These Terms & Conditions govern the Sandbar Technologies, Inc. Master Services Agreement Order Form under which Customer may subscribe to certain Services or order certain Services from Company.  

1. SERVICES; OPERATIONS.

(a) All services relating to providing Data to Customer by the Company (collectively, the “Services”) shall be subject to the terms and conditions of this Agreement.  In addition to identification of the Services being provided, each of the Services shall be provided pursuant to the Order Form  and/or a schedule to this Agreement (each, a “Schedule”).  The Order Form shall include: the fees and costs for the subscription to Data, and the Schedules shall include (i) a description of the services to be provided hereunder, and (ii) a description of the types of data to be provided.  The term “Data” means all data, data feeds, and data reports provided or generated by the Services for delivery to or access by Customer during the Term of this Agreement, in any form, as further described on Schedule 1.  The Services shall be provided in conformity with the Service Level Terms, as set forth in Schedule 2.

(b)  Customer agrees, at its expense, to make its personnel and/or third party vendors available as reasonably necessary for Company to complete provisioning of the Services.  Customer further agrees to allow Company reasonable access to Customer’s (i) data, information, and materials as requested by Company and (ii) systems, software and databases, to enable Company to provide the Services and the Data.  Customer acknowledges and agrees that Company’s ability to provide the Services and Data in accordance with the terms of this Agreement is dependent upon and subject to Customer’s timely performance of its obligations under this Agreement.

(c) Operations. Services may be subject to temporary shutdowns or delays due to causes beyond the Company’s reasonable control. The Company may also suspend access to its website, computer systems, or data to protect against security threats or to protect the technical integrity of Company’s website or computer systems, Services, or Data, or other similar reason. Company will notify Customer of such suspension as soon as reasonably possible.

(d) Proof of Value (“POV”).  To the extent there is a POV indicated and agreed to on the Order Form, then Section 7(b) and Company’s obligations under Section 8, and Service Level Terms as set forth in Schedule 2, shall each be deemed excluded from this Agreement and not in effect.  Furthermore, the following shall replace Section 9(b): IN NO EVENT SHALL (I) COMPANY BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR COMPANY IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) COMPANY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT EXCEED FIFTY DOLLARS ($50.00). 

 

2. OWNERSHIP OF COMPANY IP.

(a)  Company IP.  Except as set forth in Section 3 below, the parties agree that Company shall exclusively own and retain all Intellectual Property Rights in and to “Company IP,” defined as the (i) Services; (ii) Data; (iii) the platform developed by the Company for generation and delivery of the Data (“Platform“); (iv) Software and all improvements, enhancements, and modifications thereto; (v) methods and methodologies for generating the Data; (vi) all metadata, structures, formatting and selection of the Data; and (vii) all other works of authorship, programs, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, business, templates, documents, materials, technology, inventions, trademarks, software, source code, object code, compiled code, website(s), modifications, updates and enhancements and concepts (“Works”), any of which existed prior to the Effective Date of this Agreement or independent of this Agreement or the Services, whether created by or for Company (“Pre-Existing Materials”); (viii) any and all data collected by the Company, other than through Customer, any and all data compilations generated by the Company, any and all data residing in Company’s system and Platform (other than Customer Data and Data) and/or generated by the Company system and Platform, including, without limitation, all de-identified, and aggregated data (including de-identified Data) compiled and/or generated by Company, irrespective of where the data originated, but specifically excluding Customer Data (collectively, “Company Data“); (ix) any and all Works that are developed by Company, jointly by Customer and Company, or by Customer and that are improvements to, replacements for, or recreations of the Services, Data, Company Data, and/or Pre-Existing Materials; and (x) all feedback, comments, and suggestions by Customer relating to Company IP and/or to improvements, enhancements, and/or revisions to Company IP and (xi) all intellectual property rights related to any of the foregoing. To the extent Company is not automatically deemed to be the author, inventor or owner of any of Company IP, Customer agrees to and hereby does assign, transfer, grant, and convey all rights, title, and interest it may have in and/or to any of Company IP to Company, and agrees to execute all documents necessary to effect Company’s full ownership in and to all of Company IP.  Customer appoints Company its attorney in fact to execute such documents, which appointment is coupled with an interest and is therefore irrevocable. The term “Intellectual Property Rights” means copyrights, trademarks, service marks, patents, applications for each of the foregoing, and all continuations, divisional, continuations-in-part, reissues, renewals, extensions, reexamination certificates, post-issuance certificates, revivals relating to the foregoing, trade secrets, database rights, rights in data compilation, moral rights, contractual rights of non-disclosure or any other intellectual property or proprietary rights, however arising, throughout the world.

(b) License Grant.  Company grants Customer a non-exclusive, non-transferable, limited license to use the Services and Data in accordance with the terms of this Agreement and each Schedule, and to access the Services and the Data in accordance with the terms of this Agreement and each Schedule.

(c) Limitations on Use.  Except as otherwise expressly provided in this Agreement, no other license or right shall be deemed granted or implied with respect to Company IP.  Except as otherwise expressly allowed in this Agreement, Customer shall not (i) use, distribute, sell, sublicense, or disclose any of Company IP or the Data to any other person or entity without written authorization of Company; or (ii) reproduce, modify, translate, prepare derivatives of, reverse assemble, reverse compile, or otherwise reverse engineer Company IP or the Data or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, metadata, or algorithms relevant to the Services or any software, documentation, or data related to the Services (“Software”); or (iii) resell, redistribute, or otherwise transfer or make any of Company IP or Data available to any other person or organization (including Customer’s present and future parents, subsidiaries, affiliates or unlicensed business units or any unauthorized representative within Customer), directly or indirectly, for any use, including by loan, rental, service bureau, external time sharing, or similar arrangement, or for the benefit of any third party; or (iv) remove any proprietary notices or labels.  Company and its licensors retain all rights not so granted.

(d)  Modifications By Company.  Company reserves the right to continually evolve and update the Platform, Services, Data, and Software with or without notice, and to discontinue the Platform and Services on thirty (30) days’ notice to Customer.

(e) Use of Trademarks. Neither party may use the other party’s trademarks, service marks, trade names or logos (collectively, “Marks”), without the other party’s prior written approval. Each party acknowledges that any use by it of the other party’s Marks will not create in such party, nor will such party represent it has, any right, title, or interest in or to other party’s Marks other than the limited rights granted pursuant to such written approval.  All use of the other party’s Marks by a party hereunder and all goodwill associated with such use shall inure to the exclusive benefit of the other party.

 

3. CUSTOMER RIGHTS. Customer exclusively owns and retains all right, title, and interest in and to (i) its technology, trademarks, and websites and all other Intellectual Property Rights in materials that are developed and owned by Customer prior to the Effective Date of this Agreement; (ii) any and all Works that Customer develops independently of any collaboration from Company, that are not derived from or that do not directly relate to the Services, Software, Data, or Pre-Existing Materials, and that relate to Customer’s properties or data; (iii) any and all data obtained directly from Customer relating to Customer’s business and employees that use the Services, or as otherwise provided by Customer; (iv) any and all data obtained directly from Customer other than relating to Customer’s business and employees that use the Services, and (v) any and all content of Customer (Sections 3(iii), 3(iv), and 3(v), collectively, “Customer Data” and together with Sections 3(i) and 3(ii), collectively, “Customer Materials”). Customer exclusively owns and retains all Intellectual Property Rights, title, and interest in and to each of the Customer Materials.  Customer grants to Company a non-exclusive, perpetual, irrevocable fully paid up license to (A) use, reproduce, distribute, transform, and prepare derivatives of the Customer Materials for purposes of performing the Services and creating Data, and (B) to collect, analyze, reformat, distribute, and prepare derivatives of Customer Data, including compiling and structuring such Customer Data together with data from several other entities as long as Company does not disclose Customer’s identity or the identity of persons associated with Customer, in accordance with the Data Processing Agreement entered into between the Parties.

 

(a)    As used herein, the term “Confidential Information” shall mean all information disclosed by a party hereunder (“Disclosing Party”) to the other party, whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, and specifically including all Data, and Customer Data, but excluding information as defined in Section 4(c).  For purposes of clarification, should any of the Section 4(c) information relate to, link to, or reference Confidential Information, such relationship or linking to the Confidential Information shall not affect the confidential treatment required for such Confidential Information. The parties acknowledge and agree that the Platform, System, Software, and the Data are Confidential Information of the Company.

(b)  A party receiving Confidential Information (“Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the Disclosing Party or for any use other than as necessary for the performance of the Receiving Party’s obligations under this Agreement. Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information of the Disclosing Party, shall be responsible for any breach of this Agreement by its employees and/or agents and by any other persons to whom Receiving Party has disclosed the Confidential Information of Disclosing Party, and shall notify Disclosing Party immediately and cooperate with Disclosing Party upon a discovery of any loss or compromise of the Confidential Information of Disclosing Party.  Customer shall maintain the confidentiality of the Data in accordance with similar confidentiality policies as Customer uses for its own highly confidential business information, but not less than commercially reasonable efforts.

(c)     The term Confidential Information does not include information which: (i) has been or becomes publicly available without breach of an agreement regarding its confidentiality; (ii) Receiving Party properly possesses prior to disclosure hereunder without an obligation of confidentiality; (iii) is lawfully received by Receiving Party from a third-party having rights therein without restriction; or (iv) is independently developed by Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information.

(d)    Notwithstanding the above, if Receiving Party is requested by a court or other governmental body with valid jurisdiction, or by a third party pursuant to a judicial or administrative proceeding, to disclose any of Disclosing Party’s Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action, and will assist Disclosing Party in such activities.  Receiving Party shall only disclose the part of Disclosing Party’s Confidential Information as is required to comply with any law, rule, or regulation, or in connection with a judicial or administrative proceeding to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment therefor.

(e)    Receiving Party acknowledges that Disclosing Party’s Confidential Information is the exclusive property of and belongs solely to Disclosing Party and shall not claim otherwise for any purpose.

(f)     Upon request from the Disclosing Party, the Receiving Party (i) will promptly return all written Confidential Information furnished to it, (ii) will destroy and permanently delete all documents, memoranda, notes and other records (regardless of form and including all copies thereof) that reflect, or were prepared on the basis of, the Confidential Information and will certify such destruction in a certificate signed by an officer who has personally supervised such destruction, and (iii) will not retain any copies, extracts, or other reproductions in whole or in part.  Notwithstanding the foregoing, Company may retain Customer Data in perpetuity, provided that Company maintains the confidentiality of such Customer Data.

(g)    Each Receiving Party acknowledges and agrees that its confidentiality obligations are of a unique character, that any breach or threatened breach of Section 4(b) will cause irreparable material injury to the Disclosing Party, that money damages would not be a sufficient remedy for any breach of Section 4(b) and that, in the event of any breach or threatened breach, in addition to all other applicable rights and remedies hereunder or at law, the Disclosing Party shall be entitled to specific performance and equitable relief (including without limitation a temporary restraining order and injunctive relief), without being required to prove damages or furnish any bond or other security.

 

5. TERM AND TERMINATION.

(a)  Term. This Agreement shall commence and remain in effect for the period as set forth on the Order Form.

(b) Termination for Cause. Either party may terminate this Agreement and/or any Schedule upon written notice of termination if the other party: (1) defaults in the performance of or breaches any material requirement or obligation created by this Agreement, which default or breach is not cured within thirty (30) days following the defaulting or breaching party’s receipt of written notice of default; (2) ceases doing business or paying its debts in the normal course; (3) is the subject of any state or federal proceeding (whether voluntary or involuntary) relating to its bankruptcy, insolvency or liquidation that is not dismissed within one hundred twenty (120) days; or (4) makes an assignment for the benefit of creditors or a receiver is appointed for a substantial part of the other party’s assets.  If Company terminates this Agreement for cause, as set forth above, then all Schedules to this Agreement shall also immediately terminate.  Payment obligations of accrued amounts for Services rendered and Data and any claims relating to this Agreement shall survive any termination of a Schedule or this Agreement.

(c)  Effects of Termination; Survival.  Upon termination of this Agreement, all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement. Those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue, payment and non-solicitation.

(d)  Status of Data Upon Termination.  Upon termination of this Agreement, Company shall have the right to delete all Customer Data within ninety (90) days from the date of termination.  Customer shall have the right, prior to the end of such ninety (90) day period to request a one-time download of all Customer Data to a location of Customer’s choice in a format to be agreed to by the parties.  Should Customer not request a download of the Customer Data, Company shall have the right, without penalty or liability, to delete the Customer Data at the conclusion of such ninety (90) day period.  Should Customer wish for Company to retain the Customer Data for longer than ninety (90) days, then Customer shall notify Company in writing and shall pay, Company, in advance, for the storage of the Customer Data pursuant to the then current pricing as indicated by Company in its response to such request.

 

6. FEES; PAYMENT TERMS.

(a)    Fees and Late Payments. Unless otherwise stated in a Schedule, Customer shall pay all invoices within thirty (30) days of receipt of such invoice.  Company may deliver invoices electronically. Customer shall be deemed in default if any invoiced amounts that are not disputed in good faith remain unpaid thirty (30) days after receipt of invoice.  Customer must give Company prompt notice of any good faith dispute regarding an invoice.  Except with respect to amounts disputed in good faith for which notice has been provided by Customer, payments not received by Company within thirty (30) days from receipt of invoice shall be subject to interest at the rate of one percent (1%) per month. Customer’s obligations for the payment of the Fees shall survive the expiration or any termination of this Agreement. Except with respect to such disputed amounts, Company shall be entitled to suspend Customer’s use of the Services and software application if Customer fails to pay any amount when due hereunder where such failure continues for thirty (30) days following written notice from Company thereof. All invoices shall be paid in U.S. dollars by check or wire transfer.

(b)    Customer agrees to pay any attorneys’ fees and/or collection costs incurred by Company in collecting any past due amounts from Customer.

(c)     Customer shall pay all taxes, tariffs, and transportation costs relating to, or incurred under, this Agreement (including any sales, use, excise or value added taxes), exclusive of taxes based on or measured by Company’s net income, unless Customer is exempt from the payment of such taxes and provides Company with acceptable evidence of such exemption.

 

7. REPRESENTATIONS AND WARRANTIES.

(a)  Each party warrants and represents at all times that it has the right, power, and authority to enter into this Agreement and each Schedule, and it is duly organized, validly existing, and in good standing under the laws of the state or country of its incorporation or formation.

(b)  Company represents that, to the best of its knowledge, the Services and Data do not infringe on any valid and enforceable Intellectual Property Right of any third party.

(c)  Customer represents that the Customer Materials do not infringe on, violate, or misappropriate any valid and enforceable Intellectual Property Rights of any third party.

(d) Customer represents that with respect to any third party materials that are delivered to Company (“Third Party Materials”), Customer has obtained the right to use the Third Party Materials, and that Company’s use of such Third Party Materials will not infringe or violate the Intellectual Property Rights of any third party.

(e)  Company makes no representations or warranties as to the accuracy of the Data; provided that should Customer identify any inaccuracies with respect to the Data, the Company will use reasonable efforts to correct such inaccurate Data.

 

8. INDEMNIFICATION

(a) Each party will indemnify, defend and hold harmless the other party and that party’s officers, directors, employees, successors and assigns (the “Indemnified Parties”) from and against any third party claims and resulting losses, liabilities, damages, fines, penalties, settlements, liens, judgments, costs and expenses, including reasonable attorney fees, and interest (including taxes) resulting from, arising out of, or relating to: (i) any breach by that party of any of its obligations or representations hereunder, including, without limitations, confidentiality, Section 2(c), and payment of taxes, (ii) security breach; (iii) violation of law; or (iv) injury or death, or damage to any property caused by or arising from the negligent acts or omissions of that party.  Company shall have no indemnification obligation to Customer with regard to any claim to the extent that the claim or allegation is based on: (1) a modification made by an entity other than Company or its designee; (2) a violation by Customer of this Agreement; (3) a combination of the Software with any third party materials, components or software, or (4) the inclusion of any Customer Materials or Third Party Materials in or with any Company IP.  Indemnification hereunder shall be subject to the Indemnified Party promptly giving the indemnifying party notice of a claim for indemnification and providing assistance as reasonably requested by the indemnifying party.

(b)  Remedies for Infringement.  Should the Services or any of the Software become or, in Company’s opinion, be likely to become the subject of any infringement claim, Company shall have the right, at its sole discretion and at its expense, to either procure for Customer the right to continue receiving the Services, replace or modify the Services so it becomes non-infringing, or remove the questionable Services. This Section states Company’s entire liability, and Customer’s sole and exclusive remedy for Intellectual Property Rights claims relating to or arising out of any Services or Software.

(c)  Indemnification Procedures.  Upon commencement of a third-party claim against any of the Indemnified Parties, to provide indemnification, the Indemnifying Party shall notify the Indemnified Party whether it chooses to take control of the defense and investigation of such claim.  Upon such notification the Indemnifying Party shall, at its sole cost and expense, engage attorneys reasonably acceptable to the Indemnified Party to handle and defend the same. The Indemnified Party will cooperate, at the cost of and as reasonably requested by the Indemnifying Party; provided, however, that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise. No settlement involving a remedy other than monetary payment shall be entered into without the consent of the Indemnified Party.  If the Indemnifying Party chooses not to assume the defense of the claim, the Indemnified Party will have the right to defend the claim as it deems reasonably appropriate, at the Indemnifying Party’s cost and expense.

 

9. WARRANTY DISCLAIMERS AND LIABILITY LIMITATIONS.

(a)  Disclaimer of Warranty. THE DATA IS PROVIDED “AS IS” AND “WITH ALL FAULTS.”  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS OF THE SERVICES, THE DATA, OR THE COMPANY IP FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.  COMPANY MAKES NO REPRESENTATIONS REGARDING THE BENEFITS TO CUSTOMER FROM THE PLATFORM OR SERVICES OR DATA, OR THAT THE PLATFORM OR SERVICES OR DATA WILL BE ERROR-FREE, ALWAYS AVAILABLE OR OPERATE WITHOUT LOSS OR CORRUPTION OF DATA OR TECHNICAL MALFUNCTION.  COMPANY SHALL NOT BE RESPONSIBLE TO CUSTOMER RELATING TO ANY USE OF THE DATA OR ANY THIRD PARTY SERVICES BY CUSTOMER.  COMPANY SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY TECHNICAL MALFUNCTION, TELECOMMUNICATION, OR INTERNET OUTAGES OR PROBLEMS, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION BEYOND COMPANY’S CONTROL. COMPANY IS NOT LIABLE FOR ANY OUTAGES OR DOWNTIME OF THE PLATFORM.

(b)  Limitation of Liability. EXCEPT WITH RESPECT TO LIABILITIES ARISING UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF CONFIDENTIALITY, SECTION 2(C), GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, VIOLATION OF APPLICABLE LAW (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH DAMAGES ARE FORESEEABLE OR SUCH PARTY IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL SUM PAYABLE BY CUSTOMER TO COMPANY DURING THE SIX (6) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM WAS MADE, PROVIDED HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL A PARTY’S LIABILITY UNDER SECTION 8(A)(II) EXCEED $500,000. 

 

10. DATA PRIVACY/SECURITY.

(a) Data Security/Privacy. To the extent that the Services may require the collection, disclosure and use of personally identifiable information of any person (“Personal Information“) and that Company will be privy to any Personal Information pursuant to this Agreement, then without limiting the generality of Section 4, Company agrees to maintain the confidentiality of such Personal Information in a manner that complies with applicable privacy laws and in accordance with the Data Processing Agreement entered into between the Parties.  The privacy policy and terms of use applicable to End-Users who use or access Company’s Site are set forth on Company’s website (Company’s Privacy Notice and Terms of Use.

(b) Breaches of Security. Each party will promptly notify the other of any breach of confidentiality, privacy, or security or unauthorized access to such party’s website, and systems or databases that contain Company Data, Customer Data and/or the other party’s Confidential Information. At no additional cost, Company will fully cooperate with Customer in investigating the breach and providing Customer with a root cause assessment and future incident mitigation plan with regard to any breach of security or unauthorized access affecting Customer Confidential Information. On notice of any actual or suspected breach of systems or databases that contain the other party’s data and/or Confidential Information, a party will (i) use its best efforts to immediately terminate the security breach or suspicious activity and (ii) promptly institute appropriate controls to maintain and preserve all electronic evidence relating to the breach in accordance with industry best practices. In the event any breach of security or confidentiality by a party or its agents or subcontractors requires the other party (the “Data Owner”) to provide notification to an individual under any applicable law, the Data Owner will have sole control over the timing, content, and method of notification and the breaching party will promptly reimburse the Data Owner for all costs and expenses incurred as a result of the breach, including but not limited to, notice, print and mailing costs, and the costs of obtaining credit monitoring services and identity theft insurance for the individuals whose Personal Information was or may have been compromised.

 

• Interpretation. Capitalized terms used but not otherwise defined herein have the meanings ascribed to such terms in the Order Form. Any headings are solely for convenience or reference and shall not affect the meaning or construction of this Agreement. All references to a number of days mean calendar days, unless expressly stated otherwise. No documents exchanged or course of dealings by the parties shall modify the terms of this Agreement unless in writing signed by an authorized representative of both parties. The following shall be the order of preference in the event of an inconsistency, ambiguity, contradiction or conflict between the terms of this Agreement, its Schedules, and any amendments to any of the foregoing:  (i) the terms of any amendment to this Agreement, (ii) followed by the terms of this Agreement, unless expressly overridden by a Schedule; and (iii) the terms of the Schedules to this Agreement.
• Governing Law and Venue. This Agreement will be governed by, construed and enforced in accordance with, the laws of the State of New York, without reference to conflict of laws principles. Jurisdiction and venue for all disputes hereunder shall be in New York County, New York and the parties hereby irrevocably consent to such jurisdiction and venue. Any and all claims relating to this Agreement or arising hereunder shall be brought exclusively in the state or federal courts located in New York County, New York.  Any claims must be brought in the initiating party’s individual capacity and not as a plaintiff or member in any class action or other similar proceeding.
• WAIVER OF JURY TRIAL. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES OR DATA PROVIDED HEREUNDER.
• Notices. Notices and other communications required or permitted under this Agreement or any Schedule shall be in writing and deemed duly served on or delivered (1) when delivered by hand, (2) three days after being sent by certified mail, return receipt requested, (3) one day after being sent by recognized overnight courier, or (4) when sent by email, electronically confirmed and followed up immediately by standard United States mail, to an officer of the other party listed in the Order Form.
• Entire Agreement; Severability; Modification. This Agreement, including any Schedules, is the entire agreement of the parties, and supersedes all prior agreements and communications between the parties with respect to the subject matter of this Agreement, and represents the complete integration of the parties’ agreement.  This Agreement shall not be construed against the party that drafted this Agreement, as both parties have had an opportunity to review and negotiate the terms hereof.  If any provision of this Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired.  This Agreement may be modified only by a written agreement executed by an authorized representative (in the case of Company, an “authorized representative” means only the CEO or CFO of Company) of the party against whom the modification is asserted.
• No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, shall confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
• No Waiver. The failure of a party in any one or more instances to exercise any right or privilege arising out of this Agreement shall not preclude it from requiring that the other party fully perform its obligations or preclude it from exercising such a right or privilege at any time.
• Independent Contractors. Company and the Customer shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or be construed as creating a joint venture or partnership between the parties.  Neither party shall make any representations or warranties on behalf of or with respect to the other party, other than as specifically set forth herein.
• Assignment. This Agreement shall not be assigned or transferred in whole or in part by either party without the prior written consent of the other party, provided that either party may assign this Agreement without prior written consent in connection with a sale of all or substantially all of its assets to which this Agreement relates or by way of merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this Section shall be void.  Nothing in this Agreement shall be construed as permitting a trustee or purchaser in bankruptcy to assume this Agreement without the written consent of the other party.  Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
• Force Majeure. Except for the obligation to pay sums due hereunder, neither party shall be responsible for delays or failures in performance of this Agreement resulting from acts beyond its reasonable control.
• Marketing. Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other party.
• Competition. Customer acknowledges and agrees that Company may, without limitation, accept subscriptions for the Services from, and license the right to use the Data to other persons, firms, corporations, or other entities, including entities that compete with Customer (“Customer Competitors“), on any terms Company deems appropriate; provided that Company shall not provide any Customer Data to any Customer Competitors or any other third party in accordance with Section 4 of this Agreement.
• Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed to be an original, all of which, when taken together, shall constitute one and the same instrument.

Attorneys’ Fees.  In the event of any dispute arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.

SCHEDULE 1

SERVICES AND DATA

SERVICES:

1. The Company shall provide access to the Data via an agreed upon method including but not limited to SFTP and API.
2. The Company enqueues and processes updates to the Data upon receipt of event information.
3. The Company will provide agreed upon support to the Customer during regular trading hours for the U.S. stock market, defined as 9:30 a.m. to 4 p.m. Eastern time on weekdays (except stock market holidays).
4. To the extent any new data sources are obtained by the Company and brought online for any customer, such new data sources may be included in the Data.

DATA:

1. The Company will provide the Customer with results on each entity. These results are intended to identify attributes in Customer data that may be indicative of risk.
2. The Company shall provide Data in an agreed upon method including but not limited to Application Program Interface (API), JavaScript Object Notation (JSON), Comma-Separated Values (CSV) file, or similar.

SCHEDULE 2

SERVICE LEVEL TERMS

These Service Level Terms set out the responsibilities of Company with respect to the Services provided by Company under the Master Services Agreement (“Agreement”).

1. DEFINITIONS:

If a term is defined herein, such definition shall control.  If any terms are capitalized herein and no definition is provided, the definition from the Agreement shall control the definition of such term.

1. “Planned Outages” means scheduled service interruptions for maintenance and software upgrades (including new releases and patches) as described in Section 3(B).
2. “Customer Outages” means disruptions caused by Customer’s systems or the failure of third party networks (including the Internet).
3. “Uptime Service Level” means the service level described in Section 3(A).

 

2. SECURITY AND PRIVACY

Company will have security mechanisms installed and operating at all times consistent with industry standards, including, without limitation, current security patches and procedures for monitoring security breaches.

1. Company shall promptly notify Customer of any security breach that it learns of or suspects and that may impact or relate to the Data or Customer system.

 

1. SERVICE AVAILABILITY
2. Uptime. Company shall use commercially reasonable efforts to ensure that Services are available as often as possible and will communicate uptime percentage upon commencement of the updated Service Level Terms Agreement, (the “Uptime Service Level”).

 

1. Planned Outages. Planned Outages shall not normally take place during the normal working hours of Customer. If Company schedules a Planned Outage to take place within normal working hours of Customer, Company will notify Customer at least five (5) days in advance.  If any Planned Outage, taking place at any time, is scheduled to last four (4) hours or more, Company will notify Customer at least five (5) days in advance, and if scheduled to last less than four (4) hours, Company will notify Customer as soon as reasonably possible.  Notice of such interruptions will be provided to the email address provided to Company by Customer in the Schedule.  Company will at all times endeavor to keep any service interruptions to a minimum.

 

1. Uptime Failure. The Services will be considered as unavailable:

 

(i) during periods of Priority 1 or Priority 2 faults in accordance with Section 4(D); and

 

(ii) during periods of Planned Outages that occur during the normal working hours of Customer, or periods of any Planned Outages that occur with less notice than required by Section 3(B).

 

1. Monitoring. Company shall provide Customer, twenty-four (24) hours a day and seven (7) days a week, monitoring of the Services to detect and correct abnormalities.  This includes environmental monitoring, network monitoring, load-balancing monitoring, web server and database monitoring, firewall monitoring and intrusion detection.

 

 

4. CUSTOMER SERVICE.

 

Company will use best efforts and the guidelines below (Sections 4A-4E) to triage and resolve issues as soon as reasonably possible and agreed upon. Throughout the onboarding process, you’ll be allocated two dedicated Company representatives: a relationship manager and an engineering resource. This team will collaborate with your team to ensure smooth system integration, rule configuration, permission set-up, training delivery, and anything else you may reasonably need to onboard.

 

1. Once onboarded, Company provides support through a dedicated Slack channel, email, or Customer portal, accessible during business hours (7AM EST – 10PM EST) except when major stock Markets (i.e., NYSE) are closed and on Federal holidays. Support is available outside of these hours based on commercially reasonable efforts, and Sandbar guarantees responsiveness during any extenuating circumstances.

 

1. Customer will report all service, uptime, or availability issues to Company’s support service team by email, Customer portal, or shared Slack channel. Company will log all issues and requests and shall provide Customer with a status report upon request.

 

1. Company will aim to have resources in place to troubleshoot and resolve issues, and will communicate updates to Customer within the time periods specified below, according to priority.

 

1. Company will determine the priority of any fault in accordance with the following table.

 

Priority	Description	Target Resolution SLA
Priority 1 – Blocker	An issue that severely impacts the ability of a user to use or access the software application, or presents a particularly high risk to data security or privacy.	Issue is triaged immediately, target resolved time is within twenty-four (24) hours if possible, and if necessary, deployed to production as an emergency release.
Priority 2 – Critical	An issue that impacts a critical workflow within the software application, or presents a risk to data security or privacy.	Issue is triaged within twenty-four (24) hours, target resolution within forty-eight (48) hours if possible, and if necessary may be deployed to production as an emergency release.
Priority 3 – Major	An issue that impacts a workflow in the software application that may create an inconvenience for a user.	Issue is triaged within 1 week, prioritized, against other feature work, and target resolution within 1 month.
Priority 4 – Minor	An issue for which there is a work-around or one for which there is a minor inconvenience for a user.	Issue is triaged within 2 weeks, and prioritized against other feature work. Resolution times are not guaranteed.

 

1. If required, system reinstallation and/or data recovery will be expedited with a goal of completion within forty-eight (48) hours.