These Terms and Conditions (“Platform Terms”) together with the fully executed Subscription Agreement (collectively, the “Agreement”) is made and entered into by and between between Agora Systems, Inc. and the Customer identified on the Subscription Agreement to which these Platform Terms are attached (each a “Party” and together the “Parties”).
1.1 “Agora Technology” means, individually or together, the Platform, the Documentation, and any software, technology or data provided by Agora to Customer, and includes any Updates to the foregoing.
1.2 “Agreement” means, collectively, the Subscription Agreement, these Platform Terms, and any other exhibits or addenda attached to the Platform Terms (if any).
1.3 “Documentation” means any documentation or information provided or made available by Agora to Customer under this Agreement.
1.4 “Effective Date” has the meaning given in the Subscription Agreement.
1.5 “Platform” means Agora’s software services.
1.6 “Term” has the meaning given in Section 5.1.
1.7 “Third Party Technology” means any software, code, algorithms, processes, methods, inventions, or other technology which is not owned by Agora.
1.8 “Updates” means any Inventions, update, upgrade, enhancement, new version, new feature or functionality, change, or other modification to the Platform or any other Agora Technology.
2. GRANTS AND RESTRICTIONS
2.1 License and Access Rights Grant. Subject to the terms and conditions of this Agreement, Agora hereby grants to Customer a limited, non-exclusive, non-sublicenseable, nontransferable, royalty-free license during the Term to: use the Platform in accordance with the Documentation; and use, copy, and reproduce Documentation as reasonable necessary to support Customer’s use of the Platform.
2.2 Restrictions. The licenses granted to Customer in this Agreement do not include any right to, and Customer will not: modify, translate, or create a derivative work of any portion of the Agora Technology; sell, lease, loan, provide, distribute or otherwise transfer any portion of the Agora Technology to any third party; reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the source code of Agora Technology; remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Agora Technology; or cause or permit any third party to do any of the foregoing.
2.3 Feedback. If Customer provides any feedback to Agora concerning the functionality and performance of any portion of the Platform (including identifying potential errors and improvements), Customer hereby assigns to Agora all right, title, and interest in and to the feedback, and Agora is free to use the feedback without payment or restriction.
2.4 Reservation of Rights. All rights not expressly granted in this Agreement are reserved. No additional rights whatsoever (including, without limitation, any implied licenses) are granted by implication, estoppel or otherwise.
3. IMPLEMENTATION AND SERVICES
3.1 Implementation of Platform. Agora will integrate with Customer’s systems, configure, and make available the Platform in accordance with the Subscription Agreement. Specific milestones and timelines will be as set forth in the Subscription Agreement.
3.2 Services. Subject to the terms and conditions of this Agreement, Agora will perform certain services for Customer (the “Services”). Agora will perform the services in accordance with the Subscription Agreement.
3.3 Subcontractors. Agora may utilize independent third-party contractors to perform all or part of the Services. Agora will remain solely responsible for the performance of all the Services that are subcontracted.
3.4 Place of Performance. Work throughout will be split between Agora’s offices at 1132 Howard St., San Francisco CA and onsite at Customer’s offices (“Customer Premises”). An appropriate work environment must be provided to Agora personnel if working onsite with the Customer. Agora agrees to follow Customer’s “acceptable use” policies and/or guidelines for appropriate use of customer infrastructure (e.g., internet, network). Customer agrees to Provide Agora with the “acceptable use” policies or guidelines prior to the commencement of work at Customer’s Premises.
4. INTELLECTUAL PROPERTY AND DATA
4.1 Intellectual Property. All right, title, and interest in and to the Agora Technology, including all copyrights, patents, trademarks, trade secrets, or other intellectual property rights, are and will remain the sole and exclusive property of Agora. Except for the limited licenses and rights granted in Section 2, nothing herein grants to Customer, or should be construed to grant to Customer, any right title or interest in or to Agora Technology.
4.2 Customer Materials. Any materials provided by Customer to Agora (the “Customer Materials”) will be owned by Customer. Agora will take reasonable steps to maintain the confidentiality of any non-public Customer Materials that are marked “Confidential.”
4.3 Inventions. All works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques and information (a) conceived, discovered, developed or otherwise made (as necessary to establish authorship, inventorship or ownership) by Agora, solely or in collaboration with others, in the course of performing the services set forth in the Subscription Agreement; or (b) that form all or part of any Documentation provided in connection with the services provided by Agora to Customer, whether developed as part of those services or separately, but excluding any Customer Materials (collectively, “Inventions”) will be the sole property of Agora.
5. TERM AND TERMINATION
5.1 Term. The term of this Agreement will commence on the Effective Date and continue for the term specified in the Subscription Agreement (the “Term”) unless earlier terminated in accordance with this Section 5.
5.2 Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 5.2 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, Agora may, without limitation to any of its other rights or remedies, suspend Customer’s access to the Platform until it receives all amounts due. Agora may terminate this Agreement immediately upon notice to Customer if Customer breaches its obligations provided in Section 2 of this Agreement.
5.3 Termination for Insolvency or Bankruptcy. Customer may terminate this Agreement if Agora is or becomes insolvent or is a party to any bankruptcy or receivership proceeding.
5.4 Post-Termination Obligations. If this Agreement is terminated for any reason: Customer will pay to Agora any fees or other amounts that have accrued prior to the effective date of the termination; any and all liabilities accrued prior to the effective date of the termination will survive; Customer will immediately cease all use of the Platform, Documentation any other Agora Technology; and Agora will return all of the Customer’s data and materials accrued over the period of Agora’s use.
5.5 Survival. Upon termination, Customer’s licenses under this Agreement will end and Customer will cease all use of the Agora Technology. Sections 2.2, 2.3, 2.4, 4, 5.3, 5.4, 5.5, 6, 7.3, 8, 9, 10, 11, and 12 will survive any termination of this Agreement.
6.1 Fees. Customer’s use of the Platform and Services is subject to the fees set forth in Subscription Agreement, as well as any additional services fees agreed to by the Parties (collectively, the “Fees”) . Unless otherwise specified in the Subscription Agreement, Customer will pay all amounts due within 30 days of the date of the applicable invoice. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Agora to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. All amounts payable under this Agreement are denominated in United States dollars, will be paid in United States dollars, and are non-refundable.
6.2 Taxes. Other than net income taxes imposed on Agora, Customer will bear all taxes, duties, and other governmental charges resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Agora after all such taxes are paid are equal to the amounts that Agora would have been entitled to in accordance with this Agreement as if the taxes did not exist.
7. REPRESENTATIONS AND DISCLAIMERS OF WARRANTY
7.1 Mutual Warranties. Each Party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7.2 Additional Customer Warranties. Customer represents and warrants to Agora that Customer’s use of the Agora Technology, including its collection and use of any data obtained through the Agora Technology, will be in compliance with all applicable laws, regulations, and statutes.
7.3 DISCLAIMERS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 7.3, AGORA MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. AGORA EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. AGORA DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PLATFORM. AGORA DOES NOT WARRANT THAT THE PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE PLATFORM WILL BE SECURE OR UNINTERRUPTED. AGORA DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE PLATFORM IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE PLATFORM WILL ALWAYS BE AVAILABLE. AGORA EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OF THE PLATFORM OR ANY AGORA TECHNOLOGY.
8. LIMITATION OF LIABILITY.
8.1 Disclaimer of Indirect Damages. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S GROSS, NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT, BREACH OF ITS WARRANTIES IN SECTION 7, OR OBLIGATION TO INDEMNIFY THE OTHER PARTY, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCE, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THAT PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
8.2 Cap on Liability. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S GROSS, NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT, BREACH OF ITS WARRANTIES IN SECTION 7, OR OBLIGATION TO INDEMNIFY THE OTHER PARTY, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO AGORA DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY AGORA TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. AGORA INDEMNIFICATION
9.1 Defense. Agora will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that Customer’s use of Agora Technology infringes or misappropriates any third party patent, copyright, trade secret, trademark, or other intellectual property right during the Term if: (i) Customer gives Agora prompt written notice of the Claim; (ii) Customer grants Agora full and complete control over the defense and settlement of the Claim; (iii) Customer provides assistance in connection with the defense and settlement of the Claim as Agora may reasonably request; and (iv) Customer complies with any settlement or court order made in connection with the Claim. Customer will not defend or settle any Claim without Agora’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Agora will have sole control over the defense and settlement of the Claim.
9.2 Indemnification. Agora will indemnify Customer from and pay: all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under Section 9.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim under Section 9.1 (other than attorneys’ fees and costs incurred without Agora’s consent after Agora has accepted defense of the Claim); and all amounts that Agora agrees to pay to any third party to settle any Claim under Section 9.1.
9.3 Exclusions from Obligations. Agora will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon: use of the Platform or any other Agora Technology in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; any Third Party Technology; use of any Agora Technology by Customer for purposes not intended or outside the scope of the license granted to Customer; Customer’s failure to use the Agora Technology in accordance with instructions provided by Agora, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Agora Technology not made or authorized in writing by Agora where such infringement or misappropriation would not have occurred absent such modification ((a) – (e) collectively, the “Non-Qualifying Claims”).
10. CUSTOMER INDEMNIFICATION
10.1 Defense. Customer will defend Agora from any actual or threatened third party Claim arising out of or based upon: (a) Customer’s failure to abide by applicable laws, regulations or statutes, or (b) any Non-Qualifying Claims. Agora will (i) give Customer prompt written notice of the Claim; (ii) grant Customer full and complete control over the defense and settlement of the Claim; (iii) provide assistance in connection with the defense and settlement of the Claim as Customer may reasonably request; and (iv) comply with any settlement or court order made in connection with the Claim. Agora will not defend or settle any Claim without Customer’s prior written consent. Agora will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
10.2 Indemnification. Customer will indemnify Agora from and pay all damages, costs, and attorneys’ fees finally awarded against Agora in any Claim under Section 10.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Agora in connection with the defense of a Claim under Section 10.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim under Section 10.1.
11.1 Definition. “Confidential Information” means any information disclosed by either Party to the other Party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, and equipment), that is designated by the disclosing Party as confidential or proprietary, that reasonably appears to be confidential due to the nature of the information or circumstances of disclosure, or that is customarily considered confidential between business parties, including the terms of this Agreement and any customer, product, financial, and strategic information. For the avoidance of doubt, all supplier and cost data provided by Customer to Agora, and all of Customer’s internal processes learned by Agora in connection with this Agreement shall be considered the Confidential Information of Customer. “Confidential Information” may also include information disclosed to the disclosing Party by third parties. Confidential Information will not, however, include any information that: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party, as shown by the receiving Party’s files and records; (iv) is obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the receiving Party’s possession.
11.2 Non-Use and Non-Disclosure. Neither Party will use any Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party will disclose any Confidential Information of the other Party to third parties or to that Party’s employees, except to those employees of the receiving Party with a need to know. Neither Party will reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects which embody the other Party’s Confidential Information and which are provided to the Party hereunder. A Party may disclose the other Party’s Confidential Information if required by law so long as the receiving Party gives the disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.
11.3 Maintenance of Confidentiality. Each Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to those employees. Neither Party will make any copies of the Confidential Information of the other Party unless the same are authorized under this Agreement or previously approved in writing by the other Party. Each Party will reproduce the other Party’s proprietary rights notices on any approved copies, in the same manner in which those notices were set forth in or on the original.
11.4 Return of Materials. Upon the termination of this Agreement, each Party will deliver to the other Party all of the other Party’s Confidential Information that it may have in its possession or control.
11.5 Remedies. Each Party acknowledges that any violation or threatened violation of this Agreement may cause irreparable injury to the other Party, entitling the other Party to seek injunctive relief in addition to all legal remedies.
12.1 Publicity. Agora may disclose the fact that Customer is a customer of Agora to its existing or potential customers in written, oral and electronic materials, which include the names of Agora’s customers, including on Agora’s website. In addition, Agora may use Customer’s name and logo in pitch materials provided to potential investors and partners and in marketing materials provided to potential customers. Upon Agora’s reasonable request, Customer agrees in good faith to serve as a reference for potential customers of Agora and to make its personnel available to respond to reference requests, and to provide quotes from its personnel for Agora to use in press releases and other marketing materials. Customer agrees to cooperate with Agora in good faith to participate in a case study of Agora’s product(s), which case study will not be released without the prior approval of Customer, not to be unreasonably withheld or delayed. Customer hereby grants Agora a non-exclusive, royalty-free license to use Customer’s trademarks and logos for the purposes set forth in this Section 12.1; provided, however, that such usage will be in compliance with any trademark usage guidelines provided by Customer to Agora.
12.2 No Partnership, Joint Venture or Franchise. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.
12.3 Notices. All notices in connection with this Agreement will be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mail, postage prepaid, certified or registered, return receipt requested, and addressed either to Customer or to Agora at the addresses specified in the Subscription Agreement, or to such other address as a Party may designate pursuant to this notice provision.
12.4 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California without reference to its choice of law rules that would result in the application of the laws of another jurisdiction. The Parties agree that any dispute arising from this Agreement will be heard exclusively in the state or Federal courts located in the County of San Francisco, California and irrevocable submit to that jurisdiction and venue.
12.5 Assignability. This Agreement may not be assigned or otherwise transferred by either Party, in whole or in part, without the prior written consent of the other Party, except that either Party may assign this Agreement in connection with a merger, acquisition, change of control, or sale of all or substantially all of that Party’s assets or stock. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of this Section 12.5 is null and void.
12.6 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of that Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
12.7 Force Majeure. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement 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, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
12.8 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the Parties have not signed the same counterpart, with the same effect as if the Parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
12.9 Construction. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any limitation or restriction on the grant of any license to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate. Failure by a Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
12.10 Entire Agreement. This Agreement is the final and complete expression of the agreement between these Parties regarding the subject matter of this Agreement. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed. It will not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of Customer and Agora by their respective duly authorized representatives.