Effective Date: February 27, 2024
These Terms & Conditions are between Gadget Software, Inc.,(“we/us/our”) and the customer identified on the applicable quote or order (“you/your/yours”) for use of and access to the Gadget Software platform and data (“Services”). These terms govern your subscription to and ongoing use of the Services and incorporate an applicable quotation or order between you and us or a subscription that you order on our website, which together form the Data Subscription Agreement between us (the “Agreement”).
SERVICES DESCRIPTION. We provide our TopicLake™ technology, an artificial intelligence-driven platform that organizes structured and unstructured data at a topic level that you or your authorized end users may access as a Data as a Service (“DaaS”) subscription.
Services. We shall provide the Services to you during a Subscription Period which may be monthly or may consist of a specified number of consecutive calendar months. Certain subscriptions may be renewable at the end of a calendar year.
Customer Access. During a Subscription Period you have a non-transferable, non-exclusive right to access and use the Services as described in this Agreement. You may authorize selected end-users to access your subscription for the duration of your Agreement.
Prohibited uses. You agree not to: (i) provide the Services or any derivative services to any third party, (ii) publish links to websites you do not control without prior written permission, or (iii) publish any personal or confidential information of any person or entity without obtaining necessary consents. We may terminate your access to the Services if we reasonably believe that you have violated the prohibited uses or used the Services to conduct or support any illegal or unauthorized activity. You will not use the Services other than as described in this Agreement, attempt (or permit anyone else) to disassemble, reverse engineer, decompile or create derivative works from any of the Services or sell, sublicense, issue, copy or rent the Services.
Ownership. You own all rights to your proprietary content that you provide and that we transform into topic data records, topic insights, and/or Q&A responses. You are solely responsible for your provided content and any consequences or results of its transmission or publication and you agree to diligently protect against any accidental or otherwise publishing of any private content that is not intended for public availability. You agree that we must access, copy, distribute, store, transmit, reformat, display your content to provide the Services to you. We may aggregate anonymous usage statistics for the purpose of improving our Services, or to provide generalized, non-identifiable analytics on the use or attributes of content types and may provide you with additional Service analytics. We may also create generalized, non-identifiable examples of your types of content to demonstrate our transformation capabilities. Your rights to access and use the Services do not include ownership rights to any of the Services. Neither you nor we claim any ownership rights to any data published into the public domain.
We own all rights to the Services, any modifications or improvements, and all related intellectual property rights. We also own the metrics and analytics data related to your content or your end-users’ use of the Services. We may use any suggestions, ideas, enhancement requests, feedback, recommendations, or other non-proprietary information (“Feedback”) to improve the Services without charge, royalties, or other obligation to you, and our use of Feedback does not give you or your end-users property rights to the Services. To the extent that our transformative formatting and reorganization of your content may be considered our copyrighted material (excluding your proprietary content), you and we agree to cross-license your rights to your content and your Marks incorporated into QR codes (where applicable) that we may provide to access the Services and our rights to our transformations to each other to provide the Services for the duration of this Agreement. Upon termination of this Agreement the cross-license shall expire and we can no longer use your content and you can longer use our transformation or Services. To the extent that our transformative topical formatting and reorganization of public domain content may be considered our copyrighted material your right to access that material continues for duration of this Agreement.
Marks. “Marks” means registered or unregistered trademarks, service marks, trade names, logos, service names, or other proprietary markings. Unless otherwise agreed, (i) you agree not to remove or replace our Marks from the screens on which the Services are displayed, viewed, or accessed without our written consent, and (ii) you agree to reproduce all our Marks on any copy or portion of any associated materials. We acknowledge that you alone shall own all rights, title, and interest in and to your Marks and this Agreement does not give us any ownership rights to your Marks.
Payment Terms. You will pay for the Services as provided in the payment terms and fee schedule in your order for the Services or on our website. All fees are nonrefundable unless you terminate this Agreement for cause. We may suspend the Services or other performance if you fail to pay any undisputed amount owed under this Agreement within ten (10) days after our written notice to you. The Subscription Fee does not include any taxes and you are responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies for the use of the Services (other than taxes payable by us based on our income).
“Confidential Information” means all information or data, whether or not in tangible form, disclosed or otherwise made available in connection with this Agreement by either party (the “Discloser”) to the other party (the “Recipient”), that the Discloser has either marked as confidential or proprietary, has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the Recipient, or that would reasonably be expected to be confidential under the circumstances. Our Confidential Information shall include all proprietary information relating to the Services, including our software and design development and the terms of this Agreement including pricing information. Your Confidential Information shall include your content and proprietary business practices, such as your limitations on end-users’ access to Services. However, Confidential Information does not include information that (i) is already known to Recipient at the time of disclosure, (ii) is or becomes publicly known through no wrongful act or failure of the Recipient, or (iii) is independently developed by Recipient without using Discloser’s Confidential Information, or (iv) is received from a third party without breaching any confidentiality obligation.
A Recipient shall use reasonable measures to protect the confidentiality of and avoid disclosure and unauthorized use or copying of the Discloser’s Confidential Information. Except where specifically allowed by this Agreement, a Recipient may only disclose the Discloser’s Confidential Information to (i) Recipient’s employees, agents, and legal or financial advisors with a need to know in the course of their duties and (ii) as required by law or court order, provided the Recipient promptly notifies the Discloser and cooperates in any effort by the Discloser to seek a protective order and/or obtain confidential treatment. Any disclosure by a Recipient to a third party must be protected by confidentiality obligations equivalent to these. If you participate in a group event that we have sponsored, these Confidentiality terms shall apply to any Confidential Information disclosed by any group participant, and we may provide a copy of this Confidentiality section to any Discloser seeking to enforce its provisions. We may disclose the terms of this Agreement to existing and potential investors, lenders, and acquirers and their legal or financial advisors.
Upon termination of this Agreement, each party shall promptly return or destroy any Confidential Information of the other party in its possession or control. If requested by a Discloser, destruction of that Discloser’s Confidential Information shall be certified in writing by an authorized representative of the Recipient. This obligation to return or destroy Confidential Information or copies does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Recipient’s information systems procedures, provided that Recipient shall make no further use of Confidential Information contained in those copies.
An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret in a complaint or other document filed in a lawsuit or other proceeding if the filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose a trade secret to the individual’s attorney and may use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except as required by a court order.
Compliance with Privacy Laws. Each party is responsible for complying with all applicable Privacy and Data Protection Requirements with respect to our Services and your end-users. Each party will only collect Personal Information of users in accordance with those applicable Privacy and Data Protection Requirements.
Technical Safeguards. We will maintain appropriate organizational and technical measures for protection of the security (including protection against unauthorized or unlawful processing of data, and against unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Personal Information), confidentiality, and integrity of Personal Information.
Personal Information (also known as “Personally Identifiably Information” or “PII”) means any information that identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in our possession or control through access to the Services.
Privacy and Data Protection Requirements means all applicable federal, state, and foreign laws and regulations relating to the processing, protection, or privacy of the Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction, including Privacy and Data Protection Requirements include, without limitation, the California Consumer Privacy Act (CCPA) and other applicable federal and state privacy laws.
Privacy Policy. Your and your consumers' use of the Services is covered by our Privacy Policy, the current version of which is available at https://www.gadgetsoftware.com/privacy-policy/. You agree to notify us promptly upon discovery of any unauthorized or otherwise inappropriate use of your DaaS accounts. We are not responsible for any loss or damage to you or any associated party which occurs due to unauthorized access and/or use of any of your administrator-enabled accounts.
Our Warranties. We warrant that we will provide the Services (i) in a professional and workmanlike manner, (ii) in accordance with the specifications and functionality described in the applicable product specifications (which we may revise from time to time to keep it current), and (iii) all applicable laws, rules, and regulations. We also warrant that at the time of delivery, the Services are free of material defects and free of any and all time locks, viruses, trojans, worms, spyware, adware, other malware and malicious code, copy protect mechanisms, back doors, or any disclosed or undisclosed features designed to disable the Services, render them incapable of operation (other than for compliance with the Services terms or Subscription Periods) or permit unauthorized access to your networks, systems, programs or Confidential Information. Subject to the notice and cure period set forth in the Termination for Cause Section below, if you terminate this Agreement as a result of our breach of our warranties in this Our Warranties section, you shall be entitled to a refund of a pro-rated portion prepaid fees for any Services we have not delivered at the time of termination.
Your Warranties. You warrant that you have (i) the necessary authority, consent, or permission to provide the necessary content, including any copyrighted or copyrightable content to permit us to provide the Services to you and your consumers (ii) that you have complied with all applicable laws, rules, and regulations including any necessary consent for PII and your content related to the Services, and (iii) you have not relied on the availability of any future version or features of the Services when ordering the Services.
Reciprocal Warranties. Each party warrants that it has the right to enter into and to perform the obligations of this Agreement and that the person executing this Agreement on behalf of that party is authorized to do so.
Warranty Exclusions. OTHER THAN ANY WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, WE PROVIDE THE SERVICES “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND WE DISCLAIM ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, WE MAKE NO WARRANTY THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES.
We will be liable to you, your officers and employees for any third-party claim, demand, or lawsuit (‘Claim”) arising from or related to our intentional or negligent acts or breaches of our obligations under this Agreement.
You will be liable to us, our officers and employees for any third-party Claim arising from or related to your intentional or negligent acts or breaches of your obligations under this Agreement.
We will defend you in any action based on any third party’s Claim that the Services, when used in accordance with this Agreement, infringes any U.S. copyright, patent or trademark or misappropriates a trade secret (as defined under applicable law), and we will pay all reasonable costs, expenses and damages finally awarded against you from the Claim. If we are notified of a Claim for infringement for your content, we may restrict access to or delete that content to made available by you.
You will defend us in any action based on any third party’s Claim that the content you have provided in connection with the Services, when used in accordance with this Agreement, infringes a copyright, patent or trademark or misappropriates a trade secret (as defined under applicable law), and you will pay all reasonable costs, expenses and damages finally awarded against us from the Claim.
For a party (the ”defending party”) to be obligated to defend the other party as described above, the party against whom the Claim is made must (i) give the defending party prompt written notice of any Claim, (ii) fully cooperate with the defending party in the defense and/or settlement of the Claim, (iii) agree that the defending party will have full control of the defense of any Claim and of any settlement or compromise (but the defending party may not settle any Claim that requires the other party to admit any liability or make any payment without that other party’s prior written permission), and (iv) each party must have complied with the other party’s notice to cease using any Services or remove any content that the notifying party reasonably believes may be considered to infringe on a third party’s intellectual property rights.
If we believe that your use of the Services has become, or is likely to become, the subject of any Claim of infringement, we may, at our option and expense, (i) obtain for you the right to continue using the Services as set forth in this Agreement; (ii) replace or modify the Services to avoid the infringement Claims while maintaining at least equivalent usefulness and performance; or (iii) if options (i) or (ii) are not reasonably practicable, terminate the Services and refund to you a prorated portion of any prepaid Subscription Fees for any unused portion of the Subscription Period. We shall have no liability or obligation to defend you to the extent that any infringement Claim against you is caused by (a) our modification of the Services or content to comply with your data or specifications, (b) your (or any other party’s) modification of the Services without our prior written consent, or (c) your use of the Services in combination with any other equipment or software where that combination causes the infringement.
Where each party is partly responsible for the liability in a Claim, any liability, loss, cost, or expense shall be proportionally shared between the parties based on their relative degree of responsibility.
Anywhere in this Agreement where a party has an obligation to or agrees to defend the other party, that other party may retain its own counsel at its own expense to monitor or assist in the defense, but that expense shall not be included in the defending party’s liability obligation.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR: (I) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE, (II) ANY LOSS OR CORRUPTION OF DATA OR (III) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES), ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT THE PARTY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF THAT LOSS OR DAMAGE. EXCEPT FOR EACH PARTY’S INFRINGEMENT RESPONSIBILITIES SPECIFICALLY SET FORTH IN THIS AGREEMENT, EACH PARTY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIMS, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO US BY YOU UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. NO PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE ANY RIGHT TO ENFORCE ANY TERM OF THIS AGREEMENT.
NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY’S LIABILITY TO THE OTHER FOR (I FRAUD, (II) DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY’S NEGLIGENCE, OR (III) ANY LIABILITY TO THE EXTENT THAT IT MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
Term and Renewal. Unless earlier terminated as described below, this Agreement shall commence on the date of the quote acceptance or order for the specified Services and continue for the Subscription Period specified on that quote or order. After the last Subscription Period specified on the order expires, your subscription to the Services shall renew automatically for the same Subscription Period as the current order at then-current prices. Either party may elect not to renew the Services by providing written notice to the other party sixty (60) days prior to the end of the current Subscription Period.
Termination for Cause. A party may terminate this Agreement, without incurring liability, obligation, or penalty of any kind, if the other party commits any material breach of this Agreement and fails to cure that breach within thirty (30) days after written notice is delivered, except for undisputed payments, where the cure period is ten (10) days. The parties may agree to extend the 30-day cure period by up to sixty (60) additional days if the breaching party is diligently attempting to cure the breach).
Obligations on Termination. Upon termination or expiration of this Agreement (i) your rights and access to the Services and all apps terminate and (ii) our obligations to provide the Services, and (iii) any cross-license to intellectual property or reciprocal rights to display each other’s Marks shall immediately terminate. Where we have provided a QR code to access the Services, at your request and for a mutually agreed one-time fee we will irrevocably license or assign the QR code to you. Termination of this Agreement for any reason (other than our breach) shall not relieve you from paying all fees accruing prior to termination and shall not result in any refund to you of any fees previously paid.
Excusable Delays. In no event shall a party be liable to the other for any delay or failure to perform its obligations of this Agreement due to causes beyond its reasonable control, including acts of a government, severe weather conditions, or pandemics. Failure to make payment under this Agreement shall not be considered an excusable delay.
Assignment. Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party (which will not be unreasonably withheld), except that either party may assign this Agreement, without the other party’s prior consent, to a to any successor in interest by way of merger or the acquisition of substantially all of that party’s assets. However, your assignment to a successor will be permitted only if (i) you have no payments due to us at the time, (ii) your assignee is not our direct competitor, and (iii) your assignee will be bound by our then-current standard terms of use applicable to the Services transferred. Any attempted assignment or transfer any of the rights, duties or obligations of this Agreement that violates this section shall be void.
Independent Contractors. Each party at all times is acting as an independent contractor under this Agreement and not as an agent, employee, joint venturer, or partner of the other.
Amendment. This Agreement may not be amended or modified except in writing and signed by an authorized representative of each party, except that we may revise the Agreement from time to time when required by changes to applicable law or to reflect additions or modifications to the Services made available to all customers.
Waiver. No provision, part, or remedy of this Agreement may be waived except in writing signed by an authorized representative of the waiving party. Failure or delay by either party to enforce any provision of this Agreement will not be considered a waiver of future enforcement of that or any other provision.
Severability. If any provision of this Agreement is illegal or unenforceable in any jurisdiction, that provision shall remain effective with respect to any jurisdiction in which it is legal and enforceable, and the remainder of this Agreement will remain valid and enforceable anywhere.
Governing Law, Jurisdiction. All disputes, claims or controversies arising out or related to this Agreement shall be governed by, construed, and enforced in accordance with, the laws of the State of Delaware without regard to its conflicts of law rules and by applicable federal laws, including without limitation, the Defend Trade Secrets Act. Each party consents to the sole and exclusive jurisdiction of the state and federal courts of Delaware as the venue any litigation among the parties arising out of or relating to this Agreement. However, either party may seek injunctive or other equitable relief to protect its Confidential Information, license rights and intellectual property rights from any court of competent jurisdiction that may provide direct relief, regardless of the Delaware jurisdiction requirement. Each party waives any trial by jury.
Notices. All notices required by or related to this Agreement will be in writing and will be considered to be given when: (i) delivered personally; (ii) sent by other electronic means with confirmation of receipt; (iii) three days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the quote or order or to other notice addresses designated in writing by a party.
Entire Agreement. This Agreement is the entire agreement between the parties, supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the Services and related terms. This Agreement prevails over any additional or conflicting terms or conditions in your purchase orders, online procurement terms, or other non-negotiated forms relating to the Services or this Agreement, even if dated later than the effective date of this Agreement.
Publicity. Neither party will issue any press release, advertising, nor other public materials that use the other party’s Marks or refer to the other party, the existence of this Agreement, the Services provided without the other party's prior written consent. However, we may identify you on our client list and may use a mutually agreed general description of the nature of the relationship in promotional materials, presentations, and proposals to current and prospective clients. However, either party may identify the other party or disclose the existence of this Agreement to its attorneys, auditors and in connection with regulatory filings.
Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute the same Agreement. instrument. Scanned or facsimile transmissions of signatures or electronic signatures or acceptance shall be considered to create a binding Agreement in the same way as original signatures.Reseller Exclusions. Any terms in this agreement regarding payments or refunds apply only to transactions directly between you and us, and do not apply to transactions where you have subscribed to and paid for the Services through one of our resellers.
Survival. Provisions anywhere in this Agreement regarding payment, termination, ownership, intellectual property rights, warranties, liability, limitations of liability, governing law, dispute resolution, confidentiality, severability, and waivers, will survive the expiration or termination of this Agreement.
