This Agreement governs your (“Customer,” “you,” or “your”) use of the Service (as defined in the ‘Definition’ section below). You represent that (1) you have read, understand, and agree to be bound by the Terms of Service set out below (“Agreement”), (2) you are of legal age to form a binding contract with Datawiza Technologies, Inc. (“Datawiza,” “we,” “our,” or “us,” and collectively with Customer, the “Parties”), and (3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you have named as the user, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, “Customer,” “you,” and “your” will refer to the entity you are representing.
We may update this Agreement from time to time by providing you with notice of material changes. The most current version of this Agreement will be posted on https://www.datawiza.com/ (the “Site”). Any changes to this Agreement will be effective immediately for all users in instances to comply with applicable law, for new users of the Service and, for all other users, any changes to this Agreement will be effective as of fifteen (15) days after posting notice of such changes on the Site. If we determine in our sole discretion that an update is material, we will provide notice of such material change to you through the Service, Site, or our blogs, and/or by email to the email address of your account administrator. We may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. If you do not agree to any change(s), you may notify us of any objection pursuant to the ‘Notices’ section below, and your sole remedy is to stop using the Service. Any such termination by you shall be without penalty except as specified in the Agreement. Otherwise, your continued use of the Service constitutes your acceptance of such change(s). Please check the Site regularly to view our then-current Agreement.
- Use of the Service. Datawiza grants to Customer the right to use and access the Service for its business purposes only in accordance with the usage/subscription plan and this Agreement. We may choose to modify or discontinue the Service, including any portions of the Service, as we update our offerings and add more features. We may stop, suspend, or modify the Service and related services at any time without prior notice to you. If we suspend or terminate your use, we will try to let you know in advance if practicable.
- Support. Datawiza provides support to Customer via the public Datawiza Documentation, currently located at https://docs.datawiza.com/.
- Restrictions. Customer will not and will not permit anyone else to do any of the following: (a) use the Service to develop a similar or competing product or service; (b) obtain or attempt to obtain the Service by any means or device with intent to avoid paying the fees that would otherwise be payable for such access or use; (c) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service or any related features; (d) modify or create derivative works of the Service or copy any element of or related features with the Service; (e) publish benchmarks or performance information about the Service; (f) fail to perform or observe the obligations set out in Section 2.2 (Obligations); (g) perform any security integrity review, penetration test, load test, denial of service simulation, or vulnerability scan on Datawiza; (h) provide access to or sublicense the Service to a third party other than a Third-Party Service; or (i) use the Service on behalf of, or to provide any product or service to, third parties.
Use of Customer Data to Provide the Service. Datawiza needs a limited license to Customer Data in order to provide the Service. For example, depending on the Service subscribed to, the Service and related features may create visualization aides, such as dashboards, charts, and graphs, which requires, among other rights, a right to create derivative works. Customer grants Datawiza a non-exclusive, worldwide right to use, copy, store, transmit, display, modify, and create derivative works of the Customer Data, to the extent necessary to manage, improve, and provide the Service and related services, as well as to provide support to Customer.
- Customer, through its use and configuration of the Service, is instructing Datawiza to process Customer Data. For example, the type, quantity, and frequency of Customer Data received by Datawiza is pursuant to Customer’s decisions and instructions. Customer is responsible for its configuration choices, and any risks resulting from Customer’s disablement of any Datawiza default privacy or security settings or features. Customer shall implement any Software updates immediately after Datawiza makes such available for general release. Customer is responsible for Customer Data, including its content and accuracy. Customer agrees that its use of the Service and related features will comply with the Documentation and this Agreement.
- Customer represents and warrants to Datawiza that it has all necessary rights, consents, and permissions to grant Datawiza the rights in Section 2.1 (Use of Customer Data to Provide the Service) and to use and submit Customer Data to the Service, all without violating or infringing any applicable laws, third-party rights (including intellectual property, publicity, or privacy rights), or any terms or policies governing Customer Data.
- Customer must not send any “Prohibited Data” to the Service, which means any: (1) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (3) credit, debit, or other payment card data or financial account information, including bank account numbers; (4) credentials granting access to an online account; (5) social security numbers, driver’s license numbers, or other government identification numbers; (6) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); or (7) any data similar to the above protected under foreign or domestic laws. Customer also must not use the Service or related features in connection with any activities where its use or failure could lead to death, personal injury, or environmental damage, such as in life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control (collectively, “High Risk Activities”). Customer acknowledges that the Service and related features are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Datawiza is not a Business Associate as defined under HIPAA. Therefore, notwithstanding anything else in this Agreement, Datawiza has no liability for Prohibited Data processed, or High Risk Activity-related use, in connection with the Service.
Systems Operations Data. Datawiza may collect and process utilization statistics and other technical data regarding use, configuration, and deployment of the Service to operate, manage, improve, instrument, benchmark, and support the Service; provided, Datawiza will not disclose any information derived from such data if doing so would make it possible for a third party to identify Customer or any individual natural person.
Third-Party Services. Customer may choose to use the Service together with Third Party Services. Customer acknowledges that Third-Party Services do not form part of the Service and that Customer’s use of Third-Party Services is subject to Customer’s agreement with the relevant provider and not this Agreement. Datawiza bears no responsibility or liability for Third-Party Services, including their security, availability, functionality, or inoperability, or any effect they may have on your Customer Properties or how the Third-Party Services or their providers use Customer Data. If Customer enables a Third-Party Service with the Service, Datawiza may access and exchange Customer Data with the Third-Party Service on Customer’s behalf and instruction. Such interaction with a Third-Party Service does not expand Customer rights or our obligations under this Agreement.
Confidential Information. For the purposes of this Agreement, the Parties define “Confidential Information” to mean any of the information disclosed under this Agreement that is designated by the disclosing party as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Datawiza’s Confidential Information includes any technical, pricing, or performance information about the Service or related services.
Obligations. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided the receiving party remains bound to confidentiality obligations no less protective than this Section.
Exclusions. These confidentiality obligations do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; (d) it independently developed without using the disclosing party’s Confidential Information; or (e) is Customer Data. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.
Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section.
Neither Party grants the other any rights or licenses not expressly set out in this Agreement. Except for Datawiza’s use rights in this Agreement, as between the Parties, Customer retains all intellectual property and other rights in Customer Data. Except for Customer’s use rights in this Agreement, Datawiza and its licensors retain all intellectual property and other rights in the Service, the Documentation, and related Datawiza technology, services, templates, formats, and dashboards, including any modifications or improvements to these items made by Datawiza. If you provide Datawiza with feedback or suggestions regarding the Service or other Datawiza offerings, we may use the feedback or suggestions without restriction.
THE SERVICE, SUPPORT, AND ALL RELATED DATAWIZA SERVICES ARE PROVIDED “AS IS”. DATAWIZA AND ITS SUPPLIERS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. DATAWIZA DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT WE WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. DATAWIZA IS NOT LIABLE FOR ISSUES WITH THE SERVICE DUE TO CUSTOMER NOT INSTALLING THE LATEST VERSION OF THE SOFTWARE OR DELAYS, FAILURES, OR PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR CONTROL. DATAWIZA MAKES NO WARRANTIES CONCERNING RESULTS TO BE ACHIEVED FROM THE SERVICE. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.
Limitations of Liability
- Limitation of Liability. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL DATAWIZA OR ITS CUSTOMER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF DATAWIZA OR ONE OF ITS CUSTOMERS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. IN NO EVENT SHALL DATAWIZA’S LIABILITY FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF OR RELATING TO, IN WHOLE OR IN PART, THIS AGREEMENT, THE SOFTWARE, THE SERVICE, OR THE DOCUMENTATION, WHETHER UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, EXCEED THE SUM OF THE SUBSCRIPTION FEES, SERVICES FEES, LICENSE FEES, SUPPORT FEES, AND OTHER AMOUNTS PAID BY YOU TO DATAWIZA. DATAWIZA WILL NOT HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MEASURES, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE.
- Indemnification. Customer will defend Datawiza from and against any third-party claim to the extent related to or arising from Customer Materials, Customer Data, or Customer’s breach or alleged breach of (a) this Agreement, or (b) any applicable law or regulation, and Customer will hold harmless and indemnify Datawiza against any damages or costs awarded against Datawiza (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim. Customer may not settle any claim without Datawiza’s prior written consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action. Datawiza may participate in a claim with its own counsel at its own expense.
Term and Termination
- Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.
- Modification, Termination of Service. Datawiza reserves the right at any time and from time to time to modify the Service (or any part thereof) with or without notice. Customer agrees that Datawiza may at any time and for any reason terminate the provision of all or any portion of the Service. Notwithstanding the foregoing, Datawiza will provide at least five (5) days’ notice to Customer prior to terminating or suspending the Service (if provided to Customer); provided that such Service may be terminated immediately if (i) Customer has breached this Agreement or (ii) Datawiza reasonably determines that it is commercially impractical to continue providing such Service in light of applicable laws.
- Effect of Termination. Upon expiration or termination of this Agreement, Customer’s access to the Service will immediately cease and Datawiza will delete Customer Data after termination or expiration. Confidential Information may be retained in the Customer’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions. Datawiza will have no liability to you related to suspension or termination of this Agreement or your Account.
- Survival. These Sections survive expiration or termination of this Agreement: Restrictions, Obligations, Systems Operations Data, Disclaimers, Confidentiality, Ownership, Limitations of Liability, Indemnification, Term and Termination, and General Terms.
- Technical Services. From time to time, Customer may choose to engage Datawiza for training, enablement, or other technical services in respect of the Service (“Technical Services”). Technical Services are not required in order for Customer to use and access the Service and Customer agrees that Technical Services do not form part of the Service.
- Delivery; Use. Customer will give Datawiza timely access to Customer materials, systems, and other resources (“Customer Materials”) reasonably needed to provide the Technical Services, and if Customer fails to do so, Datawiza’s obligation to provide Technical Services will be excused until access is provided. Datawiza may make use of service partners to provide the Technical Services. Customer represents and warrants to Datawiza that it has all necessary rights, consents, and permissions to provide the Customer Materials to Datawiza. Customer, as between the parties, retains all ownership rights in the Customer Materials and grants to Datawiza a limited right to use and access the Customer Materials only to provide the Technical Services to Customer. Subject to maintaining a current Account, Customer is granted a non-exclusive and non-transferable license to use the product of any Technical Services for its own internal business purposes only and consistent with the licenses and restrictions set forth in this Agreement. THE ENTIRE LIABILITY OF DATAWIZA UNDER OR IN CONNECTION WITH THE TECHNICAL SERVICES WILL AT ALL TIMES BE LIMITED TO FIFTY U.S. DOLLARS ($50).
- Assignment. Customer may not assign this Agreement without the prior written consent of Datawiza. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of Customer’s permitted successors and assigns.
- Governing Law, Jurisdiction, and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions or the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Santa Clara, California, and both Parties submit to the personal jurisdiction of those courts.
- Force Majeure. Datawiza shall not be liable for, or be considered to be in breach of or default under this Agreement (other than with respect to payment obligations) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including denial-of-service attacks, strikes, shortages, epidemic, pandemic, widespread security breaches (e.g., heartbleed bug), riots, fires, flood, storm, earthquakes, explosions, acts of God, war, terrorism, and governmental action (“Force Majeure”) so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
- Notices. Notices to you will be deemed given upon email to your account administrator. Datawiza may also provide notices to you electronically, including but not limited to through the Site or Service, which shall be deemed given to you upon dispatch including if the last email address you provided to us is invalid, or for any reason that any such notice is not capable of delivery to you. Customer may update its address with notice to Datawiza in accordance with this section. You are responsible for providing us with your most current email address and updating it as applicable. You may give us notice at: Datawiza Technologies, Inc., 160 Saratoga Ave, Suite 230, Santa Clara, CA 95051, email: email@example.com. Such notice shall be deemed given when received by Datawiza by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the foregoing address.
- Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
- Service Support Providers. Datawiza uses third-party hosting and other service providers (e.g. data center providers or support ticketing systems) in our supply of the Service and related features and support.
- Independent Contractors. The Parties are independent contractors, not agents, partners, or joint venturers.
- Open-Source Software. The Customer acknowledges that some portions of the Software may consist of open-source software obtained from Customer to Datawiza under certain license agreements (“Open Source License Agreements”). Open-source software within the Software is subject to additional terms imposed in the applicable open source license agreements.
- Anti-Corruption and Export. Customer will, and will cause its employees, consultants, and agents to, comply with the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. Customer agrees to comply with all applicable laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control, or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designated countries, entities, and persons (“Sanctions Targets”); and agrees not to directly or indirectly export, re-export, or otherwise deliver the Service to a Sanctions Target, or broker, finance, or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that Customer is not a Sanctions Target or prohibited from receiving the Service. The Service will be used for non-prohibited, commercial purposes by non-prohibited Users and will not be exported or transferred to China or any Sanctions Target.
“Account” means the online account or subaccounts that Datawiza provides for Customer to manage its use of the Service.
“Affiliate” means an entity where Customer owns greater than 50% of the voting securities, provided that such an entity will be considered an Affiliate for only such time as such equity interest is maintained.
“Customer Data” means the data, information, or content that Customer and Users send to an Account from the Software, the Customer Properties, and Third-Party Services to the Service.
“Customer Properties” includes Customer’s websites, infrastructure, networks, customer’s data (including personal identifiable information related to the business of Customer), mobile applications, or other systems, as well as Customer accounts on Third-Party Services.
“Documentation” means the Datawiza technical guides and documentation made available from the dedicated ‘Documentation’ page of the Datawiza website.
“Service” means the generally-available Datawiza proprietary cloud service (e.g., Access Broker) provisioned for use on a paid, unpaid, evaluation, or trial basis, the Software, and any updates, corrections, bug fixes, modifications, improvements, new features, and functionality thereto.
“Software” means the distributed software, APIs, scripts, or other code proprietary to Datawiza provided with the Service.
“Third-Party Services” means any third-party platform, add-on, service, or product not provided by Datawiza and that a User integrates or enables for use with the Service, including third-party applications and plug-ins.