Distilled Data Terms of Service

This Distilled Data Agreement (the "Agreement") is made and entered into between Distilled Data Inc and the entity agreeing to these terms ("Customer"). The Agreement consists of Part A (General Terms), Part B (Specific Terms), Part C (Definitions) any addenda (if applicable), and each Order Form, including any statements of work, and each amendment to any of the foregoing. This Agreement is effective as of the date of the last signature appearing on Customer's initial Order Form (the "Effective Date").

GENERAL TERMS

Services. Distilled Data will provide the Software and Services specified in an Order Form in accordance with this Agreement, including the SLAs, and Customer and its End Users may use the Services in accordance with Part B (Specific Terms).

Customer Obligations

Consents. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services and (b) Distilled Data accessing, storing, and processing of data provided by Customer (including Customer Data, if applicable) under this Agreement and the Order Form.
Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services complies with this Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Services, and (c) promptly notify Distilled Data of any unauthorized use of, or access to, the Services of which Customer becomes aware.
Use Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, create a derivative work of, reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law); (b) sell, resell, sublicense, transfer, or distribute the Services; (c) access or use the Services (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees; (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) in a manner that breaches, or causes the breach of, Export Control Laws; or (v) to transmit, store, or process health information subject to United States HIPAA regulations except as permitted by an executed HIPAA BAA; (d) remove any copyright notices, trademarks or other proprietary notices or restrictions from the Services; (e) provide the Services on a time sharing, hosting, service provider or other similar basis, except as part of a Customer Application for External Business Purposes; (f) provide or obtain unauthorized access to the Services, including by sharing the log-on credentials for any End User with others; (g) circumvent any technical measures in the Software or Services; (h) conduct benchmarking tests or other comparative analysis of the Services for publication or disclosure to third parties or (i) disrupt the security, integrity or performance of the Services in any way.

Payment Terms

Payment. Distilled Data will invoice Customer for the Fees for the Services and TSS. Customer will pay all invoiced amounts by the Payment Due Date. Unless otherwise provided in this Agreement or required by law, Fees for Services are non-refundable. All payments are due in the currency described in the invoice. Wire transfer payments must include the bank information described in the invoice.
Usage and Invoicing. Distilled Data’s measurement tools will be used to determine Customer's usage of the Services. Each invoice will include data in sufficient detail to allow Customer to validate the Services purchased and associated Fees. If Customer exceeds the number of End Users, Scope of Use, or Deployment Attributes, Customer or Distilled Data will, upon becoming aware, promptly notify the other party and the parties agree to discuss in good faith the additional fees due by Customer to Distilled Data for such over-deployment. The agreed upon additional fees associated with the over-deployment will be memorialized in a new Order Form.
Additional Usage. Customer may purchase additional Deployment Attributes (including adding End Users) during an Order Term by executing an additional Order Form. Such purchase will have a pro-rated term ending on the last day of the applicable Order Term. Deployment Attributes cannot be decreased during the Order Term.
Taxes. Distilled Data will itemize any invoiced Taxes. Customer will pay invoiced Taxes unless Customer provides a valid tax exemption certificate. Customer may withhold Taxes if Customer provides a valid receipt evidencing the taxes withheld.
Invoice Disputes. Customer must submit any invoice disputes to accoutning@distilleddata.io before the Payment Due Date. If the parties determine that Fees were incorrectly invoiced, then Distilled Data will issue a credit equal to the agreed amount.
Overdue Payments.
1. If Customer's payment is overdue, then Distilled Data may (i) charge interest on overdue amounts at 1.5% per month (or the highest rate permitted by law, if less) from the Payment Due Date until paid in full, and (ii) Suspend the Services.
2. Customer will reimburse Distilled Data for all reasonable expenses (including attorneys' fees) incurred by Distilled Data in collecting overdue payments except where such payments are due to Distilled Data’s billing inaccuracies.
3. Suspension for Overdue Payment. Distilled Data may Suspend the Services under Section 3(f) (Overdue Payments) only if Customer's payment is overdue for more than 14 days after the Payment Due Date. Distilled Data will notify Customer at least 7 days before suspension.
Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Order Form. If Customer does not provide a purchase order number, then (i) Distilled Data will invoice Customer without a purchase order number, and (ii) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order are void.

Intellectual Property

Intellectual Property Rights. Except as expressly described in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or Intellectual Property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data and Customer Applications, and Distilled Data retains all Intellectual Property Rights in the Services and Software.
Feedback. At its option, Customer may provide feedback and suggestions about the Services to Distilled Data ("Feedback"). If Customer provides Feedback, then Distilled Data and its Affiliates may use that Feedback without restriction and without obligation to Customer.

Confidentiality

Use and Disclosure of Confidential Information. The Recipient will only use the Disclosing Party's Confidential Information to exercise its rights and fulfill its obligations under this Agreement and Order Form, and will use reasonable care to protect against the disclosure of the Disclosing Party's Confidential Information. Notwithstanding any other provision in this Agreement, the Recipient may disclose the Disclosing Party's Confidential Information (i) to its Delegates who have a need to know and who are bound by confidentiality obligations at least as protective as those in this Section 5 (Confidentiality); (ii) with the Disclosing Party's written consent; or (iii) subject to Section 5(b) (Legal Process), as strictly necessary to comply with Legal Process.
Legal Process. If the Recipient receives Legal Process for the Disclosing Party's Confidential Information, the Recipient will: (i) promptly notify the Disclosing Party prior to such disclosure unless the Recipient is legally prohibited from doing so; (ii) attempt to redirect the third party to request it from the Disclosing Party directly; (iii) comply with the Disclosing Party's reasonable requests to oppose disclosure of its Confidential Information; and (iv) use commercially reasonable efforts to object to, or limit or modify, any Legal Process that the Recipient reasonably determines is overbroad, disproportionate, incompatible with applicable law, or otherwise unlawful. To facilitate the request in (ii), the Recipient may provide the Disclosing Party's basic contact information to the third party.

Marketing and Publicity. Customer may state publicly that it is a Distilled Data customer and display Distilled Data Brand Features in accordance with the Trademark Guidelines. Distilled Data may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party's Brand Features only as permitted in this Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.
Representations and Warranties. Each party represents and warrants that it (i) has full power and authority to enter into this Agreement and (ii) will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.
Disclaimer. Except as expressly provided for in this Agreement, to the fullest extent permitted by applicable law, Distilled Data (i) does not make any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the Services or Software and (ii) makes no representation about content or information accessible through the Services.

Indemnification

Distilled Data Indemnification Obligations. Distilled Data will defend Customer and its Covered Affiliates, and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that the Distilled Data Indemnified Materials used in accordance with the Agreement infringe the third party's Intellectual Property Rights.
Customer Indemnification Obligations. Customer will defend Distilled Data and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (i) any Customer Indemnified Materials or (ii) Customer's or an End User's use of the Services in breach of the AUP or the Use Restrictions.
Indemnification Exclusions. Sections 9(a) (Distilled Data Indemnification Obligations) and 9(b) (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (i) the indemnified party's breach of this Agreement or (ii) a combination of the Distilled Data Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under this Agreement, unless the combination is required by this Agreement.
Indemnification Conditions. Sections 9(a) (Distilled Data Indemnification Obligations) and 9(b) (Customer Indemnification Obligations) are conditioned on the following:
1. Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 9(d)(1) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 9(a) (Distilled Data Indemnification Obligations) or 9(b) (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
2. ii. Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (A) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (B) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
Remedies.
1. If Distilled Data reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Distilled Data may, at its sole option and expense, (A) procure the right for Customer to continue using the Services, (B) modify the Services to make them non-infringing without materially reducing their functionality, or (C) replace the Services with a non-infringing, functionally equivalent alternative.
2. If Distilled Data does not believe the remedies in Section 9(e)(1) are commercially reasonable, then Distilled Data may Suspend or terminate the impacted Services.
Sole Rights and Obligations. Without affecting either party's termination or Suspension rights, this Section 9 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 9 (Indemnification).

Liability

Limited Liabilities.
1. i. To the extent permitted by applicable law and subject to Section 10(b) (Unlimited Liabilities), neither party will have any Liability arising out of or relating to this Agreement for any
  1. indirect, consequential, special, incidental, or punitive damages or
  2. lost revenues, profits, savings, or goodwill.
2. Each party's total aggregate Liability for damages arising out of or relating to this Agreement is limited to the Fees Customer paid under this Agreement during the 12 month period before the event giving rise to Liability.
Unlimited Liabilities. Nothing in this Agreement excludes or limits either party's Liability for:
1. death, personal injury, or tangible personal property damage resulting from its negligence or the negligence of its employees or agents;
2. its fraud or fraudulent misrepresentation;
3. its obligations under Section 9 (Indemnification) of Part A (General Terms);
4. its infringement of the other party's Intellectual Property Rights;
5. its payment obligations under this Agreement; or
6. matters for which liability cannot be excluded or limited under applicable law.

Terms and Termination

Agreement Term. This Agreement is effective from the Effective Date until it is terminated in accordance with its terms (the "Term").
Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to this Agreement, Customer may terminate this Agreement or an Order Form for convenience with 30 days' prior written notice to Distilled Data.
Termination for Breach.
1. Termination of an Order Form. Either party may terminate an Order Form if the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice.
2. Termination of this Agreement. Either party may terminate this Agreement if the other party (i) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice, (ii) ceases its business operations, or (iii) becomes subject to insolvency proceedings and such proceedings are not dismissed within 90 days.
Effects of Termination. If this Agreement terminates, then all Order Forms also terminate. If an Order Form terminates or expires, then after that Order Form's termination or expiration effective date, (a) all rights and access to the Services under that Order Form will terminate (including access to Customer Data, if applicable), and (b) Distilled Data will send Customer a final invoice (if applicable) for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms.
Survival. The following Sections will survive expiration or termination of this Agreement: Section 3 (Payment Terms), Section 4 (Intellectual Property), Section 5 (Confidentiality), Section 8 (Disclaimer), Section 9 (Indemnification), Section 10 (Liability), Section 11(d) (Effects of Termination), Section 12 (Miscellaneous) and Part C (Definitions).

Miscellaneous

Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Distilled Data must be sent to legal@distilleddata.io. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.
Emails. The parties may use emails to satisfy written approval and consent requirements under this Agreement.
Assignment. Neither party may assign this Agreement without the written consent of the other, except to an Affiliate where (i) the assignee has agreed in writing to be bound by the terms of this Agreement, (ii) the assigning party has notified the other party of the assignment, and (iv) if the Customer is the assigning party, the assignee is established in the same country as Customer. Any other attempt to assign is void.
Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization, then (i) that party will give written notice to the other party within 30 days after the change of Control and (ii) the other party may immediately terminate this Agreement any time within 30 days after it receives that written notice.
Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
Subcontracting. Distilled Data may subcontract obligations under this Agreement but will remain liable to Customer for any subcontracted obligations.
No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
No Third-Party Beneficiaries. This Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.
Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.
Governing Law. All claims arising out of or relating to this Agreement or the Services will be governed by California law, excluding that state's conflict of laws rules, and will be litigated exclusively in the federal or state courts of Placer County, California; the parties consent to personal jurisdiction in those courts.
Amendments. Except as specifically described otherwise in this Agreement, any amendment to this Agreement must be in writing, expressly state that it is amending this Agreement, and be signed by both parties.
Entire Agreement. This Agreement states all terms agreed between the parties, and supersedes any prior or contemporaneous agreements between the parties relating to the subject matter of this Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in this Agreement. This URL Terms are incorporated by reference into this Agreement.
Conflicting Terms. If there is a conflict among the documents that make up this Agreement, then the documents will control in the following order (of decreasing precedence): the applicable Order Form, the Data Processing and Security Terms or Data Processing Amendment (as applicable), this Agreement, and the other URL Terms.
Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will control.
Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
Electronic Signatures. The parties consent to electronic signatures.
Headers. Headings and captions used in this Agreement are for reference purposes only and will not have any effect on the interpretation of this Agreement.

Specific Terms for Using Nirvana Product

Using the Service

Use by Customer. Distilled Data will provide the Services to Customer by (a) providing access to an Instance for the Nirvana Hosted Deployment. Customer may only use the Services with applications, databases and servers licensed and/or owned by Customer. Customer may configure the Services for Internal Business Purposes and External Business Purposes only to the extent authorized in the Order Form.
Use by Affiliates. Customer Affiliates may (i) access and use the Services as End Users, subject to the terms of Customer's Order Form so long as Customer remains responsible for the Affiliates' compliance with the Agreement and the applicable Order Form, or (ii) execute a separate Order Form that incorporates this Agreement by reference.
Customer Responsibilities. Customer will be solely responsible, and Distilled Data disclaims responsibility for any acquisition, implementation, support or maintenance of third-party products or services purchased by Customer that may interoperate with the Services.
Beta Features. Distilled Data may make Beta Features available to End Users subject to the provisions in the Nirvana Service Specific Terms.

Data Processing and Security. To the extent Customer provides Distilled Data with access to Customer Data under this Agreement, the following will apply:
1. Protection of Customer Data. Distilled Data will only access or use Customer Data to provide the Services and TSS ordered by Customer to Customer and will not use it for any other Distilled Data products, services, or advertising. Distilled Data has implemented and will maintain administrative, physical, and technical safeguards designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Data stored in the Instance, as further described in the Data Processing and Security Terms. Notwithstanding any other provision of this Agreement or any other agreement related to the Services, Distilled Data will not be responsible for any breach or loss to the extent resulting from Customer's security configuration or Customer's administration of the Services.
2. Data Processing and Security Terms. The Data Processing and Security Terms are incorporated by reference into this Agreement.

Updates to Services and Terms

Changes to Services
1. Limitations on Changes. Distilled Data may update the Services, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Services.
Changes to Terms. Distilled Data may update the URL Terms, provided the updates do not (a) result in a material reduction of the security of the Services, (b) expand the scope of or remove any restrictions on Distilled Data’s processing of Customer Data as described in the Data Processing and Security Terms (if applicable), or (c) have a material adverse impact on Customer's rights under the URL Terms. Distilled Data will notify Customer of any material updates to URL Terms.
Permitted Changes. Sections 4(a) (Changes to Services) and 4(b) (Changes to Terms) do not limit Distilled Data's ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to Beta Features or new or pre-general availability Services, offerings, or functionality.

Temporary Suspension

Services Suspension. Distilled Data may Suspend Services if (a) necessary to comply with law or protect the Services or Distilled Data’s infrastructure supporting the Services or (b) Customer or any End User's use of the Services does not comply with the AUP, and it is not cured following notice from Distilled Data.
Limitations on Services Suspensions. If Distilled Data Suspends Services under Section 5(a) (Services Suspension), then (a) Distilled Data will provide Customer notice of the cause for Suspension without undue delay, to the extent legally permitted, and (b) the Suspension will be to the minimum extent and for the shortest duration required to resolve the cause for Suspension.

Technical Support. Unless otherwise agreed in an Order Form, Distilled Data will provide Nirvana Technical Support Services to Customer during the Order Term in accordance with the Nirvana Technical Support Services Guidelines. Customer is responsible for the technical support of its Customer Applications.
Ceasing Software Use. If this Agreement or the Order Form terminates or expires, then Customer will stop using the Software.
Professional Services. If Customer purchases PSO Services, such PSO Services will be provided in accordance with a separate agreement between Customer and Distilled Data.
Termination of Previous Agreements. If Customer has previously entered into an agreement for Distilled Data to provide the Software or Services, then that agreement will terminate on the Services Start Date, and this Agreement will govern the provision and use of the Services going forward.