CAISSON PUBLIC API - END USER LICENSE AGREEMENT

Please read this Agreement (defined below) carefully as it contains the legal terms that govern your use of the Software (defined below) provided by Caisson, Corp (“Caisson”). You agree to be legally bound to this Agreement between you (“Customer,” “you,” or “your”) and Caisson. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind that entity to this Agreement, in which case the terms “Customer,” “you” and “your” refer to that entity.

  1. Definitions.

    1. Agreement” means this End User License Agreement, including its exhibits and schedules annexed hereto or otherwise incorporated herein, as amended from time to time.
    2. Caisson Materials” means any documents, content, diagrams, software programs, software code, tools, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques, materials, data or other information provided, developed, used or made available by Caisson to Customer in connection with the Agreement, excluding the Results. For greater certainty but without limiting the foregoing, Caisson Materials include all Software and Documentation.
    3. Customer Materials” means all data, information, and any other materials provided or otherwise made available by Customer to Caisson in connection with this Agreement.
    4. Documentation” means the standard user documentation for the Software that Caisson makes available to Customer for the Software.
    5. Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademarks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
    6. Results” means all data, information and materials generated by the Software based on Customer Materials.
    7. Software” means the software products and related Documentation, including any error corrections, modifications and updates thereto, made available by Caisson to Customer under this Agreement.
    8. Usage Limitations” means the numbers, types and/or identifiers of servers, server cores, and/or disks; data volume, capacity, and/or rate; query volume, capacity, and/or rate; users and/or locations, and other usage limitations related to the Software as agreed by the parties in writing.
  2. Software.

    1. Grant of License. Subject to Customer’s compliance with the terms and conditions of this Agreement (including payment of the applicable fees in accordance with Section 3), Caisson grants to Customer a limited, non-exclusive, non-transferrable, non-sublicensable and revocable right, to use the Software in accordance with the Usage Limitations and Documentation, only during the Term and only for permitted use.
    2. Restrictions. Customer will ensure that the Software will only be used by Customer and its authorized personnel. Customer has no right to transfer, sublicense, or otherwise distribute any Caisson Material to any third party except to the extent permitted by this Agreement or expressly agreed by Caisson in writing. Customer will not copy or modify the Software, in whole or in part. Except as expressly authorized in this Agreement or approved by Caisson, Customer will not sell, resell, lease, lend, or rent the Software, use the Software to provide service bureau, time sharing, rental, application services provider, hosting, or other computer services to third parties, or otherwise make the functionality of the Software available to third parties. Customer acknowledges that the Software constitutes and contains trade secrets of Caisson and its licensors. Customer will not disassemble, decompile, or reverse engineer the Software, frame or mirror any content forming part of the Software, access the Software in order to build a competitive product or service or copy any features, functions or graphics of the Software, or use the Software in a way that exceed the Usage Limitations, without the express written consent of Caisson, and will not permit any third party to do any of the foregoing.
    3. Limited Rights. Customer’s rights in the Caisson Materials will be limited to those expressly granted in this Agreement. Caisson reserves all rights and licenses in and to the Caisson Material not expressly granted to Customer under this Agreement.
    4. Ownership of Caisson Materials. Customer expressly acknowledges that, as between Caisson and Customer, subject to the rights granted to Customer hereunder, Caisson owns all worldwide right, title, and interest in and to the Caisson Materials, including all worldwide Intellectual Property Rights therein. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing on or included in the Caisson Materials as delivered to Customer.
    5. Ownership of Customer Materials and Results. Caisson expressly acknowledges that, as between Caisson and Customer, subject to the rights granted to Caisson hereunder, Customer owns all worldwide right, title, and interest in and to the Customer Materials and Results, including all worldwide Intellectual Property Rights therein. Customer grants Caisson a non-exclusive, fully paid, royalty-free, worldwide, sub-licensable right and license: (i) to reproduce, modify, distribute and otherwise use the Customer Materials in any manner necessary for Caisson to provide the Software (including for the creation of the Results) to Customer; and (ii) to use any Customer Materials and the Results for 12 months after Caisson’s receipt of the Customer Materials, for Caisson’s internal purposes, including for the purpose of improving Caisson’s product, services, methods and processes. No rights or licenses are granted to Caisson with respect to the Customer Materials and the Results except as expressly set forth herein.
    6. Responsibilities for Personnel. Customer will ensure that the Software will not be used, directly or indirectly, for any purpose or in any manner inconsistent with the restrictions, limitations and obligations this Agreement. To the extent that any use of the Software by any person (including Customer’s personnel) violates any term in this Agreement, Customer will be fully responsible for such violation.
    7. Service Level Objectives. Caisson will use commercially reasonable efforts to provide the Software meeting the service level objectives described in Schedule A. Customer acknowledges and agrees that the service level objectives set forth in Schedule A are performance targets only and any failure of Caisson to meet any service level objectives will not result in any breach of this Agreement or any payment or liability of Caisson to Customer.
    8. Support. Subject to the terms of this Agreement, Caisson will use commercially reasonable efforts to provide Customer with reasonable support in accordance with Caisson's standard practice. Customer will contact Caisson through the following support email: help@caisson.com. Any additional support services may be provided pursuant to separate written agreements.
  3. Payment.

    1. Fees and Expenses. Customer will pay Caisson for the use of Software in accordance with a separate pricing page.
    2. Interest. All past due amounts will incur interest at a rate of 1.5% per month or the maximum rate permitted by law, whichever is less. Customer will reimburse Caisson for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any overdue amounts.
    3. Payment Terms and Taxes. Customer will pay all amounts due under this Agreement in U.S. currency. All fees payable under this Agreement are net amounts and are payable in full, without deduction for taxes or duties of any kind. Customer will be responsible for, and will promptly pay, all taxes and duties of any kind (including sales, use, and withholding taxes) associated with this Agreement or Customer’s receipt or use of the Software, except for taxes based on Caisson’s net income. In the event that Caisson is required to collect any tax for which Customer is responsible, Customer will pay such tax directly to Caisson. If Customer pays any withholding taxes that are required to be paid under applicable law, Customer will furnish Caisson with written documentation of all such tax payments, including receipts. Customer will promptly reimburse Caisson for any amounts that Caisson pays on Customer’s behalf.
    4. Payment Provider. Customer acknowledges that Caisson may use third party payment processors such as Stripe to process and fulfill payment made by Customer to Caisson for Customer’s use of Software.  Customer acknowledges that Stripe may have access to Customer’s information.  For more information, please read Stripe’s Services Agreement at https://stripe.com/us/ssa and Privacy Policy at https://stripe.com/gb/privacy.

      Questions regarding charges can be directed to help@caisson.com.

  4. Warranty.

    1. Mutual Warranty. Each party hereby represents, warrants and covenants to each other as follows: (i) it is duly organized and is a validly existing entity, and has the authority to enter into this Agreement; (ii) the person who signs this Agreement on its behalf has the right and authority to bind it to this Agreement; (iii) the execution, delivery, and performance of this Agreement do not and will not violate or otherwise conflict with: (a) any agreement by which it may be bound; and (b) its articles of incorporation, bylaws or other governing documents; and (iv) the execution, delivery, and its performance of the Agreement comply and will comply in all material respects with all applicable laws.
    2. Customer Warranty. Customer represents, warrants and covenants that: (i) Customer has sufficient rights to grant the license to Caisson in accordance with Section 2.5 with respect to the Customer Materials; (ii) in the event that the Customer Materials contain private or personal matters concerning any individual person, such disclosure of Customer Materials by Customer to Caisson complies with all applicable privacy legislations; (iii) Customer Materials do not and will not infringe on any third party Intellectual Property Rights or violate any other third party proprietary, personal or publicity right including privacy right; (iv) Customer including its personnel will at all times comply with all applicable laws and Documentations in their use of the Software; (v) only Customer including its authorized personnel, may use the Software; and (vi) the Customer Materials do not and will not contain obscene, libelous or defamatory material, any computer virus, Trojan horse, spyware, or other contaminating, malicious, or destructive feature or content.
    3. Disclaimer.
      1. (a) CUSTOMER ACKNOWLEDGES THAT: (I) THE SOFTWARE IS IN BETA FORM AND MAY NOT OPERATE PROPERLY OR BE FULLY FUNCTIONAL, AND MAY CONTAIN ERRORS, DESIGN FLAWS OR OTHER PROBLEMS; (II) USE OF THE SOFTWARE MAY RESULT IN UNEXPECTED RESULTS, CORRUPTION, OR LOSS OF DATA, INFORMATION, CONTENT OR COMMUNICATIONS, OR OTHER UNPREDICTABLE DAMAGE OR LOSS; AND (III) CAISSON HAS NO OBLIGATION TO RELEASE A FINAL VERSION OF THE SOFTWARE. CUSTOMER ASSUMES ALL RISK ARISING FROM USE OF THE SOFTWARE, INCLUDING THE RISK OF CORRUPTION OR LOSS OF DATA, INFORMATION OR CONTENT.
      2. (b) Caisson does not warrant that the Software will meet Customer’s requirements, that the Software will operate in the combinations that Customer may select for use, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 4, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 4, CAISSON DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM CAISSON OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
  5. Indemnification.

    1. Customer Indemnity. Customer will defend or settle any action brought by any third party against Caisson, its affiliates, and their respective shareholders, directors, officers, agents and employees, to the extent that it is based upon a claim: (i) that Customer Materials infringe any Intellectual Property Rights of any third party, or other third party proprietary, personal or publicity right including privacy right ; and (ii) arising from Customer’s use of Software (such as privacy related claims or claims that the results are not accurate, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Caisson.
    2. Indemnification Procedure. The indemnification obligations in Section 5.1 are subject to the indemnified party: (i)promptly notifies the indemnifying party in writing of the claim; (ii)grants the indemnifying party sole control of the defense and settlement of the claim; and (iii)provides the indemnifying party, at the indemnifying party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. The indemnifying party will have no indemnification obligation to the extent any claim is based on the negligent acts or willful misconduct of the indemnified party or its personnel.
    3. Injunctions. If Customer’s use of any of the Software hereunder is, or in Caisson’s opinion is likely to be, enjoined due to the type of claim specified in Section 5.1 above, Caisson may, at its sole option and expense: (i)procure for Customer the right to continue using such Software under the terms of this Agreement; (ii)replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined Software; or (iii)if options (i) and (ii) above cannot be accomplished despite Caisson’s reasonable efforts, then Caisson may terminate Customer’s rights and Caisson’s obligations hereunder with respect to such Software and refund to Customer any license fees prepaid to Caisson and applicable to the unutilized portion of the Term.
  6. Confidentiality.

    1. Definition.Confidential Information" means: (i)Customer Materials; (ii) Caisson Materials; (iii)any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure; (iv)the specific terms and pricing set forth in this Agreement; and (v) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary. Without limiting the foregoing, Caisson’s Confidential Information includes Caisson Materials and Customer’s Confidential Information includes Customer Materials.
    2. Exclusions. Confidential Information does not include information that: (i)is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii)is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii)is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv)the receiving party rightfully obtains from a third party who has the right to provide such information and who provides it without restrictions on use or disclosure.
    3. Use and Disclosure Restrictions. Each party will not use the other party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but in no event less than the efforts that such party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) on a confidential basis to its legal or financial advisors; and (iii) as required under applicable securities regulations. In addition, Caisson may disclose the terms and conditions of this Agreement on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of Caisson.
  7. Limitation of Liability.

    1. TOTAL LIABILITY. CAISSON’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES PAID TO CAISSON BY CUSTOMER PURSUANT TO THIS AGREEMENT.
    2. EXCLUSION OF DAMAGES. IN NO EVENT WILL CAISSON BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR the cost of procuring substitute products OR SERVICES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CAISSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
    3. Basis of Bargain. The parties expressly acknowledge and agree that Caisson has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between Caisson and Customer and form a basis of the bargain between the parties.
  8. Term and Termination.

    1. Term of the Agreement. This Agreement will begin on Customer’s use of or access to the Software and will remain in effect thereafter for the period of time agreed by the parties in writing, and if such a period is not specified or expressly agreed upon, for as long as Customer continues to use the Software, unless terminated earlier in accordance with Section 8 (the “Term”).
    2. Termination for Breach. Each party will have the right to terminate this Agreement if the other party breaches any term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof. Termination of this Agreement pursuant to this Section 8.2 terminates all Software licenses granted hereunder.
    3. Effect of Termination. Upon termination of this Agreement, Customer will promptly return to Caisson or destroy (in accordance with Caisson’s instructions) all Confidential Information of Caisson, the applicable Software and all Caisson Materials related to such Software, and all copies and portions thereof, in all forms and types of media, and provide Caisson with an officer’s written certification, certifying to Customer’s compliance with the foregoing. Upon expiration or termination of this Agreement or of any individual Software license granted hereunder, all licenses granted under the Agreement will terminate and Customer must immediately cease to use any Software or any other Caisson Materials. Except for a termination by Customer as a result of Caisson’s breach of this Agreement in accordance with Section 8.2, upon expiration or termination of the Agreement, Customer will pay Caisson for any unpaid Software license already performed and any other unpaid costs incurred by Caisson up to the expiration or termination.
    4. Survival. The rights and obligations of the parties contained in Sections 1, 2.2, 2.3, 2.4, 2.5, 2.7, 3, 4.1, 4.2, 4.4, 5, 6, 7, 8.3, 8.4, and 9 will survive the expiration or termination of this Agreement.
  9. General.

    1. Assignment. Customer will have no right to assign this Agreement, in whole or in part, by operation of law or otherwise, without Caisson’s express prior written consent. Any attempt to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
    2. Governing Law; Dispute Resolution. The validity, construction and interpretation of the Agreement will be governed by the internal laws of the State of New York, excluding its conflict of laws provisions. Except for the right of either party to apply to a court for a temporary restraining order, a preliminary injunction, or other equitable relief, any controversy, claim or action arising out of or relating to the Agreement will be settled by binding arbitration in New York, under the rules of the American Arbitration Association by a panel of three arbitrators appointed in accordance with such rules. The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in New York, New York for any action permitted under this Section, challenge to this Section, or judgment upon the award entered.
    3. Nonexclusive Remedy. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise
    4. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
    5. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
    6. Notices. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the addresses as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
    7. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, terrorism, riot, acts of God, or governmental action.
    8. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
    9. Export Control. Customer agrees to comply fully with all relevant export laws and regulations of the United States (the “Export Laws”) to ensure that neither the Software, nor any direct product thereof are: (i)exported or re-exported directly or indirectly in violation of Export Laws; or (ii)used for any purposes prohibited by the Export Laws, including nuclear, chemical, or biological weapons proliferation.
    10. Interpretation. For purposes of this Agreement: (i) the words and phrases “include,” “includes”, “including” and “such as” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
    11. Entire Agreement. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding its subject matter and supercedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
    12. Counterparts; Electronic Transmission. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery of an executed signature page to this Agreement by any party by electronic transmission will be as effective as delivery of a manually executed copy of this Agreement.

SCHEDULE A

Service Levels Objectives

  1. Definitions.

    1. "Maintenance Window" means a period scheduled by Caisson where Caisson performs maintenance tasks on the Software.
    2. "Unavailability" means that the Software is unavailable outside the Maintenance Window.
    3. "Uptime" means the general availability of the Software in one (1) minute increments. Uptime will be measured by a calendar monthly period and calculated as follows: ((Total minutes – Maintenance Window) - Total minutes of Unavailability) / (Total minutes – Maintenance Window).
  2. Uptime Commitment.

    Caisson will use commercially reasonable efforts to achieve 99% Uptime for the Software. Caisson is in no way responsible for any Unavailability caused by (i) Customer’s disablement of the Software for internal Customer maintenance; (ii) outages to or delays in any major Internet hosting providers or public Internet backbones; (iii) any failures of Customer’s equipment, hardware, software, or local access services; (iv) any Maintenance Window; or (v) events beyond Caisson’s control such as, riots, insurrection, fires, floods, explosions, war, governmental action, earthquakes, natural disasters, or interruptions in internet services to an area.
  3. Problem Reporting.

    Each party will use commercially reasonable efforts to notify the other party of technical problems.

Effective Date: January 16, 2019