This SERVICES AGREEMENT (“Agreement”) is integrated and made a part of the Service Order by and between AMBEE INC. (“Ambee”) a Delaware corporation with its address at 300 Witherspoon St Suite 201, Princeton, NJ 08542 and the Subscriber named on the Service Order.
WHEREAS, Ambee has developed a suite of products known as the “Ambee Data Suite” that provides environmental and climate data via an API and the Site (the “Service”); and
WHEREAS, Subscriber desires to use the Service and submit Queries to the Service and to receive responses thereto.
NOW, THEREFORE, in consideration of the foregoing the parties hereby agree as follows:
(a) “Agreement” means the Service Order and this Service Agreement.
(b) “Agreement Month” means each one-month period during an Agreement Year, beginning on the Commencement Date.
(c) “Agreement Year” means, the period beginning on the Commencement Date and ending on the last day of the twelfth Agreement Month.
(d) “Application Programming Interface (“API”) means the Ambee interface that allows Subscribers to connect to the Service. Documentation on the API and its terms of use may be found at https://docs.ambeedata.com.
(e) “Commencement Date” means the earlier of (i) the Effective Date on the Service Order; or (ii) the date the Subscriber first submits a Query to the Service.
(f) “Documentation” means functional specifications, user manuals, file descriptions, and similar written materials relating to the Service.
(g) “Permitted Use” means the Subscriber’s authorized use of the Service and the Service Data which is for internal business purposes, integration into Subscriber’s internal business intelligence platform and preparation of limited derivative works to be provided Subscriber’s customers. Any exceptions to the Permitted Use shall be detailed in the Service Order or an addendum to this Agreement.
(h) “Query” or “Queries” means a Query to the Service from the Subscriber requesting Service Data.
(i) “Reseller” means a Subscriber that is authorized to resell the Service Data generated from the Service, including derivative works of the Service Data and subsequent transfer to a third party. Any Subscriber reselling the Service Data, or any Subscriber who
transfers the Service Data, in any form, to a third party, is required to have a Reseller Addendum to this Agreement executed prior to reselling the Service Data.
(j) “Service” means the service and data to be provided by Ambee to Subscriber and detailed on the Service Order. Service includes use of and access to the API and the Ambee products, services, and applications.
(k) “Service Data” means the data that is returned from the Service to the Subscriber in response to a Subscriber Query.
(l) “Service Fee” means the fees stated in the Service Order.
(m) “Service Order” means the Ambee Service Order executed by Subscriber and Ambee that details the use of the Service and applicable Service Fees.
(n) “Site” means the internet website owned and operated by Ambee and located at https://www.getambee.com, as well as other affiliate domains and subdomains, and other Ambee technologies such as a API’s, CSV data, mobile or desktop application or other interfaces which provide access to the Service.
(a) Description of Services. Ambee agrees that the Subscriber may submit Queries to the Service and that Ambee will operate the Service and return responses to Subscriber in the form of Service Data and such Queries and responses shall be in accordance with the terms of this Agreement and the Documentation.
(b) Use of the Service and Service Data. Subject to the terms and conditions of this Agreement, Ambee grants to Subscriber a limited, worldwide, non-exclusive, non-transferable right during the term of this Agreement to use the Service, and Service Data, in connection with its internal business purposes, integration into Subscriber’s internal business intelligence platform(s) and preparation of limited derivative works to be provided to Subscriber’s customers. For the purposes of this agreement, limited derivative works shall mean the Subscriber can enhance its product that it delivers to its customer(s) but the Service Data cannot constitute the majority of what is contained within the derivative work. The rights of Subscriber to use the Service and Service Data are subject to the Permitted Use and this Section 2(b) and in compliance with this Agreement and the Service Order. In the event that Subscriber desires to resell the Service Data derived from the Service, in raw or unadulterated form, the parties will have executed a Reseller Addendum to this Agreement. Upon expiration or termination of this Agreement or the Service Order, for any reason, such right to use the Service will terminate immediately.
(c) API License. Ambee grants Subscriber, during the term of this Agreement, a limited, non-exclusive, non-transferable license, to access and use the Ambee API subject to the API terms of use which may be found at https://docs.ambeedata.com. Ambee may update and/or amend such terms of use in its sole discretion and without notice. Upon expiration or termination of this Agreement or the Service Order, for any reason, such license and access to the API will terminate immediately.
(d) Documentation. Ambee shall supply, and maintain, at no cost to Subscriber, Documentation regarding use of the API and the Service (in electronic format).
(e) Hosting. Ambee shall be solely responsible for hosting the Service. Except as explicitly noted herein, the charges set forth in the Service Order are inclusive of all costs and expenses to Subscriber associated with such hosting.
(f) Software Maintenance and Support. Ambee shall be solely responsible for providing and managing the Service and Service Data required for the proper operation of the Service.
(g) Restrictions.
(i) Subscriber agrees that it shall not reverse engineer, disassemble, decompile, modify or profile the Service, or Service Data, for any purpose whatsoever, nor will Subscriber implement or permit procedures such as “portscans”, “tiger attacks” or other techniques designed to gain access to the Service (or to computers running the Service) which have not been specifically authorized by Ambee.
(ii) Subscriber agrees that it will not enter into commercial arrangements that contemplate or permit the use of the Service or Service Data other than set forth under this Agreement or the Service Order.
(iii) Subscriber may cache information obtained from a Query and Subscriber may retain the cached Service Data. Any information retained pursuant to the preceding sentence is referred to as the “Permitted Cache”. Information from the Permitted Cache may be used solely for purposes consistent with the Permitted Use, this Agreement, and the Service Order.
Subscriber acknowledges that Ambee is the sole and exclusive owner of all rights in and to the Service and Service Data and that other than the rights granted hereby, no proprietary rights (including but not limited to copyrights and patents) in the Service or Service Data are being transferred to Subscriber.
(a) Payment Terms. Unless otherwise specified on the Service Order, Subscriber agrees to pay the Service Fee set forth in the Service Order at the time of acceptance and execution of the Service Order. After the initial term, the Service Fee, if renewed, will be invoiced at the then current rate for the Service in advance of the start of each renewal period.
All Service Fee payments will be non-refundable and all amounts shall be denominated and paid in United States dollars.
(b) Additional Services or Products. Ambee may provide additional services or products to Subscriber if so agreed by the parties pursuant to a statement of work or additional Service Order, in which case Subscriber shall pay Ambee the fees set forth therein. In addition to any applicable the hourly rates, Subscriber shall pay Ambee’s out-of-pocket expenses incurred by Ambee in rendering such services to Subscriber hereunder, including but not limited to reasonable costs of travel.
(c) Invoicing. Subscriber shall pay Ambee according to the terms contained within the Service Order. For any renewals or additional invoices, Subscriber shall pay all such invoiced amounts within thirty (30) days after receipt of invoice. In the event of a good faith dispute as to any portion of an invoice, Subscriber shall give written notice to Ambee, within fourteen (14) days after receiving such invoice, stating the details of any such dispute and shall promptly pay any undisputed amount in accordance with this Agreement.
(d) Taxes. The fees stated on the Service order do not include Taxes and each party shall be responsible for its own taxes related to the use of the Service. In the event Ambee determines that it has a legal obligation to pay or collect Taxes, Ambee shall add such Taxes to the applicable invoice and Subscriber will pay the Taxes unless Subscriber provides Ambee with a tax exemption certificate from the appropriate taxing authority.
(e) Service Fee Adjustment. Effective commencing on the first anniversary of the Effective Date and continuing on each anniversary thereafter, the Service Fee set out forth in the Service Order may be adjusted annually (each, an “Adjustment Date”), in the Company’s sole discretion, by an amount equal to any increase in the Consumer Price Index, All-Urban Consumer-All Items (“CPI”) as reported by the U.S Department of Labor on its website at http://www.bls.gov/cpi, from a base month of the Effective Date through the Adjustment Date, subject to an annual maximum increase of three (3%) percent.
(a) Term of Agreement. The term of this Agreement shall commence on the date hereof, and this Agreement and the rights granted to Subscriber hereunder shall terminate according to the Term specified in the Service Order. Thereafter, Subscriber shall have the right to extend this Agreement for Terms equal to the initial term.
(b) Termination for Cause by Subscriber. This Agreement and the rights granted hereunder may be terminated by Subscriber for cause, immediately by written notice, in the event (i) Ambee fails to make the Service or Service Data available to Subscriber, and such breach is not cured within thirty (30) days after receipt of written notice thereof from Subscriber; or (ii) the Service returns answers that are not “responsive” in a material percentage of cases and such breach is not cured within thirty (30) days after receipt of written notice thereof from Subscriber; or (iv) an Insolvency Event occurs with respect to Ambee. In the event of termination by Subscriber pursuant to this Section 5(b), Ambee shall refund to Subscriber any Service Fees or other fees paid by Subscriber which have been paid in advance by Subscriber and have not been earned as of the effective date of termination. Upon Termination all access to the Service and the continued use of any cached Service Data shall be terminated.
(c) Termination for Cause by Ambee. This Agreement may be terminated by Ambee for cause immediately by written notice in the event (i) Subscriber breaches the payment obligations and such breach is not cured within fifteen (15) days after receipt of written notice thereof from Ambee; (ii) materially breaches the confidentiality obligations set forth in Section 9, and, irrespective of damage to Ambee, such breach is not cured within thirty (30) days after receipt of written notice thereof from Ambee; or (iii) an Insolvency Event occurs with respect to Subscriber.
(d) Duties on Termination. Upon termination of this Agreement for any reason, Ambee shall immediately terminate all access to the Service and all rights to use the Service shall immediately cease and terminate.
(e) Survival. The parties’ rights and obligations under this provision and the following sections shall survive the termination or expiration of this Agreement: 3, 7, 8, 9, 10, 12, and 13.
(a) By Subscriber. Subscriber represents and warrants to Ambee that it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder and that Subscriber’s compliance with the terms and conditions of this Agreement will not violate any federal, state or local laws, regulations or ordinances or conflict with any third party agreements.
(b) By Ambee. Ambee represents, warrants and covenants to Subscriber as follows:
(i)Authority: That: (1) Ambee has the full right, power and authority to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights granted to Subscriber in this Agreement; and (2) Ambee’s compliance with the terms and conditions of this Agreement shall not violate any federal, state or local laws, regulations or ordinances or conflict with any third party agreements.
(ii) Service. That the Service shall perform substantially in accordance with the Documentation.
(iii) Non-Infringement: That the Service and Service Data is original to Ambee and does not infringe, or otherwise violate or misappropriate any copyright, patent, trade secret, or other proprietary right(s) held by any third party. Subscriber’s sole remedy for a breach of the foregoing representation shall be to require Ambee, at Ambee’s expense, to (1) procure for Subscriber the right to continue using the Service or Service Data; (2) replace or modify the Service or Service Data so that it becomes non- infringing but remains substantially equivalent in functionality and performance; or (3) in the event (1) and (2) are not commercially practicable, permit Subscriber to terminate this Agreement and, within thirty (30) days of the date of such termination, refund to Subscriber all unearned fees paid in advance by Subscriber.
(iv) Documentation. That the Documentation and all modifications or amendments thereto which Subscriber is required to provide under this Agreement will accurately describe the Service in all material respects, without reference to any other materials or information.
(c) Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 6, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(a) By Ambee. Ambee shall, at its own expense, defend, indemnify and hold harmless Subscriber and its directors, officers, employees, successors and permitted assigns from and against any and all liabilities, damages, awards, losses, costs and expenses (including court costs and reasonable attorneys’ fees) arising out of any claim, demand, suit or cause of action (hereinafter a “Claim”) brought by a third party relating to or resulting from (i) any act or omission of Ambee or its employees, agents or contractors, (ii) any breach of the representation or warranty made in Section 6(b) by Ambee.
(b) By Subscriber. Subscriber shall, at its own expense, defend, indemnify and hold harmless Ambee and its directors, officers, employees, successors and permitted assigns from and against any and all liabilities, damages, awards, losses, costs and expenses (including court costs and reasonable attorneys’ fees) arising out of any Claim brought by a third party relating to or resulting from (i) any act or omission of Subscriber or its employees, agents or contractors, or (ii) any breach of the representation or warranty made in Section 6(a) by Subscriber.
(c) Indemnification Procedures. If any party entitled to indemnification under this section (an “Indemnified Party”) makes an indemnification request to the other, the Indemnified Party shall permit the other party (the “Indemnifying Party”) to control the defense, disposition or settlement of the matter at its own expense; provided that the Indemnifying Party shall not, without the consent of the Indemnified Party, enter into any settlement or agree to any disposition that imposes any conditions or obligations on the Indemnified Party (other than the payment of monies that are readily measurable for purposes of determining the reimbursement obligations of the Indemnifying Party) or affect the rights of the Indemnified Party. Counsel selected by the Indemnifying Party shall be reasonably acceptable to the Indemnified Party. The Indemnified Party shall notify the Indemnifying Party promptly of any Claim for which the Indemnifying Party is responsible and shall reasonably cooperate with the Indemnifying Party to facilitate the defense of any such Claim. An Indemnified Party shall at all times have the option to participate in any Claim through counsel of its own selection and at its own expense.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR DAMAGES IN CONNECTION WITH THIS AGREEMENT IN THE AGGREGATE EXCEED THE AMOUNT OF SERVICE FEES PAID BY SUBSCRIBER TO AMBEE DURING THE PREVIOUS TWELVE MONTHS PURSUANT TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. THE LIMITATIONS CONTAINED IN THIS SECTION SHALL NOT APPLY TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7, A BREACH BY EITHER PARTY OF SECTION 9 (CONFIDENTIAL INFORMATION), A BREACH BY COMPANY OF SECTION 4 (FEES AND EXPENSES) OR THE WILLFUL OR RECKLESS ACTS OF EITHER PARTY.
(a) Confidential Information. Each party has disclosed (prior to the commencement of this Agreement) and may disclose Confidential Information to the other party which it intends the other party to maintain in confidence, and each party agrees to comply with the provisions of this Section 9 with respect to all such Confidential Information. As used
herein, each party which discloses such information is referred to as a “Disclosing Party” and each party which receives such information is referred to as a “Receiving Party.” “Confidential Information” means Disclosing Party’s confidential and proprietary inventions, products, designs and ideas, including computer software, data, functionality, concepts, processes, internal structure, external elements, user interfaces, technology and documentation, as well as confidential and proprietary information relating to Disclosing Party’s operations, plans, opportunities, finances, research, technology, developments, know-how, personnel, and any third party confidential information disclosed to Receiving Party. Without limiting the foregoing definition, the Service and the Documentation (except Documentation reasonably expected to be provided to Subscribers regarding the use of the Service) are “Confidential Information” of Ambee. The terms and conditions of this Agreement are also “Confidential
Information.” Notwithstanding the foregoing, “Confidential Information” shall not include information (a) already lawfully known to Receiving Party if the Receiving Party does not then have a duty to maintain its confidentiality, (b) developed independently by the Receiving Party, (c) generally known to the public through no fault of the Receiving Party; (d) lawfully obtained from a third party not known to the Receiving Party to be obligated to preserve its confidentiality; (e) required to be disclosed by law, regulation or order of a court of competent jurisdiction or other governmental authority (except that prior to any such disclosure the Receiving Party shall give the Disclosing Party notice thereof and afford the Disclosing Party the opportunity to oppose any such disclosure).
(b) Non-Disclosure. Receiving Party acknowledges that Confidential Information is confidential, proprietary and/or trade secret information of the Disclosing Party. Receiving Party shall not use the Confidential Information for any purpose other than in accordance with this Agreement, and shall not disclose Confidential Information to anyone other than its employees, and to contractors who legitimately need access to it and who have signed confidentiality agreements comparable in scope to this Section 9. In addition, a party may disclose Confidential Information that is commercial or financial to its financial advisors, investors or potential investors who have signed confidentiality agreements comparable in scope to this Section 9. Receiving Party shall notify each of its employees or other third parties who are given access to Confidential Information that they have an obligation not to disclose Confidential Information and shall take such steps as are reasonably necessary to insure compliance with this obligation. Receiving Party shall safeguard Confidential Information with reasonable security means at least equivalent to measures that it uses to safeguard its own proprietary information. Receiving Party shall store Confidential Information in a safe and secure location. Receiving Party may not remove copyright, trademark, trade secret, confidentiality, and patent notices from Confidential Information. .
(c) No Warranties. Except as specifically set forth in Section 6, all Confidential Information is provided “as is,” without any express or implied warranty of any kind.
(d) Breach of Confidentiality Obligations. Receiving Party hereby acknowledges that unauthorized disclosure or use of Confidential Information shall cause immediate and irreparable harm to Disclosing Party for which it would not have an adequate remedy at law. Accordingly, Disclosing Party shall have the right to seek and obtain preliminary and final injunctive relief to enforce this Agreement in case of any actual or threatened breach, in addition to other rights and remedies that may be available to Disclosing Party.
The parties shall be treated for all purposes as independent contractors, and no provision of this Agreement shall be construed to constitute or create a partnership, joint venture, agency or formal business organization of any kind.
The parties shall be treated for all purposes as independent contractors, and no provision of this Agreement shall be construed to constitute or create a partnership, joint venture, agency or formal business organization of any kind.
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