Last updated July 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 schedules 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 to Customer beginning on the Commencement Date and through the License Period set forth on the applicable Schedule of Services (the “Term”). Visallo hereby grants a non-exclusive, non-transferable license to Customer, for the access and use of the Services. Notwithstanding anything else in this Agreement, Customer’s affiliates (existing from time to time) may access and use the Services as if they were “Customer” hereunder. As used in this Agreement, “affiliate(s)” means, with respect to a Party at the applicable time: Any person, firm, corporation, partnership (including general partnerships, limited partnerships, and limited liability partnerships), limited liability company, joint venture, business trust, association or other entity that directly or indirectly controls, is controlled with or by or is under common control with, such Party. For purposes of the foregoing, “control” will mean, with respect to a corporation, the ownership, directly or indirectly, of 50% or more of the voting power to elect directors thereof.
After the Effective Date of this Agreement, Customer will provide Visallo with the URL suffix that it uses for its employees (e.g. “@CustomerURL.com”), and Visallo shall enable access to anyone with that e-mail suffix via www.Visallo.com, subject to the following provisions:
a) Visallo or Customer will provide Customer’s employees with password-protected log-in account credentials (“Login Credentials”) to the Services (each an “Authorized User”), and each Authorized User may access and use the Services provided to Customer hereunder;
b) Each Authorized User must be employed by Customer or its affiliates and remain employed to be entitled to access the Services provided to Customer;
c) If an Authorized User ceases to be employed by Customer or its affiliates, Customer shall notify the Visallo account manager identified in the Schedule of Services as promptly as possible, but in any event within twenty-four (24) hours of such cessation of employment of the Authorized User so that Visallo may terminate access to Services for such Authorized User;
d) Customer may submit requests to block or unblock specific Login Credentials from granting access to Services at any time, by emailing the Visallo account manager identified in the Schedule of Services (“Block Request”);
e) Visallo shall address a Block Request, subject to the terms of this Agreement and using best efforts, within twenty-four (24) hours of receipt of such Block Request.
The Term of this Agreement 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 Agreement immediately.
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).
As part of the Services, Visallo may, at its sole discretion, provide for access to features that are in development, and are being beta tested or prototypes of future products (“Beta Features”). Such Beta Features will be marked as “beta” or “lab” features on the Services, and due to their nature, should only be used experimentally and not relied upon for studies, research, or other permitted uses. Visallo may, at its sole discretion, provide regular support for these Beta Features, and may discontinue access to or support for them at any time at its sole discretion. Beta Features are Visallo’s Intellectual Property (defined below).
Customer shall be responsible for providing any hardware, network access, communications and network connections, and any other technology needed for Authorized Users to access or use the Services. Access of the Services requires (i) Internet access; (ii) and a compatible Internet browser (either Google Chrome v35 or higher, or Firefox ESR 38.2.0 or higher).
a) Customer shall not: (i) disassemble, decompile, reverse engineer, translate, or otherwise attempt to reconstruct 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 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 or based on the Services to create products or services intended to compete with or replace 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 only use the Services for the benefit of the Customer, and may not use the Services on behalf of any third parties, nor may they publish or distribute research, work, or studies created using the Services in a manner inconsistent with the terms of this Agreement. For the avoidance of doubt, Customer may distribute Customer Output from the Services to its clients.
d) Visallo reserves the right to 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 ten (10) business days after written notice of such misuse or violations; provided, however, that misuse or violations related to any Applicable Laws may, at the advice of legal counsel, result in the related Authorized User account being suspended whether or not notice has been received by Customer. For any such suspensions, the Parties will work in good faith to resolve the noticed issues as promptly as possible.
This Agreement, the Services provided by Visallo, and the systems used to provide the Services are considered Confidential Information, subject to Section 11 (Public Information). “Confidential Information” shall mean, subject to Section 11 (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;
iv) 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.
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.
c) Parties may disclose this Agreement to bona fide potential investors, lenders, and acquirors or acquirees, to the extent necessary in connection with a proposed equity or debt financing, acquisition or merger, for so long as recipients of such disclosure are bound in writing to maintain the confidentiality of such information on terms at least as protective as the ones in this Agreement.
d) The obligations of this Section 12 (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).
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 (“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 (the “Software”). Intellectual Property accessible through the Services remains 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 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 will have the right to track all use of the Services, and see all Customer Output, to ensure that Authorized Users get fully up to speed with the Services, and to ensure compliance with this Agreement and authorized use of Services. Notwithstanding anything set forth in this Agreement, Visallo shall (i) not disclose Customer Output to any third parties without the prior written consent of Customer, (ii) treat Customer Output as Customer’s Confidential Information and (iii) not use Customer Output except 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 9 (License Restrictions) or Section 12 (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) As to any Confidential Information retained by either Party after termination, Section 12 (Confidentiality Obligations) shall survive termination. Further, the first paragraph of Section 9 (License Restrictions), Section 14 (Customer Output), 15 (Governing Law), 16 (Disputes), Section 18 (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) gross negligence or willful misconduct by Visallo, or (b) breach by Visallo of the representations in Section 13 (Intellectual Property). Visallo will not 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 a relevant Schedule of Services under this Agreement 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 use of the Services in breach of this Agreement, or (ii) any negligent or intentional acts or omissions by Customer.
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 17 (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 20 (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.
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 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 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
Customer consents to the use of its name and logos for the purposes of press releases and Visallo’s client list (which may be published on its website, and in hard copy materials, or displayed in Visallo facilities). Customer may use Visallo’s name and logos for purposes contemplated in this Agreement.
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.