These Nautilus Platform Terms and Conditions, as amended from time to time (the “Terms and Conditions”), are entered into by and between Nautilus Labs Inc., a Delaware corporation (“Nautilus”) and the customer identified in an order form for Nautilus products and services (each such order form, an “Order Form”, and such customer, the “Customer”). These Terms and Conditions hereby incorporate by reference, and Customer represents that it has read, understood and agrees to be bound by, the Nautilus Acceptable Use Policy, that can be found here (the “AUP”), the Data Processing Addendum (the “DPA”), and, to the extent Customer purchases any hardware or equipment from Nautilus, the Nautilus Purchase Terms, that can be found here, each as may be amended, altered, modified, replaced or suspended from time to time by Nautilus, in whole or in part, and at Nautilus’s sole discretion. Unless otherwise expressly defined in these Terms and Conditions, the capitalized terms used herein have the meaning assigned to them in the Definitions that can be found here. Each Order Form, any and all SOWs attached thereto (together, the “Order Documents”), these Terms and Conditions, the Definitions, the AUP, the DPA, and the Nautilus Purchase Terms (to the extent applicable) make up the entire agreement between the parties with regard to the software, hardware, equipment, and/or services described in such Order Form (collectively, the “Agreement”, and such software, hardware, equipment, and/or services, including, without limitation, any applicable professional services, the “Services”).  The Agreement will be effective as of the effective date set forth in the applicable Order Form (the “Effective Date”).

 

 

NOW THEREFORE, in consideration of the mutual covenants and agreements set forth in the Agreement, Nautilus and Customer hereby agree as follows:

 

 

1.     Services. Subject to the terms and conditions of this Agreement, Nautilus will use commercially reasonable efforts to provide to Customer the Services. In the event that there is a conflict between this Agreement and an Order Document, this Agreement will control, unless otherwise expressly provided in the Order Document. In addition, Nautilus reserves the right, in its sole discretion, to make any changes or updates to the Services that it deems necessary or useful to (a) maintain or enhance the quality, delivery, cost efficiency or performance of the Services or (b) comply with any Laws. All updates, releases, or updated versions provided by Nautilus during the Term (as defined below) are deemed part of the Services and are subject to all applicable Terms and Conditions. Such updates, releases, and updated versions are deemed “Services.” Customer will install all such updates, releases, and updated versions immediately after receipt. If Nautilus introduces any new services or products that Nautilus markets as a distinct service or product to the Services, Nautilus may make such new service or product available to Customer at an additional cost under a separate Order Form.

 

 

2.     Customer Responsibilities. Customer will be exclusively responsible for and is required to (a) obtain and maintain the Customer Information Technology Infrastructure, (b) employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to ensure that the Services are not being used to collect any data or information prohibited by any Law and (c) provide all cooperation and assistance as Nautilus may reasonably request to enable it to exercise its rights and perform its obligations under this Agreement.

 

 

3.     Fees; Payment Terms. Customer will pay Nautilus the Fees in accordance with the terms set forth in the Order Form and the terms of these Terms and Conditions. To the extent applicable, if Customer’s use of the Services exceeds the service capacity set forth in an Order Form, Customer will be billed for such usage and agrees to pay any additional fees in the manner provided herein and in the applicable Order Form. Nautilus reserves the right to change the Fees or applicable charges and to institute new charges and Fees for the then-following Renewal Term (as defined below), upon prior written notice to Customer (which may be sent by email) no less than sixty (60) days prior to the end of the Initial Term (as defined below) or the then-current Renewal Term.  Without limiting any of the foregoing and in addition thereto, Nautilus reserves the right to increase the Fees once every twelve- (12-) month period; provided, however, that the percentage of any such increase will not exceed five percent (5%). If Customer in good faith believes that Nautilus has billed Customer incorrectly, Customer will contact Nautilus no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, and will include a written statement describing such error or problem in reasonable detail. Customer will pay all amounts due, and the parties will negotiate in good faith for the purpose of resolving such error or problem. If Customer is more than thirty (30) days late in paying an invoice, Nautilus will charge interest at the rate of two percent (2%) per month or the highest rate permissible under Law on the unpaid amount, calculated daily and compounded monthly, until the unpaid balance is paid in full.  Customer will be responsible for all taxes associated with Services other than U.S. taxes based on Nautilus’s net income. Customer will pay all amounts due under this Agreement without setoff, deduction, recoupment or withholding of any kind for amounts owed or payable by Nautilus, whether under this Agreement, Law or otherwise and whether relating to Nautilus’s breach, bankruptcy or otherwise.

 

 

4.     Intellectual Property.

 

a.     Nautilus Intellectual Property. All right, title and interest in and to the Services, the Resultant Data, the Nautilus Intellectual Property and all intellectual property rights in and to all of the foregoing are and will remain with Nautilus and its licensors, if any, subject only to the limited license granted to Customer under this Agreement. Subject to and conditioned on Customer’s payment of Fees in accordance with this Agreement and in compliance with all other terms of this Agreement, Nautilus hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Services during the Term solely in furtherance of Customer’s internal business operations and in the ordinary course of its business and not for the use by or benefit of any third party.

 

b.     Customer Intellectual Property.  Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Intellectual Property. Customer hereby irrevocably grants, royalty-free, all such rights, licenses and permissions in perpetuity in or relating to Customer Intellectual Property (including, without limitation, any and all derivative works thereof) to Nautilus and its Representatives (i) as are necessary or useful for Nautilus or any of its subcontractors to perform the Services and exercise its rights hereunder; (ii) to use to improve and enhance the Services (including, without limitation, through machine learning) and for other developmental, diagnostic and corrective purposes in connection with the Services; and (iii) solely in aggregate or other de-identified form in connection with its business (such aggregated or de-identified data, the “Resultant Data”).

 

c.      Resultant Data. The parties agree that Nautilus will own all rights, title and interest in and to the Resultant Data. To the extent that title to such Resultant Data does not, by operation of law, vest in Customer, Customer hereby (i) assigns, transfers and otherwise conveys to Nautilus, irrevocably and in perpetuity, throughout the universe, all right, title and interest in and to such Resultant Data, including, without limitation, all intellectual property rights therein and thereto and (ii) irrevocably waives any and all claims that Customer may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Resultant Data. Customer may not use the Resultant Data for any purpose without Nautilus’s prior written consent.

 

d.     Logos.  Neither party may use the other party’s name, trademarks, service marks, logos, domain names or other indicia without the other party’s prior written consent granted on a case-by-case basis (which may be sent by email), which consent will not be unreasonably withheld.

 

e.     API.  Customer hereby grants, and represents and warrants it has the right to grant, to Nautilus a non-exclusive, limited license during the Term to access and use those certain APIs necessary to enable the Services to communicate with the Customer Information Technology Infrastructure in connection with Nautilus’s provision of the Services under this Agreement.

 

f.      Feedback.  Customer hereby grants Nautilus a non-exclusive, perpetual, irrevocable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, reproduce, modify, distribute, display, create derivative works of, perform and otherwise exploit any and all Feedback without restriction, including, without limitation, to conduct user research. Customer acknowledges and agrees that Nautilus is not required to use any Feedback.

 

g.     Data Protection. To the extent that Nautilus processes any Customer Personal Data (as defined in the DPA) and (i) the Customer Personal Data relates to individuals located in the European Economic Area (“EEA”) or (ii) the Customer is established in the EEA, Customer agrees that Nautilus does so as a data processor only and the parties agree to comply with the provisions of the DPA.

 

 

5.     Confidential Information. Each party (as the “Recipient”) understands that the other party (as the “Disclosing Party”) has disclosed or may disclose Confidential Information of the Disclosing Party. Confidential Information includes, but is not limited to, business, technical or financial information relating to the Disclosing Party, regardless of form and whether or not marked or otherwise identified as “confidential”, but does not include information of the Disclosing Party that the Recipient can document (a) was rightfully known to the Recipient prior to such information being disclosed or made available to it in connection with this Agreement; (b) was or becomes generally known by the public other than by the Recipient’s or its Representatives’ noncompliance with this Agreement; (c) was or is received by the Recipient on a non-confidential basis from a third party that, to the best of the Recipient’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) is independently developed by the Recipient without reference to any Confidential Information of the Disclosing Party. For the avoidance of doubt, Confidential Information of Nautilus includes pricing and pricing terms set forth in this Agreement, including the Order Documents. As a condition to being provided with access to Confidential Information, the Recipient agrees that it will (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement, (ii) not disclose or permit access to Confidential Information other than (x) to its Representatives who need to know such Confidential Information for purposes of the Recipient’s exercise of its rights or performance of its obligations under this Agreement and are bound by confidentiality obligations no less restrictive than those set forth herein or (y) as required pursuant to Law; provided that the Recipient will give the Disclosing Party reasonable written notice, to the extent permitted by such requirement or order so as to provide the Disclosing Party an opportunity to seek a protective order or other confidential treatment; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care.

 

 

6.     Representations and Warranties.

 

a.     Customer Representations and Warranties.    Customer represents and warrants that: (i) it will have the full right, power and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (iii) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of it; (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; (v) it will comply with all Laws (including, without limitation, the US Export Administration Act and its associated regulations) for purposes of using the Services under this Agreement; and (vi) it owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Intellectual Property so that, as received by Nautilus and processed by the Service and/or the Nautilus Intellectual Property in accordance with this Agreement, it does not and will not infringe, misappropriate or otherwise violate any proprietary or intellectual property rights or privacy rights of any third party or any Laws.

 

b.        Nautilus Representations and Warranties. Nautilus represents and warrants that: (i) it will have the full right, power and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (iii) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of it; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of Nautilus, enforceable against Nautilus in accordance with its terms.

 

c.        Disclaimer of Warranties. Disclaimer of Warranties. NAUTILUS DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, FREE OF HARMFUL CODE OR ERROR-FREE, SECURE, OR BE COMPATIBLE WITH ANY OTHER GOODS, SERVICES OR TECHNOLOGIES, NOR DOES IT MAKE ANY WARRANTY AS TO THE DATA, REPORTS OR RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” “WHERE IS” AND “AS AVAILABLE,” AND NAUTILUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MATERIALS MANUFACTURED OR DEVELOPED BY A THIRD PARTY MAY CONTAIN, BE CONTAINED IN, INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH THE SERVICES. ALL THIRD-PARTY MATERIALS, TO THE EXTENT APPLICABLE, ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN NAUTILUS AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

 

 

7.     Term; Termination.

 

a.     Term. The term of this Agreement will begin on the Effective Date and will remain in effect until the end of the Pilot Term (to the extent applicable) or the Activation Term, in each case, set forth in the applicable Order Form (the “Initial Term”), and may renew as set forth in the applicable Order Form (a “Renewal Term”, and collectively with the Initial Term, the “Term”), unless (i) earlier terminated pursuant to the terms of this Agreement or (ii) either party provides written notice of non-renewal to the other party no less than thirty (30) days prior to the date of expiration of the Initial Term or the then-current Renewal Term, as applicable.

 

b.     Termination and Suspension. Either party may terminate this Agreement, an Order Form and/or a SOW for cause, effective upon written notice to the other party, if such other party materially breaches the terms of this Agreement, such Order Form and/or such SOW, and such breach is incapable of cure, or with respect to a material breach capable of cure, if such other party does not cure such breach within thirty (30) days after receipt of written notice of such breach.  Nautilus may suspend the Services upon five (5) days’ prior written notice (may be via email) to Customer if (i) any Fees due to Nautilus are over thirty (30) days past due or (ii) Customer tampers with the Services or a Nautilus hardware device in violation of the AUP. Such failure to pay Fees or violation of the AUP will be considered an incurable material breach of this Agreement.

 

c. Effect of Expiration or Termination; Survival.Upon expiration or earlier termination, (i) the Services will terminate and each party will cease use of the other party’s Confidential Information, (ii) Customer will pay Nautilus in full for the Services, up to and including, without limitation, the last day of the Term, and (iii) Nautilus will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter, Nautilus may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections 2, 3, 4(a) – 4(c), 4(f), 5, 6(b), 7(c), 8, 9, 10 and 11.

 

 

8.     Indemnification.

 

a.        Customer Indemnification. Customer will indemnify, defend and hold harmless Nautilus and its Representatives, successors and assigns from and against all Losses arising out of or resulting from any Action arising out of, relating to or resulting from: (a) its gross negligence, willful misconduct or fraud in connection with the performance of its obligations and exercising its rights under this Agreement; or (b) any of the Customer Intellectual Property or use thereof consistent with this Agreement infringing or misappropriating any third party proprietary, intellectual property or privacy rights or violating any Laws.

 

b.        Nautilus Indemnification. Nautilus will indemnify, defend and hold harmless Customer and its Representatives, successors and assigns from and against all Losses arising out of or resulting from any Action arising out of, relating to or resulting from its gross negligence, willful misconduct or fraud in connection with the performance of its obligations and exercising its rights under this Agreement.

 

c. Indemnification Notice and Consent. The indemnified party will promptly notify the indemnifying party of the existence of any Action giving rise to a claim for indemnification under this Section and will give the indemnifying party a reasonable opportunity to defend the same at its own expense and with its own counsel; provided that the indemnified party will at all times have the right to participate in such defense at its own expense. The indemnifying party will not settle any such claim without the indemnified parties’ prior written consent, not to be unreasonably withheld, and any such settlement will include a full release of such indemnified parties.

 

 

9.     Limitation of Liability. EXCEPT FOR (A) LIABILITY RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY LOSS OF REVENUE OR PROFITS, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF GOODWILL OR REPUTATION, LOSS OF OR DAMAGE TO DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.  EXCEPT FOR (A) LIABILITY RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD OR BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL THE AGGREGATE LIABILITY OF NAUTILUS IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO NAUTILUS IN THE TWELVE- (12-) MONTH PERIOD PRECEEDING THE ACTION.

 

 

10.     Force Majeure. Nautilus will not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of Force Majeure. If a situation of Force Majeure lasts for more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.

 

 

11.     Miscellaneous. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.  Nautilus may, in its sole discretion, modify or update this Agreement from time to time, and so Customer should review this page periodically. When Nautilus changes the Agreement in a material manner, Nautilus will update the “Last Modified” date at the top of this page and notify Customer that material changes have been made to the Agreement. Customer’s continued use of the Services after any such change constitutes Customer’s acceptance of the new Terms and Conditions. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.  If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Nautilus may subcontract the performance of any of its duties or obligations under this Agreement to any third-party provider without Customer’s consent; provided that Nautilus will be responsible for breaches of this Agreement by such third-party providers. Neither party may assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided that either party may assign any of its rights or duties under this Agreement without the prior written consent of the other party if such assignment is to a successor by consolidation, merger or operation of law or to a purchaser of all or substantially all of its assets. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Nautilus in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be provided in writing to the addresses set forth on the signature page and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement will be governed by the Laws of the State of New York and the United States without regard to its conflict of laws provisions. The parties agree to first attempt to resolve any Disputes between them informally through negotiation. If the parties are not able to resolve the Dispute after thirty (30) days, then the parties agree to resolve the Dispute through final and binding arbitration under the Commercial Arbitration Rules of the AAA, by at least one arbitrator appointed in accordance with said rules.  Unless the parties agree otherwise, any arbitration will take place in New York County, New York State.  Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section, without breach of this arbitration provision. The provisions of this Section may be enforced by any court of competent jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, fees and expenses, including, without limitation, reasonable attorney’s fees, to be paid by the party against whom enforcement is ordered. All Order Documents may be executed by the parties in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. The signatures of all the parties do not need to be on the same counterpart for it to be effective. A signed copy of any such Order Documents delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of any such Order Document.