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.
“Agreement” means this End User License Agreement, including its exhibits and schedules
annexed hereto or otherwise
incorporated herein, as amended from time to time.
“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.
“Customer Materials” means all data, information, and
any other materials provided or otherwise made available by Customer to Caisson
in connection with this Agreement.
the standard user documentation for the Software that Caisson makes available
to Customer for the Software.
“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.
“Results” means all data, information and materials
generated by the Software based on Customer Materials.
“Software” means the software
products and related Documentation, including any error corrections,
modifications and updates thereto, made available by Caisson to Customer under
“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.
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
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.
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.
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.
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
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.
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
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:
email@example.com. Any additional
support services may be provided pursuant to separate written agreements.
Fees and Expenses. Customer will pay Caisson
for the use of Software in accordance with a separate pricing page.
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
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
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
Questions regarding charges can be directed to firstname.lastname@example.org.
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.
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.
(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.
(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.
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.
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.
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.
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
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.
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.
Limitation of Liability.
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.
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
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.
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.
Term and Termination.
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”).
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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
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.
Service Levels Objectives
means a period scheduled by Caisson where Caisson performs maintenance tasks on
"Unavailability" means that the
Software is unavailable outside the Maintenance Window.
"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).
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.
Each party will use commercially
reasonable efforts to notify the other party of technical problems.
Effective Date: January 16, 2019