Terms of Service

This Terms of Service Agreement (“ToS”) is entered into by and between Theom, Inc., a Delaware corporation with offices at 355 Bryant Street, Suite 403, San Francisco, CA 94107 (“Theom”), and the Customer identified in the Order Form (as defined below) into which this ToS is incorporated (“Customer”), and is effective as of the last date of signature on the Order Form (the “Effective Date”). Each of Theom and Customer are a “Party” (and, collectively, the “Parties”).

Organizational Security

1. DEFINITIONS

1.1 “Affiliates”  means  an  entity  that  directly  or  indirectly  Controls,  is  Controlled  by,  or  is under  common Control  with  another  entity.  For the  purposes  of  this  definition,  “Control” means  beneficial  ownership  of more than 50% or the voting power or equity in an entity.

1.2 “Agreement” means this ToS together with all Order Forms, which are hereby incorporated by reference, and any other terms and conditions that have been incorporated herein by express reference.

1.3 “Authorized  Users” means  Customer’s  employee  or  contractor  personnel  authorized  by Customer  to access and use the Theom Materials.

1.4 “Customer  Data” means  any  data  that  Customer  makes  available  on  or  through  the Theom  Platform, whether or not such data is wholly contained within the Customer Cloud Environment.

1.5 “Customer  Cloud  Environment” means  the  Customer’s  accounts  with  cloud  service providers  or database-as-a-service providers, as mutually agreed by the Parties and as more particularly described in the Order Form.

1.6 “Documentation” means  any  printed  and  digital  instructions,  online  help  files,  technical documentation, and  other  materials  that  are  provided  by  Theom  to  Customer  describing the  intended  operation  of  the Theom Platform.

1.7 “Order  Form” means  the  mutually  executed  order  form  referencing  this  Agreement  that sets  forth  the specific  Subscription  Services  to  which  Customer  is  obtaining  subscription, the  pricing  therefor,  and  any additional terms applicable to the Subscription Services to be provided pursuant to the Order Form.

1.8 “Professional  Services” means  the  implementation  and  training  services,  if  any, identified  in  an  Order Form.

1.9 “Specifications” means  the  version  of  the  product  specifications  for  the  features  and functionality  of  the Theom Platform at the time the Theom Platform is made available by Theom to Customer.

1.11 “Subscription Services” means the services provided by Theom to Customer pursuant to an Order Form, including  without  limitation  access  to  and  use  of  the  Theom  Platform  and  all technology  associated therewith and any additional services to be provided pursuant to this Agreement, but excluding Professional Services.  

1.12 “Theom  Platform” means  Theom’s  proprietary  data  security  platform  and  related services  provided hereunder,  designed  to  be  deployed  on  or  otherwise  given  access  to customers’  systems  or  virtual  private clouds  for  internal  use  only  as  the  same  may  be deployed  on  the  Customer  Cloud  Environment,  and including all fixes, updates, and upgrades thereto made available to Customer.

2. SCOPE OF SERVICE AND SUPPORT

2.1 Subscription Services License. Subject to Customer’s ongoing compliance with the terms and conditions of this  Agreement,  Theom  hereby  grants  to  Customer  a  non-exclusive, non-transferable,  non-sublicensable, internal  right  commencing  on  the  Service  Start  Date  as set  forth  on  the  applicable  Order  Form  and continuing  for  the  duration  of  the  term  as set  forth  on  the  same  Order  Form  to  access  and  use,  and  allow Authorized  Users  to access  and  use,  the  Subscription  Services  solely  for  Customer’s  internal  business purposes. The Subscription Services may be discontinued, modified, enhanced and/or updated from time to time at Theom’s sole discretion. Theom will use reasonable efforts to give Customer prior written notice of any  material  change  to  the  Specifications.  In  the  event that Customer  is  dissatisfied  with  any  material change to the Specifications or discontinuance of all or part of the Subscription Services, Customer’s sole remedy is to terminate this Agreement.

2.2 Support.  On  an  Order  Form-by-Order  Form  basis,  during  the  subscription  term  of each  such  Order  Form, and for so long as Customer is current in its payment obligations, Theom will provide Customer with any support and maintenance for the Subscription Services as set forth in such Order Form.

2.3 Professional  Services.  Theom  will  provide  any  Professional  Services,  which  may include  configuration, deployment, guided services, consultation, education or training services, to the Customer as agreed upon by the Parties and as set forth in the Order Form. The fees and terms for such Professional Services will be as provided in the applicable Order Form.

2.4 Beta  Services.  From  time  to  time,  Customer  may  have  the  option  to  participate  in  a product  trial  or evaluation  program  with  Theom  where  Customer  is  permitted  access  to certain  services  or  features, including  our  Subscription  Services  and  Documentation,  at  no charge,  designated  as  design  partnership beta,  pilot,  limited  release  or  similar  (“Beta Services”)  offered  by  Theom.  Theom  grants  Customer  a revocable, limited, non-sublicensable, non-assignable internal right to access and use the Beta Products as set  forth on  the  corresponding  Order  Form  or  other  written  agreement  between  Theom  and Customer regarding the Beta Services.

2.5 Documentation. Subject to the terms and conditions of this Agreement, Theom hereby grants to Customer a non-exclusive,  revocable,  non-transferable,  non-sublicensable  license during  the  applicable  subscription term of the Order Form to reproduce, without modification, and use a reasonable number of copies of the Documentation solely for Customer’s internal business use and in connection with Customer’s authorized use of the applicable Subscription Services.

2.6 Customer Limitations. The rights granted herein are subject to the following restrictions. Customer will not, whether directly or indirectly (and will not allow any third party to):

  • reverse  engineer,  decompile,  disassemble,  translate,  modify,  or  create  derivative works of  the Subscription Services;
  • create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Subscription Services;
  • copy  or  reproduce  the  Subscription  Services,  except  to  the  extent  necessary  to exercise  the licensed use of the same hereunder;
  • alter or remove any trademarks or proprietary notices contained in or on the Subscription Services
  • attempt to probe, scan, or test the vulnerability of the Subscription Services, breach the security or authentication  measures  of  the  Subscription  Services  without  proper authorization,  or  willfully render any part of the Subscription Services unusable;
  • use or access the Subscription Services to develop a product or service that is competitive with the Subscription Services or engage in competitive analysis or benchmarking;
  • transfer,  distribute,  sell,  resell,  lease,  license,  sublicense,  operate  as  a  service  for  or on  behalf  of others, or otherwise assign the Subscription Services or otherwise offer access to the Subscription Services  to  a  third  party  other  than  to  Customer  and Authorized  Users  accessing  or  using  the Subscription Services in accordance with this Agreement;
  • circumvent or otherwise interfere with any authentication or security measures of the Subscription Services  or  otherwise  interfere  with  or  disrupt  the  integrity  or performance  of  the  Subscription Services;
  • export the Subscription Services or technical data or any copy, portions, or direct product thereof to  anyone  on  the  U.S.  Treasury  Department’s  list  of  Specially  Designated Nationals  or  the  U.S. Commerce Department’s Table of Denial Orders;
  • use  the  Subscription  Services  except  in  accordance  with  all  applicable  laws, including,  but  not limited to, laws related to the processing of data applicable to Customer’s use of the Subscription Services; or
  • otherwise   use   the   Subscription   Services   outside   the   scope   expressly   permitted   under   this Agreement.

2.7 Reservation of Rights. Except as expressly granted in this Agreement, Theom does not grant to Customer any  license  or  rights  (by  implication,  estoppel  or  otherwise)  in  the Subscription  Services.  All  other  rights are expressly reserved by Theom. Notwithstanding anything herein to the contrary, all rights in and to the Theom Platform and Documentation are licensed and not sold or transferred. Customer will include on any copies  it  makes  of  the Theom  Platform  or  Documentation  the  copyright  notices  or  proprietary  legends contained within the same

2.8 Customer Responsibilities. Customer will (i) be responsible for all use of the Subscription Services under its  account;  (ii)  use  commercially  reasonable  efforts  to  prevent unauthorized  access  to  or  use  of  the Subscription  Services,  and  notify  Theom  promptly of  any  such  unauthorized  access  or  use;  and  (iii)  be responsible  for  obtaining  and maintaining  any  equipment,  software,  and  ancillary  services  needed  to connect to, access, or otherwise use the Subscription Services, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software, and services, and Theom will have no liability for such failure.

2.9 Third-Party   Services.   Customer   acknowledges   and   agrees   that   the   Subscription   Services   relies   on application  programming  interfaces  (“APIs”)  and/or  other  services operated  or  provided  by  third  parties (“Third-Party Services”). Theom is not responsible for the operation of any Third-Party Services nor the availability  or  operation  of  the  Subscription Services  to  the  extent  such  availability  and  operation  is dependent upon Third-Party Services, such as APIs that allow access to the Customer Cloud Environment. Customer  is solely  responsible  for  procuring  any  and  all  rights  necessary  for  it  to  access  Third-Party Services  (except  for  those  Third-Party  Services  embedded  in  the  Subscription  Services or otherwise provided  by  Theom)  and  for  procuring  any  and  all  rights  necessary  for  Theom to  access  any  Third-Party Services  on  Customer’s  behalf.  Theom  does  not  make  any representations  or  warranties  with  respect  to Third-Party Services. Any interaction between Customer and a provider of Third-Party Services, including the exchange or transfer of data with or to such provider, is solely between Customer and such provider and is governed by such provider’s terms and conditions.

2.10 Affiliates.  Any  Affiliate  of  Customer  will  have  the  right  to  enter  into  an  Order  Form executed  by  such Affiliate  and  Theom  and  this  Agreement  will  apply  to  each  such  order form  as  if  such  Affiliate  were  a signatory to this Agreement. With respect to such Order Forms, each such Affiliate becomes a Party to this Agreement  and  references  to  Customer  in this  Agreement  are  deemed  to  be  references  to  such  Affiliate. Each  Order  Form  is  a separate  obligation  of  the  Customer  entity  that  executes  such  Order  Form,  and  no other Customer entity has any liability or obligation under such Order Form.

3. FEES

3.1 Fees. Customer will pay Theom all fees as set forth in the Order Form. Except as otherwise specified herein or in any applicable Order form, (a) fees are quoted and payable in United States dollars; and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. All amounts payable to Theom under this Agreement shall be due thirty (30) days from the date of invoice.

3.2 Audits.  Customer  will  maintain,  and  Theom  will  be  entitled  to  audit,  any  records relevant  to  Customer’s use of the Subscription Services hereunder. Theom may audit such records on reasonable notice at Theom’s cost (or, if the audits reveal material non-compliance with this Agreement, at Customer’s cost).

3.3 Late  Payment.  Theom  may  suspend  the  licenses  to  access  the  Subscription  Services immediately  upon notice  to  Customer  if  Customer  fails  to  pay  any  amounts  hereunder  at least  fifteen  (15)  days  past  the applicable due date. Notwithstanding any other remedies available to Theom, in the event of late payment by  Customer,  Theom  shall  be  entitled  to interest  on  the  amount  owing  at  a  rate  of  1%  per  month  or  the highest rate allowed by applicable law, whichever is less. If Theom is required to initiate legal action due to nonpayment of fees, Customer shall bear all costs resulting from the collection of such fees.

3.4 Taxes.  All  amounts  payable  hereunder  are  exclusive  of  any  sales  use,  and  other taxes or  duties  however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based upon the income of Theom. Customer will not withhold any taxes from any amounts due to Theom.

4. PROPRIETARY RIGHTS AND CONFIDENTIALITY.

4.1 Proprietary  Rights.  Customer  acknowledges  that  Theom  owns  and  retains  all  rights, title,  and  interest, including  all  intellectual  property  rights,  in  and  to  the  Subscription Services,  including  all  technology, software,  algorithms,  user  interfaces,  trade  secrets, techniques,  designs,  inventions,  works  of  authorship, and  other  tangible  and  intangible material  and  information  pertaining  thereto  or  included  therein,  and nothing  in  the Agreement  shall  preclude  or  restrict  Theom  from  using  or  exploiting  any  concepts,  ideas, techniques, or know-how of or related to the Subscription Services or otherwise arising in connection with Theom’s  performance  under  the  Agreement.  Other  than  as  expressly  set forth  in  this  Agreement,  no licenses  or  other  rights  in  or  to  the  Subscription  Services  are granted  to  Customer  and  all  rights  are expressly reserved.

4.2 Feedback.   Customer   may   from   time   to   time   provide   Theom   with   suggestions   or comments   for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Subscription Services. Theom will have full discretion to determine whether or not to proceed with the development of any requested enhancements improvements, new features or functionality. Theom will have  the  full,  unencumbered  right, without  any  obligation  to  compensate  or  reimburse  Customer,  to  use incorporate, and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

4.3 Confidential  Information.  “Confidential  Information”  means:  (i)  any  information disclosed, directly  or indirectly,  by  or  on  behalf  of  one  Party  (“Disclosing  Party”)  to  the  other  Party (“Receiving  Party”) pursuant  to  the  Agreement  that  is  designated  as  “confidential,”  or  in some  other  manner  to  indicate  its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential  manner  based  on  the circumstances  of  its  disclosure  or  the  nature  of  the  information  itself. Without limiting the foregoing, the Subscription Services, the functionality and performance of the Theom Platform, including  any  metrics  pertaining  thereto,  Aggregate  Data  (as  defined  below),  and  any data security  risk  assessments  provided  by  Theom  in  connection  with  any  use  of  the Subscription  Services  are the  Confidential  Information  of  Theom,  the  Customer  Data  is the Confidential  Information  of  Customer, and  the  terms  (but  not  the  existence)  of  the Agreement  will  be  kept  confidential  as  each  other  Party’s Confidential Information. However, Confidential Information does not include any information that: (a) is or  becomes generally  known  and  available  to  the  public  through  no  act  of  the  Receiving  Party;  (b) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at  the  time  of  disclosure  by  the  Disclosing  Party,  as  shown  by  the Receiving  Party’s  contemporaneous records;  (c)  is  lawfully  obtained  by  the  Receiving Party from  a  third  party  who  has  the  express  right  to make  such  disclosure;  or  (d)  is independently  developed  by  the  Receiving  Party  without  breach  of  an obligation owed to the Disclosing Party.

4.4 Use; Maintenance. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither Party shall disclose, or  permit  to  be  disclosed,  either  directly  or  indirectly,  any Confidential  Information  of  the  other  Party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of  confidentiality,  or  (ii) where  the  Receiving  Party  becomes  legally  compelled  to  disclose  Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally  compelled  disclosure  and  a  reasonable  opportunity  to  seek  a  protective  order  or other  confidential treatment  for  such  Confidential  Information  (if  permitted  by  applicable law).  Each  Party  will  take reasonable  measures  and  care  to  protect  the  secrecy  of,  and avoid  disclosure  and  unauthorized  use  of  the other Party’s Confidential Information, and will take at least those measures taken to protect its own most highly confidential information.

4.5 Aggregate Data. Customer acknowledges that Theom makes use of certain data and metadata relating to or generated  by  Theom’s  customers’  use  of  the  Subscription  Services in  order  to  provide  and  improve Theom’s  products  and  services.  Customer  acknowledges and  agrees  that  Theom  shall  have  the  right  to collect, use, disclose, or transfer as described herein certain data and information relating to or generated by Customer’s  use  and performance  of  the  Theom  Services,  so  long  as  such  data  and  information  is  in aggregate and/or other form that does not include any individually identifiable data (“Aggregate Data”).

5. REPRESENTATIONS,WARRANTIES, AND DISCLAIMERS.

5.1 DISCLAIMERS.  THE  SUBSCRIPTION  SERVICES,  INCLUDING  BUT  NOT  LIMITED  TO  THE THEOM   PLATFORM,   ARE   PROVIDED   “AS   IS”   AND   “WITH   ALL   FAULTS.”   EXCEPT   AS EXPRESSLY SET FORTH HEREIN, THEOM HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER     EXPRESS IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY,  TITLE,  NON-INFRINGEMENT,  FITNESS  FOR  A  PARTICULAR  PURPOSE, LOSS  OF  DATA,  OR  ACCURACY  OF  RESULTS.  THEOM  DOES  NOT  WARRANT  THAT  THE THEOM  PLATFORM  WILL  BE  ERROR-FREE,  UNINTERRUPTED,  OR  COMPATIBLE  WITH  ANY PARTICULAR  DEVICE,  THAT  ANY  DATA  PROVIDED  BY  OR  THROUGH  THE  SUBSCRIPTION SERVICES  WILL  BE  ACCURATE  OR  COMPLETE,  OR  THAT  USE  OF  THE  SUBSCRIPTION SERVICES  WILL  LIMIT  A  CUSTOMER’S  EXPOSURE  TO  OR  LIABILITY  FOR  ANY  DATA BREACH.

5.2 BETA  PRODUCTS.  FROM  TIME  TO  TIME,  CUSTOMER  MAY  HAVE  THE  OPTION  TO ACCESS AND   USE   BETA   PRODUCTS   OFFERED   BY   THEOM.   THE   BETA   PRODUCTS   ARE   NOT GENERALLY  AVAILABLE  AND  ARE  PROVIDED  “AS  IS”  AND  “WITH  ALL  FAULTS”. EXCEPT AS  EXPRESSLY  SET  FORTH  IN  THIS  AGREEMENT,  THEOM  DOES  NOT  PROVIDE ANY INDEMNITIES,  SERVICE  LEVEL  COMMITMENTS,  OR  WARRANTIES,  EXPRESS  OR IMPLIED, INCLUDING   WARRANTIES   OF   MERCHANTABILITY,   TITLE,   NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE BETA PRODUCTS. CUSTOMER OR  THEOM  MAY  TERMINATE  CUSTOMER’S  ACCESS  TO  THE  BETA  PRODUCTS AT  ANY TIME

6. INDEMNIFICATION

6.1  Indemnification  by  Theom.  Theom  shall  (i)  defend,  or  at  its  own  option  settle,  any claim  brought  against Customer  by  a  third  party  to  the  extent  it  alleges  (a)  that  the Theom  Platform,  or  Customer’s  use  thereof during  the  applicable  Term  as  authorized  in the  Agreement,  constitutes  a  direct  infringement  of  U.S. patents, copyrights, or trade secrets of any third party (each such claim, an “Infringement Claim”); and (ii) pay  any  damages awarded  in  a  final  judgment  (or  amounts  agreed  upon  in  a  monetary  settlement)  in  any such Infringement Claim defended by Theom; provide that Customer provides Theom with prompt written notice  of,  sole  control  over  the  defense  and  settlement  of,  and  all information  reasonably  requested  by Theom in connection with such defense or settlement of any such Infringement Claim. If any Infringement Claim is brought or threatened, Theom may, at its sole option and expense: (w) procure for Customer the right to continue using the Theom Platform; (x) modify the Theom Platform, as applicable, to make it non-infringing;  (y)  replace the  affected  aspect  of  the  Theom  Platform  with  non-infringing  technology  having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement. Notwithstanding the foregoing, Theom will have no obligation to Customer for (1) any use of the  Theom  Platform  in  combination  with  software,  products,  or services  not  provided  by  Theom,  to  the extent that the Theom Platform would not be infringing but for such combination or modification; or (2) for Customer’s failure to use the Theom Platform in accordance with the Agreement.

6.2 DISCLAIMER. Section 6.1 states the entire liability of theom, and the exclusive remedy of Customer, with respect to any actual or alleged infringement of any intellectual property rights by Theom, the Subscription Services, or any part thereof.

6.3  Indemnification  by  Customer.  Notwithstanding  anything  to  the  contrary  in  Section  6.1, Customer  shall defend or, at its option, settle, any claim brought against Theom by a third party (i) alleging that the access to or use by or on behalf of Theom of the Customer Data in accordance with the Agreement violates a third party’s rights or any laws; (ii) arising out of any unauthorized access to or use of the Subscription Services by Customer or any Authorized Users or any third party utilizing any access credentials of Customer or any Authorized Users; (iii) arising out of the use of the Subscription Services in violation or in connection with a violation of applicable law; (iv) arising out of the operation of the Customer’s business; or (v) arising out of  Customer’s  or  Authorized  Users’  use  of  or  reliance  on  data  generated  by the  Subscription  Services, including  any  allegations  that  any  use  of  such  data  by Customer  or  Authorized  Users  infringes  or misappropriates any third party’s rights or violates any laws. Customer will indemnify Theom for all costs, liabilities,  damages,  and  expenses incurred  by  Theom  (or  the  amount  of  any  settlement  entered  into  or approved in writing by Customer) with respect to such a claim. Theom shall provide Customer with prompt written notice of, sole control over the defense and settlement of, and all information reasonably requested by Customer in connection with such defense or settlement of, any such claim.

7. LIMITATION OF LIABILITY

EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND THEOM’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO AN INFRINGEMENT CLAIM UNDER THE AGREEMENT, (I) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,   EXEMPLARY,   PUNITIVE,   OR   CONSEQUENTIAL   DAMAGES   ARISING   OUT   OF   OR RELATING TO THE AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER  FOR  BREACH  OF  CONTRACT,  TORT  (INCLUDING  NEGLIGENCE),  OR OTHERWISE,  EVEN IF  A  PARTY  HAS  BEEN  ADVISED  OF  THE  POSSIBILITY  OF  SUCH DAMAGES;  AND  (ii)  NEITHER PARTY’S  TOTAL  LIABILITY  (INCLUDING  ATTORNEYS’  FEES) ARISING  OUT  OF  OR  RELATED  TO THE   AGREEMENT   (EXCEPT   FOR   CUSTOMER’S   PAYMENT   OBLIGATIONS)   WILL   EXCEED   THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

8. TERM AND TERMINATION

8.1 Term.  The  Agreement  will  commence  on  the  Effective  Date  and  continue  until terminated  in  accordance with the Agreement (the “Term”). The initial term of each Order Form will begin on the effective date of each such Order Form, as defined on that Order Form, and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form shall automatically renew for successive  renewal  terms  equal  to  the length  of  the  initial  term  of  such  Order  form,  unless  either  Party provides  written  notice of  non-renewal  at  least  sixty  (60)  days  prior  to  the  end  of  the  then-current  term. Theom may  increase  the  fees  payable  under  an  Order  Form,  effective  at  the  start  of  the  then-upcoming renewal term, by providing written notice of such increase to Customer at least thirty (30) days prior to the end of the then-current term.

8.2 Term.  The  Agreement  will  commence  on  the  Effective  Date  and  continue  until terminated  in  accordance with the Agreement (the “Term”). The initial term of each Order Form will begin on the effective date of each such Order Form, as defined on that Order Form, and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form shall automatically renew for successive  renewal  terms  equal  to  the length  of  the  initial  term  of  such  Order  form,  unless  either  Party provides  written  notice of  non-renewal  at  least  sixty  (60)  days  prior  to  the  end  of  the  then-current  term. Theom may  increase  the  fees  payable  under  an  Order  Form,  effective  at  the  start  of  the  then-upcoming renewal term, by providing written notice of such increase to Customer at least thirty (30) days prior to the end of the then-current term.

8.3 Termination.  Each  Party  may  terminate  this  Agreement  upon  written  notice  to  the other  Party  if  there  are no Order Forms then in effect. Each Party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other Party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach  or  (b)  subject  to applicable  law,  upon  the  other  Party’s  liquidation,  commencement  of  dissolution proceedings  or  assignment  of  substantially  all  its  assets  for  the  benefit  of  creditors,  or  if the  other  Party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

8.4 Effect  of  Termination.  Upon  the  effective  date  of  the  expiration  or  termination  of  the Agreement  for  any reason: (i) Customer’s access to the Theom Platform, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately;  and  (iii)  Customer  shall immediately  return,  or  at  Theom’s  request  destroy  and  certify  the destruction of any tangible embodiments of Theom’s Confidential Information, including all copies of the Documentation.  The  following  provisions  will  survive  the  expiration  or  termination  of  the Agreement  for any reason: Sections 1, 2.6, 3 through 7, 8.3, and 9.

9. GENERAL

9.1 Assignment.  Neither  Party  may  assign  the  Agreement  or  any  of  its  rights  or obligations  under  the Agreement  without  the  prior  written  consent  of  the  other  Party, except  that  Theom  may  assign  the Agreement  without  the  consent  of  Customer  as  part of  a  corporate  reorganization,  or  upon  a  change  of control,  consolidation,  merger,  sale  of all  or  substantially  all  of  its  business  or  assets  related  to  the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be  binding upon  and  inure  to  the  benefit  of  the  Parties  and  their  respective  successors  and permitted assigns.

9.2 Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed Party shall give the other Party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.

9.3 Governing  Law.  The  Agreement  shall  be  governed  by  and  construed  under  the  laws of  the  State  of California  without  reference  to  conflict  of  laws  principles.  The  application of  the  United  Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 9.6,  if  a  lawsuit  or  court  proceeding  is  permitted  under the  Agreement,  the  Parties  will  be  subject  to  the exclusive  jurisdiction  of  the  state  and federal  courts  located  in  San  Francisco,  California,  and  the  Parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.

9.4 Publicity.  Theom  may  use  Customer’s  name  as  a  reference  for  marketing  or promotional  purposes  on Theom’s  website  and  in  other  communication  with  existing  or potential  Theom  customers;  subject  to Customer’s prior approval of any such use.

9.5 Government  Rights.  Theom  provides  the  Subscription  Services,  including  any  related software,  data,  and technology, for ultimate government end use solely in accordance with the following: The Theom Platform shall constitute “commercial” computer software. Government technical data and software rights related to the  Theom  Platform  include  only  those  rights customarily  provided  to  the  public  as  defined  in  the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data)  and  FAR 12.212  (Customer-Side  Application)  and,  for  Department  of  Defense  transactions,  DFAR 252.227-7015  (Technical  Data  –  Commercial  Items)  and  DFAR  227.7202-3  (Rights  in Commercial Computer  Customer-Side  Application  or  Computer  Customer-Side  Application Documentation).  If  a government  agency  has  a  need  for  rights  not  granted  under  these terms,  it  must  negotiate  with  Theom  to determine  if  there  are  acceptable  terms  for granting  those  rights,  and  a  mutually  acceptable  written addendum specifically granting those rights must be included in any applicable agreement.

9.6 Arbitration.  The  Parties  agree  to  resolve  all  disputes  arising  under  or  in  connection with  the  Agreement through binding arbitration. A Party who intends to seek arbitration must first send a written notice of the dispute to the other Party. The Parties will use good faith efforts to resolve the dispute directly, but if the Parties  do  not  reach  an  agreement  to  do  so within  30  days  after  the  notice  is  received,  either  Party  may commence  an  arbitration proceeding.  The  arbitration  will  be  conducted  in  accordance  with  the  applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in San Francisco,  California,  USA.  If  the  Parties  do  not  agree  on  an  arbitrator,  the  arbitrator  will be  selected  in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator  under  the  rules  of  the  AAA  will  be  final  and binding  on  the  Parties.  The  arbitrator  must  be independent  of  the  Parties.  The arbitrator’s decision  will  be  final  and  binding  on  both  Parties,  and  the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally  by  both  Parties;  however,  if  the  arbitrator  finds  that  either  the  substance  of  the claim  or  the  relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 96 will not prohibit either Party from: (i) bringing an individual action  in  small  claims  court;  (ii) seeking  injunctive  or  other  equitable  relief  in  a  court  of  competent jurisdiction;  (iii) pursuing  an  enforcement  action  through  the  applicable  federal,  state,  or  local  agency  if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or  misappropriation  claim.  If  this  Section  9.6  is  found  to  be  unenforceable, the  Parties  agree  that  the exclusive jurisdiction and venue described in Section 9.3 will govern any action arising out of or related to the Agreement.

9.7 Miscellaneous.  This  Agreement  is  the  sole agreement  of  the  Parties  concerning  the subject  matter  hereof, and supersedes all prior agreements and understandings with respect to said subject matter. In the event of a conflict  between  this  TOS  and  any  Order  Form,  the terms  and  conditions  of  the  Order  Form  will  prevail. Customer  may  not  subcontract  or delegate  any  rights  or  obligations  granted  to  it  under  the  Agreement  to any  third  parties, including  its  consultants  or  contractors,  without  the  prior  written  consent  of  Theom. Customer  agrees  that  it  is  solely  responsible  for  any  liability  arising  out  of  its  own  or Authorized  Users’ access  to  and  use  of  the  Subscription  Services  in  violation  of  this Agreement.  No  terms  of  any  purchase order,  acknowledgement,  or  other  form  provided by Customer  in  connection  with  an  Order  Form  will modify  the  Agreement,  regardless  of  any failure  of  Theom  to  object  to  such  terms.  Any  ambiguity  in  the Agreement  shall  be interpreted  without  regard  to  which  Party  drafted  the  Agreement  or any  part  thereof. Nothing contained herein will or is intended to give rise to any rights of any kind to any third parties. The Agreement may only be amended by a writing signed by both Parties. The Agreement may be executed in counterparts. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation  of  the  Agreement. Any  required notice  shall  be  given  in  writing  by  customary  means  with receipt  confirmed at  the address  of  each  Party  as  set  forth  above,  or  to  such  other  address  as  either Party may substitute  by  written  notice  to  the  other,  or  by  email  by  and  to  an  authorized representative  of  such Party. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit in certified mail, or immediately upon sending of an email. The relationship between the Parties shall be that of independent contractors. Theom may  use subcontractors  or  otherwise delegate  aspects  of  its  performance  under  the  Agreement; provided that  Theom  shall remain  responsible  hereunder  for  any  such  subcontractor’s performance.  Waiver  of  any term of the Agreement or forbearance to enforce any term by either Party shall not constitute a waiver as to any  subsequent  breach  or  failure  of  the  same term  or  a  waiver  of  any  other term  of  the  Agreement.  Any provision  found  to  be unlawful,  unenforceable  or  void  shall be severed  from  the  remainder  of  the Agreement and  the  remainder  of  the  Agreement  will continue  in  full  force  and  effect  without  said provision.  The  Parties  agree  to  comply  with all  applicable  export  control  laws  and  regulations  related  to their performance of the Agreement.

1. Definitions

  1. Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity. For the purposes of this definition, “Control” means beneficial ownership of more than 50% or the voting power or equity in an entity.
  2. Agreement” means this ToS together with all Order Forms, which are hereby incorporated by reference, and any other terms and conditions that have been incorporated herein by express reference.
  3. Authorized Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Theom Materials.
  4. Customer Data” means any data that Customer makes available on or through the Theom Platform, whether or not such data is wholly contained within the Customer Cloud Environment.  
  5. Customer Cloud Environment” means the Customer’s accounts with cloud service providers or database-as-a-service providers, as mutually agreed by the Parties and as more particularly described in the Order Form.
  6. Documentation” means any printed and digital instructions, online help files, technical documentation, and other materials that are provided by Theom to Customer describing the intended operation of the Theom Platform.
  7. Order Form” means the mutually executed order form referencing this Agreement that sets forth the specific Subscription Services to which Customer is obtaining subscription, the pricing therefor, and any additional terms applicable to the Subscription Services to be provided pursuant to the Order Form.
  8. Professional Services” means the implementation and training services, if any, identified in an Order Form.
  9. Specifications” means the version of the product specifications for the features and functionality of the Theom Platform at the time the Theom Platform is made available by Theom to Customer.
  10. Subscription Services” means the services provided by Theom to Customer pursuant to an Order Form, including without limitation access to and use of the Theom Platform and all technology associated therewith and any additional services to be provided pursuant to this Agreement, but excluding Professional Services.
  11. Theom Platform” means Theom’s proprietary data security platform and related services provided hereunder, designed to be deployed on or otherwise given access to customers’ systems or virtual private clouds for internal use only as the same may be deployed on the Customer Cloud Environment, and including all fixes, updates, and upgrades thereto made available to Customer.

2. Scope of Service and Support

  1. Subscription Services License. Subject to Customer’s ongoing compliance with the terms and conditions of this Agreement, Theom hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right commencing on the Service Start Date as set forth on the applicable Order Form and continuing for the duration of the term as set forth on the same Order Form to access and use, and allow Authorized Users to access and use, the Subscription Services solely for Customer’s internal business purposes. The Subscription Services may be discontinued, modified, enhanced and/or updated from time to time at Theom’s sole discretion. Theom will use reasonable efforts to give Customer prior written notice of any material change to the Specifications. In the event that Customer is dissatisfied with any material change to the Specifications or discontinuance of all or part of the Subscription Services, Customer’s sole remedy is to terminate this Agreement.
  2. Support. On an Order Form-by-Order Form basis, during the subscription term of each such Order Form, and for so long as Customer is current in its payment obligations, Theom will provide Customer with any support and maintenance for the Subscription Services as set forth in such Order Form.
  3. Professional Services. Theom will provide any Professional Services, which may include configuration, deployment, guided services, consultation, education or training services, to the Customer as agreed upon by the Parties and as set forth in the Order Form. The fees and terms for such Professional Services will be as provided in the applicable Order Form.
  4. Beta Services. From time to time, Customer may have the option to participate in a product trial or evaluation program with Theom where Customer is permitted access to certain services or features, including our Subscription Services and Documentation, at no charge, designated as design partnership beta, pilot, limited release or similar (“Beta Services”) offered by Theom. Theom grants Customer a revocable, limited, non-sublicensable, non-assignable internal right to access and use the Beta Products as set forth on the corresponding Order Form or other written agreement between Theom and Customer regarding the Beta Services.
  5. Documentation. Subject to the terms and conditions of this Agreement, Theom hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicensable license during the applicable subscription term of the Order Form to reproduce, without modification, and use a reasonable number of copies of the Documentation solely for Customer’s internal business use and in connection with Customer’s authorized use of the applicable Subscription Services.
  6. Customer Limitations. The rights granted herein are subject to the following restrictions. Customer will not, whether directly or indirectly (and will not allow any third party to):
  1. reverse engineer, decompile, disassemble, translate, modify, or create derivative works of the Subscription Services;
  2. create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Subscription Services;
  3. copy or reproduce the Subscription Services, except to the extent necessary to exercise the licensed use of the same hereunder;
  4. alter or remove any trademarks or proprietary notices contained in or on the Subscription Services
  5. attempt to probe, scan, or test the vulnerability of the Subscription Services, breach the security or authentication measures of the Subscription Services without proper authorization, or willfully render any part of the Subscription Services unusable;
  6. use or access the Subscription Services to develop a product or service that is competitive with the Subscription Services or engage in competitive analysis or benchmarking;
  7. transfer, distribute, sell, resell, lease, license, sublicense, operate as a service for or on behalf of others, or otherwise assign the Subscription Services or otherwise offer access to the Subscription Services to a third party other than to Customer and Authorized Users accessing or using the Subscription Services in accordance with this Agreement;
  8. circumvent or otherwise interfere with any authentication or security measures of the Subscription Services or otherwise interfere with or disrupt the integrity or performance of the Subscription Services;
  9. export the Subscription Services or technical data or any copy, portions, or direct product thereof to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders;  
  10. use the Subscription Services except in accordance with all applicable laws, including, but not limited to, laws related to the processing of data applicable to Customer’s use of the Subscription Services; or
  11. otherwise use the Subscription Services outside the scope expressly permitted under this Agreement.
  1. Reservation of Rights. Except as expressly granted in this Agreement, Theom does not grant to Customer any license or rights (by implication, estoppel or otherwise) in the Subscription Services. All other rights are expressly reserved by Theom. Notwithstanding anything herein to the contrary, all rights in and to the Theom Platform and Documentation are licensed and not sold or transferred. Customer will include on any copies it makes of the Theom Platform or Documentation the copyright notices or proprietary legends contained within the same.
  2. Customer Responsibilities. Customer will (i) be responsible for all use of the Subscription Services under its account; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services, and notify Theom promptly of any such unauthorized access or use; and (iii) be responsible for obtaining and maintaining any equipment, software, and ancillary services needed to connect to, access, or otherwise use the Subscription Services, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software, and services, and Theom will have no liability for such failure.
  3. Third-Party Services. Customer acknowledges and agrees that the Subscription Services relies on application programming interfaces (“APIs”) and/or other services operated or provided by third parties (“Third-Party Services”). Theom is not responsible for the operation of any Third-Party Services nor the availability or operation of the Subscription Services to the extent such availability and operation is dependent upon Third-Party Services, such as APIs that allow access to the Customer Cloud Environment. Customer is solely responsible for procuring any and all rights necessary for it to access Third-Party Services (except for those Third-Party Services embedded in the Subscription Services or otherwise provided by Theom) and for procuring any and all rights necessary for Theom to access any Third-Party Services on Customer’s behalf. Theom does not make any representations or warranties with respect to Third-Party Services. Any interaction between Customer and a provider of Third-Party Services, including the exchange or transfer of data with or to such provider, is solely between Customer and such provider and is governed by such provider’s terms and conditions.
  4. Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Theom and this Agreement will apply to each such order form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, each such Affiliate becomes a Party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

3. Fees

  1. Fees. Customer will pay Theom all fees as set forth in the Order Form. Except as otherwise specified herein or in any applicable Order form, (a) fees are quoted and payable in United States dollars; and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. All amounts payable to Theom under this Agreement shall be due thirty (30) days from the date of invoice.
  2. Audits. Customer will maintain, and Theom will be entitled to audit, any records relevant to Customer’s use of the Subscription Services hereunder. Theom may audit such records on reasonable notice at Theom’s cost (or, if the audits reveal material non-compliance with this Agreement, at Customer’s cost).
  3. Late Payment. Theom may suspend the licenses to access the Subscription Services immediately upon notice to Customer if Customer fails to pay any amounts hereunder at least fifteen (15) days past the applicable due date. Notwithstanding any other remedies available to Theom, in the event of late payment by Customer, Theom shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less. If Theom is required to initiate legal action due to nonpayment of fees, Customer shall bear all costs resulting from the collection of such fees.
  4. Taxes. All amounts payable hereunder are exclusive of any sales use, and other taxes or duties however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based upon the income of Theom. Customer will not withhold any taxes from any amounts due to Theom.

4. Proprietary Rights and Confidentiality.

  1. Proprietary Rights. Customer acknowledges that Theom owns and retains all rights, title, and interest, including all intellectual property rights, in and to the Subscription Services, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein, and nothing in the Agreement shall preclude or restrict Theom from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Subscription Services or otherwise arising in connection with Theom’s performance under the Agreement. Other than as expressly set forth in this Agreement, no licenses or other rights in or to the Subscription Services are granted to Customer and all rights are expressly reserved.
  2. Feedback. Customer may from time to time provide Theom with suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Subscription Services. Theom will have full discretion to determine whether or not to proceed with the development of any requested enhancements improvements, new features or functionality. Theom will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use incorporate, and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
  3. Confidential Information. Confidential Information” means: (i) any information disclosed, directly or indirectly, by or on behalf of one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to the Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the Subscription Services, the functionality and performance of the Theom Platform, including any metrics pertaining thereto, Aggregate Data (as defined below), and any data security risk assessments provided by Theom in connection with any use of the Subscription Services are the Confidential Information of Theom, the Customer Data is the Confidential Information of Customer, and the terms (but not the existence) of the Agreement will be kept confidential as each other Party’s Confidential Information. However, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act of the Receiving Party; (b) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party.
  4. Use; Maintenance. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (ii) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential Information (if permitted by applicable law). Each Party will take reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of the other Party’s Confidential Information, and will take at least those measures taken to protect its own most highly confidential information.
  5. Aggregate Data. Customer acknowledges that Theom makes use of certain data and metadata relating to or generated by Theom’s customers’ use of the Subscription Services in order to provide and improve Theom’s products and services. Customer acknowledges and agrees that Theom shall have the right to collect, use, disclose, or transfer as described herein certain data and information relating to or generated by Customer’s use and performance of the Theom Services, so long as such data and information is in aggregate and/or other form that does not include any individually identifiable data (“Aggregate Data”).

5. Representations, Warranties, and Disclaimers.

  1. DISCLAIMERS. THE SUBSCRIPTION SERVICES, INCLUDING BUT NOT LIMITED TO THE THEOM PLATFORM, ARE PROVIDED “AS IS” AND “WITH ALL FAULTS.” EXCEPT AS EXPRESSLY SET FORTH HEREIN, THEOM HEREBY DISCLAIMS ANY AND ALL WARRANTIES, Whether EXPRESS IMPLIED, or statutory, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, loss of data, or accuracy of results. Theom does not warrant that the theom platform will be error-free, uninterrupted, or compatible with any particular device, that any data provided by or through the Subscription Services will be accurate or complete, OR THAT USE OF THE SUBSCRIPTION SERVICES WILL LIMIT A CUSTOMER’S EXPOSURE TO OR LIABILITY FOR ANY DATA BREACH.
  2. BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO ACCESS AND USE BETA PRODUCTS OFFERED BY THEOM. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THEOM DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE BETA PRODUCTS. CUSTOMER OR THEOM MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

6. Indemnification

  1. Indemnification by Theom. Theom shall (i) defend, or at its own option settle, any claim brought against Customer by a third party to the extent it alleges (a) that the Theom Platform, or Customer’s use thereof during the applicable Term as authorized in the Agreement, constitutes a direct infringement of U.S. patents, copyrights, or trade secrets of any third party (each such claim, an “Infringement Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed upon in a monetary settlement) in any such Infringement Claim defended by Theom; provide that Customer provides Theom with prompt written notice of, sole control over the defense and settlement of, and all information reasonably requested by Theom in connection with such defense or settlement of any such Infringement Claim. If any Infringement Claim is brought or threatened, Theom may, at its sole option and expense: (w) procure for Customer the right to continue using the Theom Platform; (x) modify the Theom Platform, as applicable, to make it non-infringing; (y) replace the affected aspect of the Theom Platform with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement. Notwithstanding the foregoing, Theom will have no obligation to Customer for (1) any use of the Theom Platform in combination with software, products, or services not provided by Theom, to the extent that the Theom Platform would not be infringing but for such combination or modification; or (2) for Customer’s failure to use the Theom Platform in accordance with the Agreement.
  2. DISCLAIMER. Section 6.1 states the entire liability of theom, and the exclusive remedy of Customer, with respect to any actual or alleged infringement of any intellectual property rights by Theom, the Subscription Services, or any part thereof.
  3. Indemnification by Customer. Notwithstanding anything to the contrary in Section 6.1, Customer shall defend or, at its option, settle, any claim brought against Theom by a third party (i) alleging that the access to or use by or on behalf of Theom of the Customer Data in accordance with the Agreement violates a third party’s rights or any laws; (ii) arising out of any unauthorized access to or use of the Subscription Services by Customer or any Authorized Users or any third party utilizing any access credentials of Customer or any Authorized Users; (iii) arising out of the use of the Subscription Services in violation or in connection with a violation of applicable law; (iv) arising out of the operation of the Customer’s business; or (v) arising out of Customer’s or Authorized Users’ use of or reliance on data generated by the Subscription Services, including any allegations that any use of such data by Customer or Authorized Users infringes or misappropriates any third party’s rights or violates any laws. Customer will indemnify Theom for all costs, liabilities, damages, and expenses incurred by Theom (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Theom shall provide Customer with prompt written notice of, sole control over the defense and settlement of, and all information reasonably requested by Customer in connection with such defense or settlement of, any such claim.

7. Limitation of Liability.

Except for Customer’s indemnification obligations and Theom’s indemnification obligations with respect to an infringement claim under the Agreement, (i) in no event will either Party be liable for any indirect, special, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT (EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS) WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

8. Term and Termination

  1. Term. The Agreement will commence on the Effective Date and continue until terminated in accordance with the Agreement (the “Term”). The initial term of each Order Form will begin on the effective date of each such Order Form, as defined on that Order Form, and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form shall automatically renew for successive renewal terms equal to the length of the initial term of such Order form, unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. Theom may increase the fees payable under an Order Form, effective at the start of the then-upcoming renewal term, by providing written notice of such increase to Customer at least thirty (30) days prior to the end of the then-current term.
  2. Termination. Each Party may terminate this Agreement upon written notice to the other Party if there are no Order Forms then in effect. Each Party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other Party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other Party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other Party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
  3. Effect of Termination. Upon the effective date of the expiration or termination of the Agreement for any reason: (i) Customer’s access to the Theom Platform, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall immediately return, or at Theom’s request destroy and certify the destruction of any tangible embodiments of Theom’s Confidential Information, including all copies of the Documentation. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1, 2.6, 3 through 7, 8.3, and 9.

9. General

  1. Assignment. Neither Party may assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other Party, except that Theom may assign the Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
  2. Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed Party shall give the other Party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
  3. Governing Law. The Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 9.6, if a lawsuit or court proceeding is permitted under the Agreement, the Parties will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and the Parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
  4. Publicity. Theom may use Customer’s name as a reference for marketing or promotional purposes on Theom’s website and in other communication with existing or potential Theom customers; subject to Customer’s prior approval of any such use.
  5. Government Rights. Theom provides the Subscription Services, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Theom Platform shall constitute “commercial” computer software. Government technical data and software rights related to the Theom Platform include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Theom to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
  6. Arbitration. The Parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A Party who intends to seek arbitration must first send a written notice of the dispute to the other Party. The Parties will use good faith efforts to resolve the dispute directly, but if the Parties do not reach an agreement to do so within 30 days after the notice is received, either Party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in San Francisco, California, USA. If the Parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the Parties. The arbitrator must be independent of the Parties. The arbitrator’s decision will be final and binding on both Parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both Parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 9.6 will not prohibit either Party from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 9.6 is found to be unenforceable, the Parties agree that the exclusive jurisdiction and venue described in Section 9.3 will govern any action arising out of or related to the Agreement.
  7. Miscellaneous. This Agreement is the sole agreement of the Parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. In the event of a conflict between this TOS and any Order Form, the terms and conditions of the Order Form will prevail. Customer may not subcontract or delegate any rights or obligations granted to it under the Agreement to any third parties, including its consultants or contractors, without the prior written consent of Theom. Customer agrees that it is solely responsible for any liability arising out of its own or Authorized Users’ access to and use of the Subscription Services in violation of this Agreement. No terms of any purchase order, acknowledgement, or other form provided by Customer in connection with an Order Form will modify the Agreement, regardless of any failure of Theom to object to such terms. Any ambiguity in the Agreement shall be interpreted without regard to which Party drafted the Agreement or any part thereof. Nothing contained herein will or is intended to give rise to any rights of any kind to any third parties. The Agreement may only be amended by a writing signed by both Parties. The Agreement may be executed in counterparts. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation of the Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each Party as set forth above, or to such other address as either Party may substitute by written notice to the other, or by email by and to an authorized representative of such Party. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit in certified mail, or immediately upon sending of an email. The relationship between the Parties shall be that of independent contractors. Theom may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Theom shall remain responsible hereunder for any such subcontractor’s performance. Waiver of any term of the Agreement or forbearance to enforce any term by either Party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of the Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision. The Parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.