Last updated June 26, 2019
This Visallo Platform License Agreement (“Agreement“”) is entered into as of the commencement date specified on the Schedule of Services (defined below) (the “Effective Date“), between Visallo, LLC (“Visallo“ or “we“), a wholly-owned subsidiary of Kensho Technologies, LLC, a Delaware limited liability company, with a principal location at 44 Brattle Street, 3rd Floor, Cambridge, MA 02138, and the individual or entity specified on the Schedule of Services (“Customer“ or “you“). Each of Visallo and Customer are referred to herein individually as a “Party“ and collectively as the “Parties“.
This Agreement consists of the body of this document, and any schedule of services summarizing the Services to be provided by Visallo under this Agreement (each, a “Schedule of Services”). Each Schedule of Services shall be executed in writing. In the case of any conflict among the provisions of these documents, unless otherwise stated in a Schedule of Services, the Agreement shall control followed by the provisions in the applicable Schedule of Services.
Subject to the terms of this Agreement, Visallo agrees to make the services identified in each Schedule of Services (the “Services”) available for provisioning to Authorized Users (defined below) for the term noted in such Schedule of Services, beginning on the Effective Date set forth on the applicable Schedule of Services and until the end of the specified license period for such Schedule of Services (the “Term”). Visallo hereby grants a limited, non-exclusive, non-transferable license to Customer, for access and use of the Services subject to the terms of this Agreement and the applicable Schedule of Services.
After the Effective Date of this Agreement, Visallo will provide Customer the tools and instructions for provisioning Visallo’s proprietary system in a secure cloud environment (“Visallo Platform”). The Services will be provided through Visallo Platform, pursuant to the applicable Schedule of Services. Customer will manage and provision access to the licensed Services in the relevant Schedule of Services to individual end users who are employed by Customer, or otherwise authorized under the Schedule of Services, at its discretion (each an “Authorized User”), and subject to the applicable Schedule of Services. Customer’s access and provisioning of Services to Authorized Users shall be subject to the following provisions:
a) The Services shall only be accessed via the Visallo Platform and used internally by Authorized Users.
b) Login Credentials. Authorized Users must use password-protected log-in credentials (“Login Credentials”) to access the Visallo Platform. Only the individual Authorized User to whom specific Login Credentials apply shall use those Login Credentials and Authorized Users shall not share their Login Credentials with any other individual. Customer assumes the obligation of notifying each Authorized User of the restrictions in this Section 3(b) (Login Credentials).
The Term may be extended by the mutual written agreement of the Parties. Visallo is under no obligation to grant an extension nor to extend the same terms and pricing for any extension of the Term unless specifically agreed to in writing.
Customer shall pay the fees set forth in each Schedule of Services in accordance with the terms thereof. Failure to pay fees as required under a Schedule of Services may result in suspension of access to Services, and if such failure to pay is not remedied within ten (10) business days from the date of Visallo’s notice of such failure to pay, Visallo shall have the right to terminate the relevant Schedule of Services, the Agreement, or both immediately. Such termination will not cancel Customer’s obligation to pay the owed Fees, and Visallo shall be entitled to proceed with any and all legal options available to recover such fees.
a) If Customer acquires, is acquired by, or otherwise merges with one or more Visallo clients that had their own “Visallo Platform License Agreement” (a ““Merger””), Visallo may, upon providing notice and at its sole discretion:
i) Combine the agreements for the entities that were part of the Merger (each a ““Pre-Merger Agreement””) into a single agreement (the ““Merged Agreement””);
ii) If the oldest Pre-Merger Agreement was in effect more than one (1) year, or at such date after the Merger that a Pre-Merger Agreement would have been in effect for more than one (1) year, the fees for each Pre-Merger Agreement will be added together as the fees for the Merged Agreement, effective as of the time of the notice.
b) If Customer acquires a former Visallo client who had a “Visallo Platform License Agreement” that was cancelled within six (6) months of Customer’s public announcement of such acquisition, and the acquisition takes effect and closes, (i) such acquisition will be considered a Merger, and (ii) such previously-cancelled agreement will be considered a Pre-Merger Agreement, allowing Visallo to apply Section 6(a)(ii).
Visallo shall have the right, up to one (1) time per year of this Agreement, at Visallo’s sole cost and expense and upon ten (10) calendar days’ prior written notice (““Audit Notice””) to audit the systems, books and records of the Customer in relation to the Services. Any such audit shall be performed by a certified public accountant or such other third-party auditor as may be mutually agreed to by the parties, shall be conducted during business hours, at offices and times reasonably designated by Customer, and shall be concluded within ninety (90) calendar days following the date of issuance of such Audit Notice.
The following restrictions shall apply to Customer and any Authorized Users to which it grants access to the Services (collectively herein, “Customer”).
a) Customer shall not: (i) disassemble, decompile, reverse engineer, translate, or otherwise attempt to reconstruct Visallo Platform or any of the Services, or attempt to derive or obtain any source code, structure, algorithms, process, technique, technology, know-how, or ideas embodied by, underlying, or contained in Visallo Platform or the Services; (ii) access any data or Intellectual Property from the Services except through the interfaces provided by Visallo; or (iii) use the Services or any information acquired from the Services to create products or services intended to compete with or replace the Visallo Platform or the Services.
b) Visallo retains all rights and remedies afforded under the copyright, trademark, service mark, patent, and other laws of the United States and the States thereof, including without limitation any laws designed to protect proprietary or confidential information. This Agreement is not a waiver of any such rights, including rights that would survive termination of this Agreement.
c) Authorized Users may not use the Services on behalf of any third parties (unless specifically agreed to in a relevant Schedule of Services), nor may they publish or distribute research, work, or studies created using the Services in a manner inconsistent with the terms of this Agreement.
d) Visallo reserves the right to request that Customer terminate an Authorized User’s access to the Services upon prior written notice, for misuse or violations of this Agreement, that have not been remedied within five (5) business days after written notice of such misuse or violations; provided, however, that misuse or violations related to any Applicable Laws (defined below) may, at the advice of legal counsel, shall require that the related Authorized User’s account be immediately suspended without any period of time for remedy. For any such suspensions, the Parties will work in good faith to resolve the noticed issues as promptly as possible.
e) The Visallo Platform may not be installed in a Customer cloud environment in such a way that will cause its code to be automatically backed up or stored on any other system, and any automatic backup on the cloud environment where Visallo Platform sits must have the capability to fully purge and delete the Visallo Platform upon termination of this Agreement.
f) The Visallo Platform may only be used on the specific cloud environment on which it is installed and may not be transferred or ported to any other network. Visallo reserves the right to include tools in the Visallo Platform that will automatically inform Visallo in the event of a breach of this Section 8(f).
This Agreement, the Services provided by Visallo, the Visallo Platform, and any other systems used to provide the Services are considered Confidential Information, subject to Section 10 (Public Information). ““Confidential Information”” shall mean, subject to Section 10 (Public Information), any confidential, proprietary and nonpublic information in written, electronic, verbal or any other form which is related, directly or indirectly, to the Services and disclosed on or after the Effective Date by or on behalf of a Party (the ““Disclosing Party””) to the other Party (the ““Receiving Party””) (or to any Representative of the Receiving Party). As used herein, a Party’s ““Representatives”” shall mean the directors, officers, employees, agents, partners, attorneys, accountants and advisors of such Party or such Party’s affiliates.
a) The following types of information shall not be considered Confidential Information:
i) Information that was a matter of public knowledge prior to the time of its disclosure under this Agreement or became a matter of public knowledge after the time of its disclosure under this Agreement through means other than an unauthorized disclosure resulting from an act or omission by the Receiving Party;
ii) Information that was independently developed or discovered by the Receiving Party without reference to the Disclosing Party’s Confidential Information;
iii) Information that becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not, to the Receiving Party’s knowledge, bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information;
v) Information that was already in the possession of the Receiving Party or its Representatives at the time it was disclosed or made available to the Receiving Party or its Representatives by the Disclosing Party, provided that such Confidential Information was not known by the Receiving Party or its Representatives to be subject to obligations of confidentiality.
b) Further, the obligations of Section 11 (Confidentiality Obligations) shall not apply to any Confidential Information that is required to be disclosed pursuant to applicable laws or regulations (as determined in good faith by Receiving Party’s legal counsel), or with an order of a court or other governmental or regulatory body having jurisdiction or any other legal requirement or process. Should such disclosure be required, the Receiving Party will notify the Disclosing Party in writing of such requirement (if permitted to do so) so that the Disclosing Party may seek a protective order or injunctive relief at its own cost and expense. In such disclosures, the Receiving Party will only disclose that portion of the Confidential Information that is legally required to be disclosed (as reasonably determined by the Receiving Party’s legal counsel).
a) With respect to Confidential Information, the Receiving Party shall:
i) Maintain the Confidential Information in confidence, using at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection;
ii) Restrict disclosure of the Confidential Information solely to those of its Representatives with a “need to know” (“Permitted Representatives”), where a “need to know” means that the Representative requires the Confidential Information in order to facilitate compliance with the terms of this Agreement;
iii) Advise Permitted Representatives who gain access to Confidential Information of their obligations with respect to the Confidential Information;
iv) Make only the number of copies of the Confidential Information necessary to disseminate the Confidential Information to Permitted Representatives or use the Services according to permitted uses; and
v) Ensure that all confidentiality and proprietary notices set forth on the Confidential Information are reproduced in full on such copies.
b) The Receiving Party shall, and shall cause its Representatives to, within five (5) days after any termination of this Agreement return all Confidential Information, including all copies thereof, to the Disclosing Party or, at the Receiving Party’s option, unless prohibited by law, destroy all such Confidential Information and certify the same in writing to the Disclosing Party; provided, however, that the Receiving Party shall have the right to retain a copy of the Confidential Information for audit or regulatory compliance purposes.
The license to use the Services provided in this Agreement, will provide Customer with access to Visallo’s patented or patentable information, copyrights, trademarks, service marks, and similar intellectual property and related information via its proprietary software portals, dashboards, and other Service delivery technology (“Intellectual Property”). Intellectual Property includes Visallo’s analytics software, graphical user interface, and proprietary data including but not limited to data in databases accessible through the Services as well as the underlying software environment, infrastructure, and engine upon which Services are built and from which Services are delivered (the (“Software”). Intellectual Property accessible through the Services remain Visallo’s Intellectual Property, and no conveyance of ownership, interest, or rights to such Intellectual Property is made nor intended herein. Visallo represents, warrants, and covenants that the content and data provided through the Services, and the use of any provided Intellectual Property in accordance with the terms of this Agreement do not and will not infringe upon or misappropriate any intellectual property right of a third party.
Customer will retain ownership of any derivative research, analysis, and ideas Customer or its Authorized Users create while using the Services (“Customer Output”), but only to the extent such Customer Output does not incorporate all or a substantial portion of any Visallo data accessible through the Services in native form. For the avoidance of doubt, the creation of software through the use of the Services that duplicates or competes directly with Visallo’s Services or Software is not Customer Output. Visallo shall (i) treat Customer Output as Customer’s Confidential Information and (ii) shall only use Customer Output as required to provide the Services, technical support, and assistance to Customer and its Authorized Users.
a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York and the Parties hereby waive any principle of conflict or choice of laws that would cause the application of the laws of any other jurisdiction.
b) If the Customer has an office in the United States, any legal action brought in relation to this Agreement shall be brought in a Federal or State court located in New York County, New York State.
c) If Customer does not have an office located in the United States, any legal action shall be settled by arbitration under the UNCITRAL Arbitration Rules in effect on the date of this Agreement. The appointing authority shall be the International Centre for Dispute Resolution. The case shall be administered by the International Centre for Dispute Resolution under its Procedures for Cases under the UNCITRAL Arbitration Rules, and all proceedings will be held in New York City, New York. The language of such arbitration will be English.
d) At any time, a Party may seek preliminary, interim or conservatory measures from a court. The Parties agree that in the case of an alleged breach of Section 8 (License Restrictions) or Section 11 (Confidentiality Obligations), a Party may seek to prevent further unauthorized disclosure of Confidential Information or misuse of Services by seeking a temporary injunction or temporary order of specific performance (each an “Order”), and in seeking such Orders, is not required to prove actual damages or post a bond. In any legal action before a court between the Parties, each Party agrees not to object to a request for a court order requiring that the Parties not disclose any part of such legal action to the public.
For any dispute, controversy or claim arising out of or relating to this Agreement (“Claims”), the Parties will use good faith efforts to resolve any issues by informal means prior to initiating litigation, and agree to treat any such disputes as confidential discussions between the Parties. Further, if either Party initiates litigation related to this Agreement, any legal filings shall be filed under seal or similar protection (so as to not make such filings a matter of public record), and such filings shall remain confidential from the public unless and until a court with proper jurisdiction permits public disclosure.
a) Either Party may terminate this Agreement or any Schedule of Services upon prior written notice to the other Party if one Party breaches any covenant, obligation, representation or warranty in this Agreement and fails to cure such breach within ten (10) business days after written notice thereof from the non-breaching Party.
b) The licenses referred to in a Schedule of Services shall terminate immediately upon termination of such Schedule of Services or termination of this Agreement. After termination of this Agreement, the Visallo Platform must be immediately deleted from any Customer systems, and confirmation must be sent in writing, signed by a party with authority to act on behalf of the Customer certifying compliance with this termination obligation.
c) As to any Confidential Information retained by either Party after termination of a Schedule of Services or this Agreement, Section 11 (Confidentiality Obligations) shall survive termination. Further, Section 7 (Audit), 8 (License Restrictions), Section 13 (Customer Output), 14 (Governing Law), 15 (Disputes), Section 17 (Disclaimers, Liability and Indemnification) shall survive termination.
Although Visallo obtains information for inclusion in the Services that it considers reliable, the information and Services are provided to Customer “as is” and neither Visallo nor any of its affiliates, nor any of their information providers or any third party involved in providing information delivered by the Services makes any representation or warranty of any kind with respect to the timeliness thereof, the results to be obtained by the use thereof, or any other matter related thereto. Visallo expressly disclaims, and Customer waives, any and all implied warranties, including without limitation, warranties of originality, accuracy, completeness, timeliness, merchantability and fitness for a particular purpose. The Services allow users to conduct analysis and research. Visallo is not an investment adviser or broker dealer, and the Services are not investment advice. Visallo will indemnify Customer from and against third party claims to the extent related to or arising from (a) willful misconduct by Visallo, or (b) breach by Visallo of the representations in Section 12 (Intellectual Property). Neither Visallo nor any of its affiliates will be liable to Customer for (i) indirect, incidental, consequential, exemplary, punitive, or special damages, or for any loss of profit (whether direct, indirect, or consequential) or (ii) for aggregate damages in excess of amounts paid or properly payable under an applicable Schedule of Services during the twelve-month period prior to the date the cause of action arose, regardless of the form of the action or the theory of recovery, even if Visallo was advised of the possibility of such damages. Customer agrees to indemnify and hold Visallo, its affiliates and respective directors, officers, employees and agents harmless against all third party claims and expenses caused by (i) Customer’s or any Authorized User’s use of the Services in breach of this Agreement, (ii) negligence, or (iii) any willful acts by Customer inconsistent with this Agreement. Further, Customer agrees to assume all liability for Authorized Users it provisions services to and will hold harmless and indemnify Visallo for such Authorized User’s acts or omissions, including negligence.
This Agreement will terminate upon the expiration of the Term, or as otherwise agreed to by the Parties pursuant to Section 4 (Extension of Term) or as terminated pursuant to Section 16 (Termination).
This Agreement shall be binding upon and inure to the benefit of both Parties and their respective successors and assigns, including any corporation with which, or into which, a Party may be merged or that may succeed to a Party’s assets or business. Customer will not assign this Agreement without the prior written consent of Visallo. Any assignment contrary to the terms of this Section 19 (Successors and Assigns) shall be deemed null and void.
Customer acknowledges and agrees that Visallo may delegate certain of its responsibilities, obligations and duties under or in connection with this Agreement to a third party or an affiliated company of Visallo, which may discharge those responsibilities, obligations and duties on behalf of Visallo subject to the same obligations under this Agreement. For the avoidance of doubt, provision of the Services shall only be delegated to affiliates of Visallo.
Nothing contained in this Agreement shall be deemed or construed to be a partnership, joint venture, fiduciary relationship, or any other relationship other than the contractual relationship defined in this Agreement.
Visallo agrees to obtain and maintain during the Term (and any extensions) of this Agreement all necessary regulatory approvals, licenses and/or permits applicable to its business and its provision of the Products and Services, and Visallo will comply with any and all Applicable Laws applicable to its business and its provision of the Services. Both Parties agree that they currently comply with all Applicable Laws, and will continue to do so during the Term (and any extensions) of this Agreement. For the purposes of this Agreement “Applicable Laws” means, with respect to the Parties, any applicable laws (including common law and national, federal, state, provincial and local laws), codes, statutes, ordinances, rules, regulatory bulletins, and guidance (including those of any regulatory bodies or agencies), regulatory examinations or orders, decrees and orders of any country, the European Union, or other national, federal, commonwealth, state, provincial or local jurisdiction as may be amended and in effect from time to time during the Term (and any extensions) of this Agreement. Neither Party nor any individual, entity or organization holding any material ownership interest in a Party, nor any officer, director, or prospective Authorized User, is an individual, entity, or organization with whom any United States law, regulation, or executive order prohibits United States companies and individuals from dealing, including, without limitation, names appearing on the Specially Designated Nationals list and each Party covenants to the other that it will not cause the Party to be in violation of any regulation administered by the U.S. Department of the Treasury’s Office of Foreign Asset Control.
In case any provision of this Agreement shall be invalid, illegal or otherwise unenforceable, it shall be considered deleted, and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
No delay or omission by a Party in exercising any right under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by a Party on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.
The captions of the Sections of this Agreement are for convenience of reference only and in no way define, limit or affect the scope or substance of any Section of this Agreement.
This Agreement, including any Schedule of Services, modifications, waivers or notifications relating thereto, may be executed and delivered electronically and in counterparts. Each counterpart shall be an original, but which together shall constitute one and the same instrument.
Neither party shall be responsible for any delay or failure in performance of its obligations under this Agreement resulting from acts beyond their control, including but not limited to, any act of God, act of governmental authority, act of public enemy, act of terrorism, computer or system failure, or due to war, riot, fire, flood, civil commotion, insurrection, labor difficulty (including, without limitation any strike, or other work stoppage or slowdown), or severe or adverse weather conditions.
Notices required under this Agreement shall be in writing and delivered via electronic mail, with a hard copy delivered personally, via first-class post or equivalent next-business-day service. Day to day communications and interactions between the Parties or with Authorized Users shall be guided by any method of communication that the Parties choose to use, and any technical or support issues shall be handled via email between Customer and the Visallo account manager at the addresses listed in the applicable Schedule of Services.
If to Visallo, notices shall be delivered to:
Visallo 7900 Tysons One Boulevard Suite 270 Tysons, VA 22102 ATTN: Visallo Legal
With an electronic copy to Legal@Kensho.com
This Agreement supersedes all prior agreements, written or oral, between the Parties relating to the subject matter of this Agreement. This Agreement may not be modified, changed or discharged in whole or in part, except by an amendment agreed to in writing, signed by the Parties.