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Current as of: June 29, 2021
PLEASE READ THESE PRIMER ENTERPRISE TERMS AND CONDITIONS (THE “TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PRIMER TECHNOLOGIES, INC. (“PRIMER”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH PRIMER WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PRIMER’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PRIMER SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form, such as limitations on maximum Named User Accounts (as defined below)) Primer grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the services specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Primer’s applicable official user documentation for such Service (the “Documentation”). In the event of any conflict between this Agreement and an Order Form, the Order Form shall control but only with respect to the particular Services purchased through such Order Form. A “Named User Account” is defined as an account for accessing the Service which is associated with a single individual employee of Customer (regardless of whether the individual is actively using the Service at any given time). Named User Accounts may not be shared between individuals or used by any individual other than the individual associated with such Named User Account. The Service may only be used and accessed by Named User Accounts. In addition, the outputs and other data generated by the Service (“Outputs”) may only be accessed and made available to the Named User Accounts (and without limiting the foregoing, the Outputs may not be placed in any location that is accessed or accessible by individuals who do not have Named User Accounts).
In the event that Customer requires any standard or custom implementation assistance or services to be performed by Primer in connection with the Service, a description of such assistance or services (“Implementation Assistance”) and the fees for such Implementation Services shall be set forth on such Order Form, and Primer shall use reasonable commercial efforts to provide such Implementation Assistance. If Primer provides Implementation Assistance in excess of any agreed-upon hours estimate, or if Primer otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Primer at its then-current hourly rates for consultation.
Subject to Customer’s payment of all applicable fees, Primer will use commercially reasonable efforts to provide support and uptime for each Service in accordance with Primer’s support and uptime standards.
From time to time, Primer may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Primer shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Primer may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Primer shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
As between the parties, Primer retains all right, title, and interest in and to the Services and all other artificial intelligence or machine learning algorithms or models embodied therein, and all other software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Primer for the purposes of this Agreement, including any copies and derivative works of the foregoing (the “Primer IP”). Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may from time to time provide suggestions, comments or other feedback to Primer with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Primer notwithstanding anything else. Customer shall, and hereby does, grant to Primer a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Primer’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.
Without limiting any of the foregoing, with respect to Customer’s use of the Primer Automate service (the “Automate Service”), Primer agrees to provide to Customer the models (in the standard Primer Automate form and format) resulting from the input of Customer Data into the Automate Service (the “Customer Models”). Primer hereby grants to Customer a nonexclusive, worldwide, nontransferable, royalty-free license to any Primer IP embodied in the Customer Models solely to the extent necessary in order for the Customer to use the Customer Models.
Customer shall pay Primer fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Primer’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Primer shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Primer’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination,” below, such renewal shall include the additional fees for such excess users and usage.
Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Primer product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Primer may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (ix) “crawl,” “scrape,” or “spider” any page, data, or portion of or relating to the Service (or any information, data or content made available through the Service ), whether through use of manual or automated means, or (x) use the Service in a manner that violates applicable laws or regulations. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data (as defined below) onto the Service. Customer (i) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Primer, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights and consents necessary to use and provide the Customer Data to Primer as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Customer agrees that it shall not provide any information to Primer that is considered (i) “personal health information,” as defined under the Health Insurance Portability and Accountability Act, unless Customer has entered into a separate agreement with Primer relating to the processing of such data; (ii) government issued identification numbers, including Social Security numbers, drivers’ license numbers or other state-issued identification numbers; (iii) financial account information, including bank account numbers; (iv) payment card data, including credit card or debit card numbers; or (v) “sensitive” personal data, as defined under the European Union’s General Data Protection Regulation or any other applicable data privacy law, including racial or ethnic origin, political opinions, religious beliefs, trade union membership, physical or mental health or condition, sexual life or the commission or alleged commission any crime or offense. Primer shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Primer is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Primer’s gross negligence or willful misconduct. Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Primer may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer, (B) testing, improving and operating Primer’s products and services, and (C) generating Aggregated Anonymous Data (as defined below), and (ii) freely retain, use and make available Aggregated Anonymous Data for Primer’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Primer’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Primer in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
In the event and to the extent that Customer is a controller or processor of Personal Data (as defined in the DPA) that is subject to certain Data Protection Laws (as defined in the DPA) and Customer wishes to execute a EU Data Processing Addendum (the “DPA”), Customer may do so by submitting a request to email@example.com. Promptly upon Primer’s receipt of Customer’s requests, Primer will send Customer a DPA for execution. To the extent that the Customer Data includes any personal data, (i) Primer will process, retain, use, and disclose such personal data only as necessary to provide the Services hereunder, which constitutes a business purpose, (ii) Primer agrees not to sell such personal data, to retain, use, or disclose such personal data for any commercial purpose other than providing the Services, or to retain, use, or disclose such personal data outside of the scope of this Agreement. Primer understands its obligations under applicable data protection laws and will comply with them.
Primer will follow industry standards to safeguard and maintain the integrity of Customer Data, utilizing commercially reasonable security and backup procedures. If Primer becomes aware that any Customer Data held by Primer accessed by a third party without authorization or otherwise illegally hacked (a “Breach”), Primer will, to the extent legally permitted, notify Customer as soon as reasonably practical and will reasonably cooperate with Customer to remediate the unauthorized access. Primer shall not be liable for any Breach provided that Primer has operated in compliance with this Section 10.
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date of such Order Form, and unless earlier terminated as set forth herein, shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and following the Initial Order Form Term, shall automatically renew for additional successive periods of equal duration to the Initial Order Form Term (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable.
In the event of a breach of this Agreement by either party, the non-breaching party may terminate this Agreement if the breaching party fails to remedy such breach within sixty (60) days of receipt of such notice.
Without limiting the foregoing, Primer may suspend or limit Customer’s and Customer affiliates’ access to or use of the Service if Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Primer’s ability to provide access to the Service to other customers; provided that: (a) Primer shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Primer shall provide prompt written notice to Customer describing the nature of the damage or degradation; and (c) Primer shall reinstate Customer’s and Customer affiliates’ use of or access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of Customer as Indemnitor), or (ii) the Service (in the case of Primer as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Primer do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Primer (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Primer, (iv) combined with other products, processes or materials not provided by Primer (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO PRIMER HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
Customer acknowledges and agrees that: (i) the Service may incorporate certain information, data and materials received from Primer’s third party licensors and data vendors and/or operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Integrations”); (ii) Third Party Integrations provided directly through Primer may only be used in conjunction with the Service; and (iii) Customer’s use of the Third Party Integrations shall be subject to (and Customer agrees it is bound by) any additional terms and conditions applicable to use of such Third Party Integrations, as they may be provided and/or modified from time to time by Primer and/or its third party licensors and data vendors. Primer cannot and does not guarantee that the Service shall incorporate (or continue to incorporate) any particular Third Party Integrations and does not make any representations or warranties with respect to Third Party Integrations. Primer is not responsible for the operation of any Third Party Integrations nor the availability or operation of the Service to the extent such availability and operation is dependent on Third Party Integrations.
This Agreement represents the entire agreement between Customer and Primer with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Primer with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Primer may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.