Last Updated: April 30, 2023
BY CLICKING THE "CONTINUE" BUTTON OR USING SUPERGRAIN, INC.'S ("SUPERGRAIN ") SOFTWARE AS A SERVICE OFFERING, THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT(S) ("SUBSCRIBER") (1) REPRESENTS THAT SUBSCRIBER HAS READ, UNDERSTOOD AND AGREED TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (2) IS OF LEGAL AGE TO FORM A BINDING AGREEMENT WITH SUPERGRAIN, AND (3) HAS THE AUTHORITY TO ENTER INTO THESE TERMS AND CONDITIONS (THE "AGREEMENT") PERSONALLY OR ON BEHALF OF THE ENTITY NAMED AS THE USER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER MAY NOT OR USE THE SERVICE.
PLEASE NOTE THAT The Agreement IS subject to change by SUPERGRAIN in its sole discretion at any time. When changes are made, Supergrain will make a new copy of the Agreement available through the affected Supergrain Service. Supergrain will also update the "Last Updated" date at the top of the Agreement. Supergrain may also require Subscriber to provide consent to the updated Agreement in a specified manner before further use of the Supergrain Service is permitted.
As used in this Agreement:
1.1. "Confidential Information" means all information regarding a party's business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Connected Third Party Service Data is the Confidential Information of Subscriber. Confidential Information of Supergrain includes information derived from or concerning the Supergrain Service, the Supergrain Platform, the Documentation and the terms of this Agreement.
1.2. "Connected Third Party Service" means any third-party database, database-as-a-service, data warehouse or other third-party platform connected to, or integrated with, the Supergrain Service by or on behalf of Subscriber.
1.3. "Connected Third Party Service Data" means any data collected from, or provided by, any Connected Third Party Service.
1.4. "Documentation" means any user manuals, handbooks, and online materials provided by Supergrain to Subscriber that describe the features, functionality, or operation of the Supergrain Platform.
1.5. "Integration Tools" means any coding, programming or design techniques, architecture, methodology, APIs, functions, software code, applications, scripts, templates, knowledge, experience, and know how developed by Supergrain related to the integration, implementation, connection and/or onboarding of any Connected Third Party Service. For clarity, Integration Tools do not include Connected Third Party Services or any confidential information of Subscriber.
1.6. "Order Form" means any order form, whether written or electronic, including any ordering page on the Supergrain Service, for Supergrain Service executed by both parties that references this Agreement,.
1.7. "Supergrain Platform" means the technology, including hardware and software, used by Supergrain to deliver the Supergrain Service to Subscriber.
1.8. "Supergrain Service" means Supergrain's software-as-a-service platform that enables subscribers to manage and query data housed in Connected Third Party Services based on business metrics defined by the subscriber.
1.9. "Users" means Subscriber's employees, representatives, consultants, contractors, or agents authorized by Subscriber to access the Supergrain Service for which applicable fees have been paid.
2. Supergrain Service.
2.1. Subscription to the Supergrain Service. Subject to the terms and conditions of this Agreement, Supergrain hereby grants to Subscriber a non-sublicensable, non-transferable (except as provided in Section 12), non-exclusive subscription to access and use the Supergrain Service by solely for Subscriber's internal business purposes.
2.2 Support. Subject to the terms of this Agreement, Supergrain shall use commercially reasonable efforts to (a) maintain the security of the Supergrain Service; and (b) provide the support in accordance with Supergrain's then-current support policies.
3. Onboarding and Connected Third Party Services
Subscriber acknowledges and agrees that in order to properly onboard to the Supergrain Service in order to make full use of features and functions of the Supergrain Service, Subscriber will need to integrate or connect to Connected Third Party Services with the Supergrain Service. The Supergrain Platform has certain prebuilt integrations readily available. In the event any integrations are required to be developed, Supergrain may create such integrations in accordance with any mutually agreed upon statement of work.
4. Subscriber's Use of the Supergrain Service.
4.1. Access and Security Guidelines. Each User will be provided access to and use of the Supergrain Service through confidential account credentials. Subscriber will be responsible for all uses of its account, except to the extent caused by Supergrain's negligence. Subscriber will promptly notify Supergrain of any unauthorized use or access to its account. User seats may not be shared amongst other Users.
4.2. Restrictions. Subscriber will not, and will not permit any User or other party to: (a) reverse engineer, disassemble or decompile any component of the Supergrain Platform; (b) interfere in any manner with the operation of the Supergrain Service, or the Supergrain Platform or the hardware and network used to operate the Supergrain Service; (c) sublicense any of Subscriber's rights under this Agreement, or otherwise use the Supergrain Service for the benefit of a third party or to operate a service bureau; (d) modify, copy or make derivative works based on any part of the Supergrain Platform; or (e) otherwise use the Supergrain Service in any manner that exceeds the scope of use permitted under Section 2.1.
5. Fees, Payment and Suspension of Services.
Subscriber will pay Supergrain the fees for the Supergrain Service set forth in the applicable Order Form ("Fees"). All Fees owed by Subscriber in connection with this Agreement are exclusive of, and Subscriber shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Subscriber in connection with this Agreement, except for employment taxes and taxes based on Supergrain's income. Supergrain reserves the right (in addition to any other rights or remedies Supergrain may have) to discontinue the Supergrain Service and suspend Subscriber's access to the Supergrain Service if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Subscriber shall maintain complete, accurate and up-to-date Subscriber billing and contact information.
6. Confidential Information.
The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the Supergrain Service. The receiving party will protect the disclosing party's Confidential Information from unauthorized use, access, or disclosure in a reasonable manner. Upon termination of this Agreement, the receiving party will return to the disclosing party or destroy all copies of the Confidential Information. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party's lawful possession prior to the disclosure, as shown by the receiving party's competent written records, or (c) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body.
7. Ownership and Data.
7.1. Supergrain Platform and Technology. Subscriber acknowledges that Supergrain retains all right, title and interest in and to the Supergrain Platform, Integration Tools and all software and all Supergrain proprietary information and technology used by Supergrain or provided to Subscriber in connection with the Supergrain Service (the " Supergrain Technology"), and that the Supergrain Technology is protected by intellectual property rights owned by or licensed to Supergrain. Other than as expressly set forth in this Agreement, no license or other rights in the Supergrain Technology are granted to the Subscriber. Subscriber hereby grants Supergrain a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Supergrain Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating to the Supergrain Service. Supergrain shall not identify Subscriber as the source of any such feedback.
7.2. Connected Third Party Service Data. Subscriber retains all right, title and interest in and to the Connected Third Party Service Data. Subscriber hereby grants to Supergrain a non-exclusive, worldwide, royalty-free and fully paid-up license to: (a) access and use Connected Third Party Service Data to provide the Supergrain Services to Subscriber; and (b) use Connected Third Party Service Data on an aggregated and anonymized basis to improve the Supergrain Services; provided, that, the license grant in subpart (b) shall be perpetual and irrevocable. Subscriber represents and warrants that it has all necessary rights to grant Supergrain the foregoing licenses.
7.3. Data Security. Supergrain will maintain throughout the Term (as defined below), industry standard administrative, physical and technical measures designed to protect Connected Third Party Service Data against loss and unauthorized access, disclosure and use. In the event Supergrain becomes aware of any loss or unauthorized access, disclosure or use of any Connected Third Party Service Data ("Security Breach"), Supergrain will (i) promptly notify Subscriber in writing of such Security Breach, and (ii) take reasonable steps to identify the cause of such Security Breach, minimize the harm associated therewith and prevent reoccurrence thereof. Any notification of any Security Breach will describe, to the extent known, details of the Security Breach, including steps taken to mitigate the potential risks.
8. Term and Termination.
8.1. Term. The term of this Agreement will commence on the date Subscriber accepts them in accordance with the preamble and continue until all Order Forms have expired, unless terminated earlier in accordance with the terms of this Agreement (the "Term"). Unless otherwise set forth in an Order Form, each Order Form will have an initial term of one (1) month, and will automatically renew for successive one (1) month terms, unless either party provides no less than thirty (30) days written notice of its intent to terminate this Agreement prior to the end of the then-current term. Supergrain reserves the right to increase the Fees upon written notice to Subscriber; provided, that, any such increase shall not take effect until the next subscription term. 8.2. Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Upon the expiration or termination of this Agreement for any reason, (a) any amounts owed to Supergrain under this Agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party. Supergrain agrees that upon expiration or termination of this Agreement, Supergrain will remove all Connected Third Party Service Data from the Supergrain Platform and all Subscriber access to the Supergrain Service will cease. Sections 1, 5, 6, 7, 8.2, 9.2, 9.3, 9.4, 10-12 will survive the termination of this Agreement.
9. Warranty; Disclaimer.
9.1. Limited Warranty. During the Term, Supergrain warrants that the Supergrain Service, when used as permitted by Supergrain and in accordance with the Documentation, will operate as described in the Documentation in all material respects. If Subscriber notifies Supergrain of any breach of the foregoing warranty, Supergrain shall, as Subscriber's sole and exclusive remedy, provide the support services in accordance with Section 2.2.
9.2. Disclaimer. Except as expressly provided in Section 9.1, and to the maximum extent permitted by applicable law: (a) the Supergrain Service, Supergrain Platform and documentation are provided "as is" and "as available" and (b) Supergrain and its suppliers make no other warranties, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose.
9.3. Connected Third Party Services. Subscriber acknowledges that Supergrain has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Third Party Services or other component thereof, including the accuracy, timeliness, reliability, or completeness of any Connected Third Party Service Data. Subscriber further acknowledges that, as a result, Supergrain will not be for any liabilities arising from or related to any notifications, results, records or other outputs created or provided by the Supergrain Service (collectively, "Outputs") that are based on the Connected Third Party Service Data and any business metrics, rules and other inputs provided by Subscriber. Accordingly, Supergrain makes no representations or warranties with respect to the accuracy, timeliness, reliability or completeness of any Outputs. Supergrain will have no liability with respect to any Outputs, any acts, omissions, reliance, delays, errors or other liabilities arising from or related to any Outputs, or any downtime, unavailability, inaccuracies or failures of any Connected Third Party Services. Subscriber represents and warrants that it has all necessary rights and authority to disclose any account credentials and passwords provided by Subscriber to Supergrain related to any Connected Third Party Services, and that Supergrain's access to and use of any Connected Third Party Services will not require Supergrain to pay any amounts to any third party.
10.1. By Supergrain. If any action is instituted by a third party against Subscriber based upon a claim that the Supergrain Service or Supergrain Platform, as delivered, infringes any third party's intellectual property rights, Supergrain shall defend such action at its own expense on behalf of Subscriber and shall pay all damages attributable to such claim which are finally awarded against Subscriber or paid in settlement. If the Supergrain Service or Supergrain Platform is enjoined or, in Supergrain's determination is likely to be enjoined, Supergrain shall, at its option and expense (a) procure for Subscriber the right to continue using the Supergrain Service, (b) replace or modify the Supergrain Platform or Supergrain Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Subscriber's access to the Supergrain Service and refund any amounts previously paid for the Supergrain Service attributable to the remainder of the then-current term. This Section sets forth the entire obligation of Supergrain and the exclusive remedy of Subscriber against Supergrain for any claim that the Supergrain Service infringes a third party's intellectual property rights.
10.2. By Subscriber. If any action is instituted by a third party against Supergrain relating to (a) any claims or disputes between Subscriber and any provider of any Connected Third Party Service (b) Subscriber's breach or alleged breach of Section 2.1 or 9.4, or (c) Subscriber's use of the Supergrain Services in violation of any applicable laws, rules or regulations, Subscriber will defend such action at its own expense on behalf of Supergrain and shall pay all damages attributable to such claim which are finally awarded against Supergrain or paid in settlement of such claim. This subsection states the sole and exclusive remedy of Supergrain and the entire liability of Subscriber for the claims and actions described herein.
10.3. Procedure. Any party that is seeking to be indemnified under the provision of this Section 10 must (a) promptly notify the other party (the "Indemnifying Party") of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a "Claim"), and (b) give the Indemnifying Party the sole control over the defense of such Claim.
11. Limitation of Liability.
To the extent permitted by law, in no event shall Supergrain or Subscriber be liable for special, incidental, consequential or punitive damages or lost profits in any way relating to this Agreement. In no event shall Supergrain' or Subscriber's aggregate, cumulative liability in any way relating to this Agreement exceed the amount of fees actually received by Supergrain from Subscriber pursuant to the applicable Order Form or Statement of Work during the twelve (12) months preceding the claim. The foregoing limitations shall not apply to payment and indemnity obligations. the parties would not have entered into this agreement but for such limitations.
12. General Provisions.
Supergrain may use Subscriber's name and logo on Supergrain' website and identify Subscriber as a Subscriber of Supergrain. Subscriber may not assign any rights or obligations arising under this Agreement, without the prior written consent of Supergrain. Supergrain may assign this Agreement without consent of Subscriber in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. Subscriber agrees that Supergrain may subcontract certain aspects of the Supergrain Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Supergrain of any of its obligations hereunder. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Any notice under this Agreement must be given in writing to the other party at the address set forth above. Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service. This Agreement (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.