, but not limited to, all intellectual property rights therein.
  11. Security. Dataminr has established, and will maintain during the Term, commercially reasonable administrative, physical and technical safeguards commensurate with industry standards for the Services provided hereunder. Those safeguards will include measures for preventing unauthorized access to or use, modification or disclosure of the Customer Confidential Information.
  12. Insurance. Throughout the Term, Dataminr shall carry and maintain insurance commensurate with the types and amounts of insurance carried by service providers comparable to Dataminr in order to reasonably protect the parties from the liabilities that may arise out of the Services or this Agreement. Dataminr shall provide its then-current certificates of insurance to Customer upon written request, provided, such certificates of insurance shall be considered Confidential Information of Dataminr.
  13. Feedback. During the Term, Customer may provide feedback, requests, enhancements, ideas or suggestions regarding the Services or any beta tests (the “Feedback”). Customer acknowledges and agrees that all Feedback is the sole property of Dataminr. Customer is not required to provide Feedback and Dataminr is not required to use or incorporate Feedback into any of its Services. To the extent that Dataminr cannot claim exclusive rights in the Feedback by operation of law, Customer expressly grants to Dataminr a non-exclusive, royalty-free, fully paid-up, perpetual, irrevocable license, to fully exploit such Feedback.
  14. Disclaimer. DATAMINR PROVIDES NO WARRANTIES EXCEPT FOR THOSE EXPRESS WARRANTIES PROVIDED HEREUNDER. THIS AGREEMENT, THE SERVICES AND ANY OTHER PRODUCTS AND/OR SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. DATAMINR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. DATAMINR PROVIDES NO WARRANTIES AND EXPRESSLY DISCLAIMS ANY WARRANTIES THAT THE SERVICES, THE THIRD PARTY MATERIALS OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL MEET CUSTOMER’S REQUIREMENTS OR THAT USE OF SUCH MATERIALS WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE.
  15. Export, Import and Government Restrictions.
    1. Each party represents and warrants that it is not a Restricted Party; if either party becomes a Restricted Party during the period of this Agreement, such party shall immediately notify the other party, and the other party may immediately terminate this Agreement to the extent permitted under applicable law.     
    2. Customer acknowledges that the Services and any accompanying software are subject to sanctions and export control laws of the United States and applicable laws of any country in which such Services and software are received, accessed or used; Customer agrees to comply with all export control laws applicable to its receipt, access and use of the Services and software.
    3. Without limiting the foregoing, Customer shall not transfer or otherwise make accessible the Services or software to any Restricted Party, or to any person with respect to whom Customer has knowledge that a violation of applicable law has occurred, is about to occur, or is intended to occur in connection with the Services or software.
    4. For purposes of this Section 18, “Restricted Party” means any person or entity that is, at the relevant time (i) located or established in, a national of, organized under the laws of, or controlled by the government or one or more nationals of, Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine, or any other country or region to which U.S. persons are generally prohibited from engaging in financial and/or export transactions; (ii) designated on the U.S. Consolidated Screening List (see https://www.export.gov/article?id=Consolidated-Screening-List); (iii) majority owned by one or more persons or entities designated on any U.S. Department of the Treasury list included within the Consolidated Screening List; or (iv) part of, affiliated with, or controlled by any non-U.S. military organization. 
  16. Limitation of Liability.
    1. Customer acknowledges that Dataminr does not guarantee the sequence, accuracy, completeness, or timeliness of the Services or any content provided through the Services. Accordingly, anything to the contrary herein set forth notwithstanding, Dataminr, its Affiliates, suppliers, agents, directors, officers, employees, representatives, successors, and assigns shall not be liable, directly or indirectly, in any way, to you or any other person for any inaccuracies or errors in or omissions from the Services including, but not limited to, financial and other data; delays, errors, or interruptions in the transmission or delivery of the Services; or loss or damage arising therefrom or occasioned thereby, or by any reason of nonperformance.
    2. Certain content made available through the Services may display, include or make available content, data, information, applications or materials from third parties or include links to third party web sites or services. Customer acknowledges and agrees that Dataminr is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials, links or the web sites or services to which those links relate. Accordingly, anything to the contrary herein set forth notwithstanding, Dataminr, its Affiliates, suppliers, agents, directors, officers, employees, representatives, successors, and assigns do not warrant or endorse and shall not be liable, directly or indirectly, in any way, to Customer or any other person for any Third Party Materials, third-party web sites or services, or for any other materials, products, or services of third parties.
    3. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, SUPPLIERS OR LICENSORS BE RESPONSIBLE OR LIABLE WITH RESPECT TO THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, LOSS OF REVENUES, LOSS OF PROFITS, ERROR OR INTERRUPTION OF USE, LOSS OR INACCURACY OR CORRUPTION OF DATA, AND COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, RIGHTS, OR TECHNOLOGY, IN EACH CASE, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    4. TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO DATAMINR’S DISCLAIMER WITH RESPECT TO THIRD PARTY MATERIALS SET FORTH IN SECTION 5, IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES’ TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY ARISING UNDER THE AGREEMENT EXCEED THE FEES PAID (OR PAYABLE) BY CUSTOMER TO DATAMINR UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING LIMITATIONS OF LIABILITY IN THIS SECTION 19(D) WILL NOT APPLY TO (I) A PARTY’S INDEMNIFICATION OBLIGATIONS; (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (III) CUSTOMER’S BREACH OF SECTION 6 (RESTRICTIONS).
  17. Indemnification.
    1. Dataminr will indemnify, defend and hold Customer, its affiliates, officers, directors, and employees harmless from any and all amounts actually paid to third parties in connection with claims, liabilities, damages and/or costs (including but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) relating to any claim brought by a third party alleging that the Services, as provided by Dataminr to Customer under this Agreement and used within the scope of this Agreement, infringes or misappropriates any U.S. patent or copyright of such third parties (each, an “Infringement Claim”), provided that Customer: (i) promptly notifies Dataminr in writing of the Infringement Claim (provided that any failure to provide prompt notification shall not relieve Dataminr of its indemnification obligations unless such failure results in material prejudice to Dataminr); (ii) grants Dataminr the option to assume sole control of the defense and settlement of the Infringement Claim; and (iii) provides Dataminr, at Dataminr’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Infringement Claim. In the event of any such Infringement Claim, Dataminr may, at its option: (A) obtain a license to permit Customer the ability to continue using the Services; (B) modify or replace the relevant portion(s) of the Services with a non-infringing alternative having substantially equivalent performance within a reasonable period of time; or (C) terminate this Agreement by providing notice to Customer, and provide Customer with a refund of any prepaid, unearned Fees (prorated on a daily basis for the then-current billing period for the applicable Order Form). For the avoidance of doubt, Dataminr shall have no indemnification obligations of any kind to Customer regarding the Third Party Materials.
    2. Notwithstanding the foregoing, Dataminr will have no liability for any Infringement Claim to the extent that it results from: (i) Third Party Materials; (ii) the combination, operation, or use of the Services with equipment, devices, data or software where the Services would not by themselves be infringing; (iii) Dataminr’s compliance with any specifications or requirements provided by Customer; or (iv) Customer’s use of the Services or Third Party Materials other than in accordance with this Agreement. Customer shall indemnify and hold harmless Dataminr and its Affiliates from any and all Losses resulting from Customer’s actions or omissions as detailed in Sections (ii)-(iv) of the preceding sentence. The indemnification obligations set forth in this Section 20 are Dataminr’s sole and exclusive obligations (and Customer’s sole and exclusive remedies) with respect to infringement or misappropriation of intellectual property rights of any kind.
  18. Publicity. Dataminr may identify Customer as a customer of the Services and display Customer’s name and/or logo (collectively, the “Customer Marks) on Dataminr’s website or in promotional or marketing materials.  Customer shall retain all title in and to the Customer Marks.
  19. Class Action Waiver; Dispute Resolution; Binding Arbitration.
    1. Customer and Dataminr agree that any dispute arising out of or related to this Agreement or the Services is personal to Customer and Dataminr and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action, or any other type of representative proceeding.
    2. Except for disputes in which Customer or Dataminr seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, Customer and Dataminr waive their rights to a jury trial and to have any other dispute arising out of or related to this Agreement or the Services, (collectively, “Disputes”) resolved in court. For any Dispute, and the parties agree to attempt to resolve the claim informally by sending a written notice of the claim. If Customer or Dataminr cannot reach an agreement to resolve the Dispute within thirty (30) days after such notice is received, then either Party may submit the Dispute to binding arbitration administered by JAMS. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in New York County, New York. Dataminr and Customer will maintain the confidentiality of any arbitration proceedings, judgments, and awards, including information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute(s) therein.
    3. Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute shall be permanently barred. Customer and Dataminr agree that the state or federal courts of the State of New York and the United States sitting in New York County, New York have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
  20. Miscellaneous.
    1. No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission arises from any cause or causes beyond the reasonable control of such party that cannot be overcome through reasonable due diligence, such as strikes, riots, war, acts of terrorism, acts of God, invasion, fire, explosion, floods, and acts of government or governmental agencies or instrumentalities (collectively, “Force Majeure Event”); provided that the party seeking to delay its performance gives the other party written notice of any such Force Majeure Event as soon as practicable after the discovery of the Force Majeure Event, and further provided that such party uses its good faith efforts to overcome the Force Majeure Event (and, in any event, such party will begin or resume performance as soon as practicable after the Force Majeure Event has abated).
    2. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
    3. This Agreement is not assignable, transferable or sub-licensable by either party, whether voluntarily, involuntarily, by operation of law or otherwise, except with the other party’s prior written consent. Notwithstanding the foregoing, Dataminr may assign this Agreement to an Affiliate or any successor to substantially all of the business or equity of Dataminr without the consent of Customer.
    4. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party shall have any authority of any kind to bind the other party in any respect whatsoever.
    5. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy. No waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. Any waiver by any party of any provision of this Agreement shall not be construed as a waiver of any other provision of this Agreement, nor shall such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.  
    6. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or overnight mail or delivery (return receipt requested), to the person and address listed on an applicable Order Form, and, for Dataminr: Attn: Legal Department, Dataminr, Inc. 135 Madison Avenue, 9th Floor, New York, NY 10016 and legal@dataminr.com. Notwithstanding the foregoing, Dataminr may provide Customer with operational notices regarding the Services (e.g., planned maintenance periods) by email to the email address on file for Customer.
    7. This Master Agreement and all Order Forms are the complete and exclusive statement of the mutual understanding of the parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Any terms and conditions on or attached to Customer’s purchase order or other business processing document shall have no effect and shall be superseded by this Master Agreement and any applicable Order Forms.
    8. Dataminr reserves the right to update and change the terms of this Agreement from time to time in its sole discretion. Dataminr shall provide Customer with notice by updating the Master Agreement at dataminr.com/legal/msa and indicating the date of the update. Customer’s continued use of the Services indicates its acceptance of the updated terms of this Agreement.
    9. In the event of conflict between this Master Agreement and any Order Form, the applicable Order Form shall control and prevail. In the event of any conflict between this Master Agreement or any Order Form and any Third Party Terms, the Third Party Terms shall control and prevail but only with respect to the specific Third Party Materials governed by the conflicting Third Party Terms.
    10. The Services are a “commercial item” as that term is defined at 48 C.F.R. 2.101.  Any use, modification, derivative, reproduction, release, performance, display, disclosure or distribution of the Services by any government entity is prohibited.  Additionally, any use by U.S. government entities must be in accordance with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4. Contractor/manufacturer is Dataminr, Inc. with offices at 135 Madison Avenue, 9th Floor, NY, NY 10016.

 

Exhibit A

Third Party Terms

Twitter

Customer agrees to the Twitter terms and conditions set forth below (the “Twitter Addendum”).

  1. Twitter TOS (https://twitter.com/en/tos)
  2. Customer agrees that its use of Twitter Content (as defined at https://developer.twitter.com/en/developer-terms/agreement-and-policy.html) provided to Customer is subject to and governed by the terms applicable to such Twitter Content located at (https://developer.twitter.com/en/developer-terms/agreement-and-policy.html) (“Developer Terms”). Customer agrees to the Developer Terms which are hereby incorporated by reference and are available in hardcopy upon request to Twitter.
  3. Customer shall use the Twitter Content only as permitted by Dataminr and the Developer Terms in no way expand or extend the license to the Twitter Content.
  4. Further, as part of Customer’s access to Twitter Content under this Twitter Addendum, the parties hereby agree that Twitter is: (i) the licensor of the Twitter Content; (ii) a third-party beneficiary of this Twitter Addendum solely with respect to Customer’s use of Twitter Content; and (iii) entitled to enforce against Customer the terms, conditions and restrictions in this Twitter Addendum regarding the use of Twitter Content and violation of the Developer Terms.

Google

Customer agrees to the Google terms and conditions set forth below.

  1. The Services may contain translations powered by Google. GOOGLE DISCLAIMS ALL WARRANTIES RELATED TO THE TRANSLATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF ACCURACY, RELIABILITY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
  2. Customer agrees to be bound by the Google Maps/Google Earth Additional Terms of Service set forth at https://www.google.com/help/terms_maps.html

 

Updated August 2022 | Prior Version