TERMS OF DATA PRODUCTS
Last Modified: May 19, 2020
Descartes Labs, Inc. (“Company,” “we,” “our” or “us”) is a data provider enabling access to cutting edge data analytics and intelligence. This page explains the terms and conditions by which you may subscribe to or obtain certain analytics, signals, and data products (“Data Products”). We reserve the right to modify this Terms of Data Products (“Agreement”) and will provide notice of these changes as described below. This Agreement applies to all persons who access our Data Products (collectively, “Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
NO PROFESSIONAL ADVICE. IF THE DATA PRODUCTS PROVIDE PROFESSIONAL INFORMATION, SUCH INFORMATION IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS PROFESSIONAL ADVICE. NO ACTION SHOULD BE TAKEN BASED UPON ANY INFORMATION CONTAINED IN THE DATA PRODUCTS. THE INFORMATION PROVIDED IN THE DATA PRODUCTS IS NOT INTENDED TO, AND SHOULD NOT REPLACE THE JUDGEMENT OF A QUALIFIED PROFESSIONAL. YOU SHOULD SEEK INDEPENDENT PROFESSIONAL ADVICE FROM A PERSON WHO IS LICENSED AND/OR QUALIFIED IN THE APPLICABLE AREA.
- Our Data Products
1.1 Access and Use
Subject to your compliance with the terms and conditions of this Agreement, you may access and use our Data Products solely for your internal business purposes, except as otherwise expressly agreed by Company and you in writing. All other uses and all other Users are expressly prohibited. We reserve all rights not expressly granted by this Agreement in and to our Data Products and our Intellectual Property (defined below).
Except as we otherwise expressly agree in writing, you will not, and you will not assist, permit or enable others to, do any of the following:
(a) use our Data Products for any purpose other than as expressly set forth in Section 1.1 above;
(b) disassemble, reverse engineer, decode or decompile any part of our Data Products;
(c) copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of our Data Products or any of our Intellectual Property;
(d) remove any copyright notices or proprietary legends from our Data Products;
(e) use our Data Products in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or Users;
(f) use our Data Products in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
(g) use our Data Products for benchmarking or competitive analysis of our Data Products;
(h) bypass the measures we may use to prevent or restrict access to our Data Products or enforce limitations on use of our Data Products or the content therein, including without limitation features that prevent or restrict use or copying of any content;
(i) identify us or display any portion of our Data Products on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights; or
(j) identify or refer to us or our Data Products in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of our Data Products under this Agreement, without our express written consent.
1.3 Changes to our Data Products
We may, without prior notice, change our Data Products; stop providing our Data Products or features of our Data Products, to you or to Users generally; or create usage limits for our Data Products. We may permanently or temporarily terminate or suspend your access to our Data Products without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
1.4 Data Product License
Subject to your compliance with the terms and conditions of this Agreement, including without limitation the restrictions set forth in Section 1.2 above and the restrictions set forth below in this Section, we hereby grant to you the following limited license to the Data Products you subscribe to or obtain from us: a right and license to access, use, copy and create derivative works of the Data Products solely for the purposes described in Section 1.1 above. All Data Products are licensed not sold.
The Data Products may contain data, content or information provided by third parties (“Third-Party Data”). All or some portions of Third-Party Data may be subject to separate third-party license agreements, including but not limited to open source license agreements. Notwithstanding anything to the contrary in this Agreement, such third-party license agreements govern your use of such Third-Party Data and control and supersede this Agreement to the extent of any conflict herewith, and you are solely responsible for compliance with all third- party license agreement(s) applicable to Third-Party Data. We or such third parties may modify the such third-party license agreements and any applicable use restrictions for Third-Party Data from time to time and it is your responsibility to check for updates to these such license agreements or use restrictions. If a modification of any third-party license agreement, or use restrictions is unacceptable, you may cancel your access upon written notice to us or discontinue use of our Data Products, as applicable. Continued use of our Data Products will be deemed acceptance of any such modifications.
In addition to the restrictions set forth in Section 1.2 above or in any applicable third-party data license agreement, you agree that you will not, and will not permit any third party to use the Data Products (in whole or in part, alone or combined with other data) to promote any illegal product, or engage in any illegal purpose;
Without limiting the foregoing, you agree to remain responsible to us for any third-party service provider to which you provide access to the Data Products (in whole or in part) on your behalf, including any providers you use to decorate any data included in the Data Products you license hereunder.
- Our Intellectual Property
You acknowledge and agree that our Data Products and all materials and content displayed or made available on our Data Products, and all software, algorithms, code, technology and intellectual property underlying and included in or with our Data Products, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”), are our (or our licensors’ as applicable) sole and exclusive property. Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of our Intellectual Property. Use of our Intellectual Property for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to submit, comments or ideas about our Data Products, including without limitation about how to improve our Data Products or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
- Charges and Payment
3.1 Billing Policies. By using our Data Products, you agree to our pricing and payment terms specified in an order form and herein, as we may update them from time to time. Unless otherwise specified at the time of purchase, you must pay for Data Products when you place your order. You acknowledge that the amount billed may vary due to changes in applicable fees, promotional offers and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.
3.2 Subscription Plan. Subscriptions to the Data Products (“Subscription Plan”) may be offered for a fee for a set period of time (e.g., monthly, annually, etc.) (a “Subscription Period”). All Subscription Plans, unless earlier terminated or expired as described in these terms, will automatically renew until cancelled by you. If you do not want a Subscription Plan to renew, please cancel it at least three days before the end of the Subscription Period. If we terminate your Subscription Plan, we will grant you a prorated refund for the remaining unused portion of your Subscription Period. You are not entitled to a refund for any Subscription Plan that you cancel.
3.3 Payment Information; Taxes. You must provide Company with a current, valid, accepted payment method. You hereby authorize Company (through our third-party payment providers) to bill the fees to your payment method, along with any applicable taxes or additional fees due during the billing period. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with our Data Products must be accurate, complete, and current. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
You agree to defend, indemnify and hold us and our affiliates, agents, suppliers or licensors (and our and their employees, contractors, agents, officers and directors) harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to our Data Products; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the restrictions above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) User and system data including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any third party’s access and use of our Data Products with your unique username, password or other appropriate security code.
- No Warranty
OUR PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR DATA PRODUCTS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR DATA PRODUCTS ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OUR DATA PRODUCTS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT OUR DATA PRODUCTS WILL MEET YOUR REQUIREMENTS; THAT OUR DATA PRODUCTS WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR DATA PRODUCTS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR DATA PRODUCTS IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF OUR DATA PRODUCTS.
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO YOUR USE OF, AND OUR PROVISION OF, THE DATA PRODUCTS, AND THAT THE DATA PRODUCTS MAY NOT RESULT IN ANY SPECIFIED RESULT; YOU ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE DATA PRODUCTS IS INTENDED TO BE INFORMATIVE, AND SHOULD NOT BE CONSTRUED AS ADVICE; AND THEREFORE, COMPANY HEREBY DISCLAIMS, AND YOU HEREBY EXPRESSLY RELIEVE COMPANY FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY YOU BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE DATA PRODUCTS.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR DATA PRODUCTS. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR DATA PRODUCTS OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR DATA PRODUCTS; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; OR (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY.
IN NO EVENT WILL WE OR OUR AFFILIATES, AGENTS, SUPPLIERS OR LICENSORS (OR OUR OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS) BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO US HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Governing Law, Arbitration, and Class Action/Jury Trial Waiver
7.1 Governing Law. You agree that: (i) our Data Products will be deemed solely based in California; and (ii) our Data Products will be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement will be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco, CA is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
7.2 Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with Company, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute we have with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco, CA, unless you and we agree otherwise. If you are using our Data Products for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator will include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Data Products for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. NOTHING IN THIS SECTION WILL BE DEEMED AS PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
7.3 Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR DATA PRODUCTS FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Export Controls.
You understand that our Data Products are or may be subject to export control laws and regulations. YOU MAY NOT DOWNLOAD, RECEIVE OR EXPORT OR RE-EXPORT OUR DATA PRODUCTS, SOFTWARE OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF OUR DATA PRODUCTS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. YOU HEREBY AGREE TO THE FOREGOING AND REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
- Compliance with Laws
You will at all times comply with all applicable laws, rules, regulations, regulatory guidelines and self-regulatory guidelines, including without limitation privacy and data protection laws.
10.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof will be null and void.
10.3 Entire Agreement/Severability. This Agreement, together with any amendments and any additional agreements (including order forms) you may enter into with us in connection with our Data Products, will constitute the entire agreement between you and us concerning our Data Products. None of our employees or representatives are authorized to make any modification or addition to this Agreement. Any statements or comments made between you and any of our employees or representatives are expressly excluded from this Agreement and will not apply to you or us or your use of our Data Products. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of this Agreement, which will remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement will be unenforceable.
10.4 No Waiver. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement will not constitute a waiver of such right or provision.
10.5 Contact. Please contact us at firstname.lastname@example.org with any questions regarding this Agreement.