Statement of Work Template

Software License

Terms of Service

The following Software License Terms of Service (“Agreement”) governs Subscriber’s use of the software as a service provided by Agile Dragon Group LLC (“ADG”) and identified in the Service Order which is an add-on tool to enhance Subscriber’s Birst business intelligence software. This agreement is between ADG and the Subscriber entity whose details are set out on the Service Order form (“Order”). By signing the Order that describes the subscription fees, Subscriber accepts the terms of this Agreement.

1. Definitions

1.1 “Agreement” means this User License Agreement, as it may be amended from time to time, and the corresponding Order.

1.2 “Authorized User” means an individual subscriber or the authorized employees of an organization with a Birst license and subscription to the Service, who have been added to the account as users or discovered by ADG while monitoring the user count.

1.3 “Confidential Information” means the User Data (defined in Section 1.6) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, personally identifiable information, pricing information, procedures, business and marketing plans or strategies, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.

1.4 “Service” means any software or services provided by ADG, including but not limited to Dragon Grid.

1.5 “Subscriber” refers to the entity licensee of the Service identified in the Order and any present or former agent, representative, employee, and any entity or person who had authority to act on your behalf.

1.6 “User Data” means Authorized User data stored in Birst and used by the Service.

2. Use of the Service

2.1 Subscriber is granted a non-exclusive, non-transferable, limited license to access and use the Service as an add-on to Subscriber’s Birst subscription. Authorized Users agree not to modify, reverse engineer, adapt or otherwise tamper with the Service or modify another website so as to falsely imply that it is associated with the Service or ADG. Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Service shall remain solely with ADG.

2.2 ADG does not review the User Data and ADG claims no intellectual property rights with respect to the User Data. Authorized Users agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Service, use of the Service, or any portion of the Service.

2.3 ADG reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Service, with or without notice, except that ADG shall provide Subscriber with 30-day’s notice of any modification that materially reduces the functionality of the Service. Continued use of the Service following any modification constitutes Subscriber’s acceptance of the modification.

2.4 ADG reserves the right to temporarily suspend access to the Service for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavor to provide no less than two business day’s notice prior to any such suspension. Such notice shall be provided to you in advance through by way of notification within the Service, email or other notification method deemed appropriate by ADG. Further, ADG shall endeavor to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs.

2.5 ADG does not have access to and does not store any User Data. All User Data is stored on Subscriber’s own instance of Birst and User Data security is governed by the Birst subscription.

2.6 Subscriber grants to ADG a non-exclusive, royalty-free right during Subscriber’s use of the Service, to use Subscriber’s User Data and any Confidential Information it may contain for the sole purpose of the Service performing for Subscriber. Subscriber further grants ADG the right to capture anonymized Service usage data to monitor, maintain and improve the Service and monitor the user counts. Subscriber also consents to ADG communications and marketing its products and services and offers to Subscriber.

3. Access to the Service

3.1 Subscriber is only permitted to access and use the Service if he/she is an Authorized User.

3.2 All access to and use of the Service via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Service is strictly prohibited.

4. Confidentiality

4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.

4.2 If ADG is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then ADG will provide Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, ADG may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.

5. Payment, Refunds, and Subscription Changes

5.1 Subscriber agrees to pay the subscription fees in the amount and frequency detailed in the Order unless otherwise increased pursuant to Section 5.2 below. All subscription fees are exclusive of taxes and similar assessments. Subscriber is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local government or regulatory agency on any amounts payable by Subscriber under this Agreement, other than taxes imposed on ADG’s income. In addition to subscription fees, Subscriber understands that it may still incur charges incidental to using the Service, for example, internet access, data roaming, and other data transmission charges.

 

5.2 Subscribers with paid subscriptions will begin being charged at the end of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. After the trial period ends, Subscribers will be charged as detailed in the Order unless an audit of users identifies more concurrent users in which case the additional users will be add and charged as Authorized Users. All charges are final and non-refundable, including payments made by Subscribers, setup fees, and other professional service charges.

5.3 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the removal of a Subscriber.

5.4 There are no charges for cancelling a subscription and paid subscriptions which are cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.

5.5 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Adding subscription upgrades will trigger prorated charges in the current billing cycle. Subscription changes, including downgrades, may result in loss of access to User Data, features, or an increase or reduction in the amount of available capacity for User Data provided by the Service.

5.6 All prices are subject to change upon notice after the initial subscription period shown in the Order. Notice may be by an email message, or in the form of an announcement on the Service.

6. Term and Termination

6.1 This Agreement is effective once the Order is signed. The Order will indicate the initial term of the subscription and whether subscription fee payments will be due annually or monthly.

6.2 Subscriber may terminate this Agreement and cancel the subscription at any time by written notice to ADG by email or visiting the Subscriber’s account management section.

6.3 ADG, in its sole discretion, has the right to suspend or discontinue providing the Service to any Subscriber with notice for actions that are in material violation of this Agreement and may undermine the security of the Service. If Authorized Users use the Service to materially violate this Agreement in a way that does not undermine the security of the Service and ADG provides Subscriber with reasonable notice of the violation, uses commercially reasonable efforts to discuss and resolve the violation with Subscriber; and the violation is not resolved to ADG reasonable satisfaction within 30 days of such notice, then ADG reserves the right to suspend access to the Service.

7. Limitation of Liability

7.1 Except for its obligations under Section 4 above (“Confidentiality”) and Section 9 below (“Indemnification”), ADG shall not be liable for and Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Service provided to Subscriber by ADG.

7.2 SUBSCRIBER AGREES THAT THE LIABILITY OF ADG ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE SERVICE WILL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY ADG FOR THE SERVICE WITHIN THE THREE-MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. SUBSCRIBER FURTHER AGREES THAT ADG IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF RECOVERY OR WHETHER THOSE DAMAGES ARE FORESEEABLE OR ADG HAD BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY ADG TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES.

7.3 Subscriber will solely be responsible for any damage and/or loss of User Data.

8. Disclaimer of Warranties

8.1 ADG DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE. THE SERVICE IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.

8.2 ADG makes no warranty that the Service will be error free. Nor does ADG make any warranty as to any results that may be obtained from the use of the Service.

9. Indemnification

9.1 Subscriber agrees to indemnify and hold harmless ADG, its manager, members, employees and agents, from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to: (a) Subscriber’s breach of this Agreement, (b) Subscriber’s negligence or intentional misconduct; or (c) Subscriber’s use or inability to use the Service. The ADG indemnitee will provide prompt notice to Subscriber of any indemnifiable claim or loss and reasonably assist in the defense. The indemnitee may participate in the defense of the claim, suit, or proceeding, at its expense, with counsel of its choosing.

9.2 ADG agrees to indemnify and hold harmless Subscriber, its officers, directors, employees and agents, from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to any third-party claim against Subscriber alleging that the Service, or use of the Service as contemplated in this Agreement, infringes its U.S. copyright, patent, or a trademark of a third party or involves the misappropriation of any trade secret of a third party. Subscriber will provide prompt notice to ADG of any indemnifiable claim or loss and reasonably assist in the defense. Subscriber may participate in the defense of the claim, suit, or proceeding, at its expense, with counsel of its choosing.

9.3 ADG shall not be required to indemnify Subscriber its indemnitees in the event of: (a) modification of the Service by Subscriber in conflict with Subscriber’s obligations or as a result of any activity prohibited by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such modification; (b) use of the Service in combination with any other product or service not provided by ADG to the extent that the infringement or misappropriation would not have occurred but for such use; or (c) use of the Service in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use.

10. Miscellaneous

10.1 Subscriber acknowledges and agrees that ADG may use third party vendors and hosting partners to provide the necessary hardware, software, networking, and technology required to run the Service.

10 .2 The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.

10.3 This Agreement constitutes the entire agreement between the Subscriber, its Authorized Users and ADG, and governs Authorized Users use of the Service, superseding any prior agreements between Authorized Users and ADG (including, but not limited to, any prior versions of this agreement).

10.4 ADG reserves the right to amend this Agreement. In the event of material changes to the Agreement, ADG will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Service by the Subscriber after reasonable notice will be considered acceptance of any new terms.

10.5 Neither party may assign any of its rights or obligations, whether by operation of law or otherwise, without the prior written consent of the other party (which will not be unreasonably withheld). However, either party may assign this Agreement in its entirety without consent as part of a merger, acquisition, reorganization, or sale of its assets where the assignee will be bound by this Agreement.

10.6 Governing Law and Venue. This Agreement and your relationship with ADG shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws of the State of Illinois and shall be considered to have been made and accepted in Illinois, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the Illinois courts nearest ADG and Subscriber consents to the jurisdiction of and venue in such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.

10.7 Notices. The parties will primarily communicate by email, however, any and all formal notices required by this Agreement shall be in writing to the party’s email and street address shown in the Order and shall be deemed delivered: (a) when personally delivered to the party to whom it is addressed; (b) 1 business day after placing with a national overnight carrier (e.g., FedEx, UPS); or (c) 5 business days after deposit in the United States mail, first class, postage prepaid, addressed to such party at the appropriate address as set forth in this Agreement. Either party may change its address by written notice of such change.

10.8 Promotional Identification. Subscriber agrees that during the term of this Agreement, ADG may publicly identify Subscriber as a ADG customer, including using Subscriber’s logo. Similarly, ADG grants Subscriber the right to publicly identify ADG as a provider of services to Subscriber. Neither party shall publicly disparage the other in any forum or media.