TERMS OF SERVICE AND SUBSCRIPTION AGREEMENT
Last Updated: August 1, 2018
This TERMS OF SERVICE AND SUBSCRIPTION AGREEMENT (“Agreement”) constitutes a binding, written agreement by and between DTN, LLC or the affiliate of DTN, LLC listed on the applicable Order (such entity shall be referred to in this Agreement as “DTN”) and you. By entering into an Order (defined below), by clicking “I Accept” or “I Agree” on any electronic version of this Agreement or by otherwise accessing or using any of DTN’s Services or Equipment (each, defined below), you agree to be bound by the terms and conditions set forth in this Agreement. If you are entering into this Agreement on behalf of any company, organization or other entity, you represent and warrant that you have the authority to bind such entity to the terms and conditions of this Agreement and, in which case, the terms “you,” “your,” or “Customer” shall refer to such entity. If you do not have such authority, or if you do not agree to the terms and conditions of this Agreement, then you are prohibited from using any of DTN’s Services or Equipment. This Agreement includes and incorporates the terms of the DTN invoice, service order or order form for your initial order of Services and/or Equipment as well as any subsequent DTN invoice, service order or order form, regardless of whether it was submitted in written or electronic form (each, an “Order”).
DTN may amend the terms and conditions of this Agreement at any time by posting them on a DTN-designated website, currently located at www.dtn.com/tos, and all such amended terms and conditions shall be deemed effective and binding on Customer as of the new effective date specified in the amended terms and conditions.
Your use of the Services and Equipment, as well as your use of any DTN website, data or content, is also governed by DTN’s Terms of Service, which are currently located at www.dtn.com/tos, the terms of which are incorporated into this Agreement by reference.
(a) “Data” means any information or data that is transmitted, created, collected, stored, processed or otherwise made available by or to DTN via the Services or Equipment, including any data or information that is transmitted, created, collected, stored, processed or otherwise made available by or to DTN through Customer’s or any of its Users’ use of the Services or Equipment, as well as any outputs, results, analyses related to such information or data.
(b) “Documentation” means any online guides or policies provided or made available to Customer in connection with the Services or Equipment, including the documentation located at www.dtn.com, as the same may be updated by DTN, in its sole discretion, from time to time.
(c) “Equipment” means any certain hardware, equipment or other product(s) which is either leased or sold by DTN to Customer as expressly specified in the Order.
(d) “Party” or “Parties” means, individually, DTN or Customer, as the context requires, and, collectively, DTN and Customer.
(e) “Services” means the specific DTN proprietary information services, which may be provided by DTN either through (i) DTN’s hosted service solution(s), program(s), software, and/or mobile or web-based application(s); and/or (ii) via the Internet, or other electronic or satellite delivery means, as may be specified on an Order.
(f) “Term” means, with respect to the Services, the subscription term indicated on the Order as well as any renewal terms; and, with respect to the Equipment, the rental period indicated on the Order, as well as any renewal terms.
(g) “User” means any individual authorized by Customer to use the Services or Equipment including any User that has been issued a login name and password to access the Services.
2. Use of the Services.
(a) Services Provision. Subject to the terms and conditions of this Agreement, and Customer’s payment of the applicable Fees, DTN hereby agrees to make the Services purchased under the applicable Order available to Customer solely for Customer’s use for its internal business purposes and subject to any restrictions on use specified in writing by DTN, including any additional restrictions specified in this Agreement, the Documentation and any Order. Each Order will specify the applicable license term, pricing and licensing metric for Customer’s use of the Services. DTN rejects any terms, conditions or provisions contained in any purchase order, document or other communication issued to DTN in connection with an Order that omit or are additional to or inconsistent with the terms of this Agreement or the applicable Order. Customer’s purchase of a subscription to use the Services under this Agreement is not contingent upon the delivery of any future functionality or features, or dependent on any comments made by DTN regarding future functionality or features.
(b) Restrictions on Use. Customer shall not take any of the following actions with respect to the Services or Documentation: (i) reverse engineer, copy, modify, create any derivative work of, decompile, disassemble, re-engineer or otherwise create, attempt to create, or permit, allow or assist others to create, the source code or the structural framework of the Services; (ii) cause or permit any use, display, loan, publication, transfer of possession or other dissemination of the Services or Documentation, in whole or in part, to or by any third party without DTN’s prior written consent; (iii) cause or permit any change to be made to the Services or Documentation without DTN’s prior written consent; (iv) bypass or breach any security device or protection used for or contained in the Services or Documentation; (v) rent, loan, sell, resell, sublicense or use the Services for service bureau or time-sharing purposes; (vi) copy, frame or mirror any part of the Services; (vii) use the Services for purposes of benchmarking, conducting competitive analysis of the Services or otherwise publicly disseminating any information regarding the performance of the Services; (viii) develop any competing products or services; or (ix) engage in any fraudulent, unlawful or illegal activity, impersonate any individual or entity, violate any laws or violate the rights of any third party.
(c) Customer Responsibilities. Customer shall (i) keep the Services and Documentation free and clear of all claims, liens and encumbrances; (ii) remain responsible for any use of the Services by its Users and be responsible for all Users’ compliance with the terms of this Agreement, the Documentation and the applicable Order; (iii) be responsible for obtaining and recording consent from Users for DTN to process Data as described in this Agreement (iv) have sole responsibility for the accuracy, quality, legality or appropriateness of any Data that it transmits, creates, collects, stores, processes or otherwise makes available to DTN (including that such Data shall not be defamatory, libelous, pornographic or obscene, contain any virus or malicious code, or violate the rights of any third party); (v) ensure that any user IDs, passwords, and other access credentials for the Services are kept strictly confidential and not shared with any unauthorized person; (vi) promptly notify DTN of any breach of security or unauthorized use of its account; and (vii) be responsible for obtaining and maintaining any equipment, devices, software, hardware or other ancillary services necessary to connect to, access or otherwise use the Services.
(d) Reservation of Rights. Customer acknowledges that: (i) DTN, or its licensors, owns and retains all right, title and interest in and to the Services, Documentation and all other technical information, including all releases, updates, upgrades and new versions of the same, and all copies thereof, including all associated patents, copyrights, service marks, trademarks, trade names, trade secrets and other intellectual property rights; (ii) no rights are granted to Customer hereunder other than expressly set forth herein; and (iii) notwithstanding anything to the contrary contained in this Agreement, this transaction is a subscription license and not a sale, purchase, lease or transfer of the Services or the Documentation.
(e) Third-Party Components. The Services may include or incorporate certain components which are licensed or made available under separate terms by the third-party licensor of such components and/or under the terms of an open source software license (each, a “Third-Party Component”). Any use of a Third-Party Component by Customer shall be governed by, and subject to, the terms and conditions of the separate terms applicable to such Third-Party Component.
(f) Third-Party Content. Customer acknowledges that certain information, content or links to websites that are accessible or available through the Services may be subject to intellectual property rights of third parties (the “Third-Party Content”). Customer understands and acknowledges that DTN does not endorse and is not responsible or liable for the accuracy, availability or content of such Third-Party Content and Customer is solely responsible and liable for its use of any Third-Party Content.
(g) Trial/Evaluation. DTN may make available to Customer certain Services on an evaluation, trial or beta test basis (the “Trial Service”). Customer’s use of a Trial Service will be for the term specified in the applicable Order. DTN may discontinue a Trial Service at any time in its sole discretion. DTN provides the Trial Service to Customer “as is” and without any warranty or indemnity of any kind.
(h) Feedback. To the extent Customer or any of its Users offers DTN any feedback, comments or suggestions regarding the Services or the Equipment, including any comments, posts or other content that Customer or any of its Users submit to any bulletin board, message board, community forum, blog or similar medium that may be made available by DTN as part of the Services (the “Feedback”), Customer irrevocably assigns to DTN all right, title and interest in and to the Feedback. DTN may freely use or exploit Feedback for any lawful purpose.
(i) Compliance. As part of its provision of the Services, DTN is expressly authorized to monitor the use and performance of the Services to ensure compliance with the terms and conditions of this Agreement.
(a) Delivery. Delivery of the Equipment will be made F.O.B. DTN’s shipping facility with shipping charges to be paid by Customer. Unless specifically agreed in writing, all shipments of Equipment shall be to the same address set forth on an Order. Title and risk of loss or damage in the Equipment passes from DTN to Customer upon the tender of shipment to the applicable carrier at DTN’ shipping facility. Customer shall pay all shipping charges, insurance, duties and taxes required. DTN may allocate production and deliveries of the Equipment in its sole and reasonable discretion. Shipping dates are approximate only. DTN shall not be liable for any damage, loss, or expense incurred by Customer if DTN fails to meet a specified shipping date. Notwithstanding anything herein to the contrary, Customer does not by virtue of this Section 3 (or any Order) acquire any right, title or interest in or to any pre-installed or embedded software in the Equipment, other than the right to use such pre-installed or embedded software solely in the normal operation of the Equipment and in accordance with any license terms for such software.
(b) Security Interest. To secure its obligations to make any and all payments required under this Agreement, the Customer hereby grants to DTN a security interest, which may be a purchase money security interest, in the Equipment. DTN may do such things as are necessary to achieve the purposes of this Section 3(b) including, without limitation, any notice filing under the Uniform Commercial Code (U.S.) in the appropriate jurisdiction(s). Customer agrees to execute and deliver any additional documents or instruments that DTN may reasonably request from time to time to achieve the purposes of this Section 3(b), including to allow DTN to perfect its security interest in the Equipment.
(c) Installation. All Equipment must be installed by DTN or by subcontractors certified by DTN. Installation of the Equipment shall be deemed to be complete when DTN’s duly certified installer informs Customer’s personnel at the site that the subject Equipment has been properly installed. Customer will ensure that the site in which the Equipment will be installed satisfies DTN’s specifications. Customer shall, at its expense, obtain all licenses, permits, permission or consents required by any landlord or any other party applicable to the installation of such Equipment (including, without limitation, any running cable and installation of any satellite receiver equipment). SITE PREPARATION MUST BE COMPLETED PRIOR TO DTN’S INSTALLATION OF THE EQUIPMENT OR THE EQUIPMENT WARRANTIES SPECIFIED IN THIS AGREEMENT SHALL BE VOID. In the event that Customer fails to satisfactorily prepare the site before the agreed installation date and fails to notify DTN of such failure at least fourteen (14) days prior to that installation date, Customer agrees to reimburse DTN for any expenses or charges incurred by DTN as a result of such failure.
(d) Third-Party Equipment. If any of the Equipment is identified in an Order as a product manufactured or developed by a party other than DTN (the “Third-Party Equipment”) then such Equipment is being sold or licensed to Customer subject to such third party’s warranties. Customer acknowledges that DTN merely acquired the Third-Party Equipment for Customer, and that the proprietary and intellectual property rights to the Third-Party Equipment are owned by parties other than DTN. Customer also acknowledges that, except for the payment to DTN for the Third-Party Equipment, all of Customer’s rights and obligations with respect thereto flow from and to such third parties. DTN shall provide Customer with copies of all documentation and warranties applicable to Customer’s use of Third-Party Equipment that are provided to DTN.
(e) Lease Terms
(i) DTN, as lessor, leases the Equipment to Customer for the term set forth in the applicable Order. With respect to additional items of Equipment hereafter included by an additional exhibit to an existing Order, the term applicable to each such additional exhibit shall be stated therein and, if not stated therein, shall be for the balance of the term of the existing Order for the Equipment. Title to each item of Equipment shall remain in DTN during the Term of the appropriate period of rental. In addition to the rights of DTN stated herein, DTN shall have all the rights and remedies available to a secured party and lessor under this Agreement, the Uniform Commercial Code, or other applicable law.
(ii) All Equipment shall at all times be and remain personal property regardless of how the same may be affixed to any realty or other property. DTN shall be permitted to display notice of its ownership of the Equipment by affixing to each item of Equipment an identifying indicia of ownership, at DTN’s discretion. The Equipment shall be kept only at the location(s) specified in applicable Order at all times during the continuance of the lease. DTN may, upon reasonable written notice to Customer, inspect the Equipment on Customer’s premises or wherever located.
(iii) Customer shall, at its sole expense, have the responsibility for returning to DTN any damaged Equipment to the DTN address set forth below in Section 3(e)(iv). Customer shall be responsible for the cost of any replacement Equipment as well as any shipping and installation charges for such replacement Equipment. Notwithstanding the damage to an item of Equipment, the monthly rental fee for such item of Equipment shall continue to be paid by Customer.
(iv) In addition to DTN’s other rights and remedies under this Agreement, in the event the leased Equipment is lost, stolen, or not fully returned to DTN, (1) Customer must pay the remaining unpaid rental payments for the Equipment; and (2) DTN reserves the right to also charge a one-time amount of (A) eight hundred United States Dollars ($800.00 USD), or (B) the then-current market value, whichever amount is greater as determined by DTN in its sole and reasonable discretion. Upon termination or expiration of the rental period applicable to the leased Equipment, and in addition to Customer’s other rights set forth in this Agreement, Customer will promptly return such leased Equipment in proper packaging, ordinary wear and tear excepted, to the following address (which may be updated by DTN by providing written notice to Customer):
ATTN: Equipment Return
10651 Chandler Road, Suite 109
La Vista, NE 68128
4. Fees and Payment.
(a) Payment Terms. Customer agrees to pay DTN: (i) for access to the Services, the fees set forth in the applicable Order, which may include one-time fees or subscription fees paid over a set schedule; (ii) with respect to Equipment, as rental for the use of such Equipment, the fees specified in the applicable Order; and (iii) any fees related to use of any Exchange Service, as described in Section 4(d) (collectively, the “Fees”). DTN shall bill Customer in accordance with the applicable Order which may specify a one-time, monthly, quarterly and/or annual billing method. Unless otherwise agreed upon by the Parties in an Order, Customer must pay all invoices submitted to Customer by DTN within thirty (30) days from the date of the invoice. Any payment that is past due to DTN will bear interest on the unpaid amount at the rate of one and one-half percent (1.5%) per month or the highest rate allowed by law (whichever is lower), prorated on a daily basis during the period in which it remains unpaid. Customer shall be responsible for the payment of all sales, excise or other taxes, duties or assessments imposed on the transactions contemplated by this Agreement, excluding taxes based on DTN’s net income. All fees and payments will be in United States Dollars (USD), unless otherwise stated within the applicable Order.
(b) Disputes. In the event part of an invoice is in dispute, Customer agrees to pay the undisputed portion of the invoice and provide written notice to DTN of any disputed portion within thirty (30) days from the date of invoice; otherwise Customer will be deemed to agree to such charges and DTN will not be subject to making adjustments to charges or invoices
(c) Fee Adjustments. After the initial Term of any Order, DTN reserves the right to modify or increase any Fees due for the Services or Equipment at any time and to be effective at the start of the next billing period.
(d) Exchange Service Fees. The Services may contain or allow Customer to access various third-party market data or exchange services (the “Exchange Service”) as requested by Customer. Customer shall pay to DTN any Exchange Service fees, which may include an administrative fee by DTN which shall be collected by DTN and remitted to the applicable exchange. Exchange Service fees are separate and distinct from any other Fees and, among DTN’s other rights under this Agreement, are subject to change at any time without notice.
5. Customer Warranties; DTN Disclaimer of Warranties.
(a) Customer Warranty. Customer represents and warrants that (i) it has full power and authority to execute this Agreement and to perform its obligations under this Agreement (including those obligations related to Customer’s use, transfer or provision of Data, which shall include Customer’s obligation to obtain any permissions or consents of a third-party, including a User, to the extent necessary and related to the Data) without any further ratification or approval; and (ii) its performance under this Agreement, including its use of the Services and Equipment, will comply with all federal, state, local and, if applicable, foreign laws, rules and regulations including the rules and regulations applicable to Customer’s use of the Exchange Service. As necessary, Customer agrees to execute and deliver to DTN all agreements and other information required by any source described in Section 5(a)(ii), as well as any updates to the same.
(b) Disclaimer. THE SERVICES, DATA AND EQUIPMENT ARE PROVIDED BY DTN "AS IS." EXCEPT WHERE SUCH DISCLAIMER IS PROHIBITED BY APPLICABLE LAW, DTN DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, OR INTELLECTUAL PROPERTY INFRINGEMENT AND DTN HEREBY EXPRESSLY DISCLAIMS ANY OF THE FOREGOING. DTN DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICES OR EQUIPMENT WILL OPERATE ERROR FREE, (II) CUSTOMER’S USE OF THE EQUIPMENT OR SERVICES WILL BE UNINTERRUPTED OR (III) ALL DEFECTS WILL BE IDENTIFIED, REPRODUCIBLE OR RESOLVED. SUCH WARRANTIES SHALL NOT BE ENLARGED, DIMINISHED OR OTHERWISE AFFECTED BY THE RENDERING OF ANY ADVICE OR SERVICE BY DTN IN CONNECTION WITH THE EQUIPMENT OR SERVICES OR BY ANY IMPLIED WARRANTY ARISING OUT OF ANY COURSE OF DEALING, BY STATUTE, OR BY PERFORMANCE, CUSTOM OR USAGE OF TRADE. ALL THIRD-PARTY COMPONENTS, THIRD-PARTY CONTENT, THIRD-PARTY EQUIPMENT AND ANY INFORMATION CONTAINED OR OBTAINED BY YOU VIA ANY THIRD-PARTY WEBSITE OR OTHER THIRD-PARTY INFORMATION THAT YOU MAY ACCESS THROUGH THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OR INDEMNITY FROM DTN AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING THE SAME IS STRICTLY BETWEEN CUSTOMER AND THE OWNER, LICENSOR OR DISTRIBUTOR OF SUCH THIRD-PARTY COMPONENTS, THIRD-PARTY CONTENT, THIRD-PARTY EQUIPMENT, THIRD-PARTY WEBSITE OR OTHER THIRD-PARTY INFORMATION.
(c) Disclaimer of Use in High-Risk Activities. THE SERVICES, DATA AND EQUIPMENT ARE NOT FAULT-TOLERANT AND ARE NOT INTENDED FOR USE, AND CUSTOMER MAY NOT USE THE SERVICES OR EQUIPMENT, IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE, INCLUDING BUT NOT LIMITED TO THE OPERATION OF NUCLEAR FACILITIES; AIRCRAFT NAVIGATION, COMMUNICATION, OR CONTROL SYSTEMS; LIFE SUPPORT MACHINES; WEAPONS SYSTEMS; WEATHER FORECASTING, WEATHER MONITORING, OR WEATHER COMMUNICATION SYSTEMS (INCLUDING ANY USE IN THE ISSUANCE OF, OR RELIANCE UPON, ANY WEATHER WATCHES, WARNINGS, EMERGENCIES, ADVISORIES OR OTHER WEATHER BULLETINS); OR ANY OTHER USES IN WHICH FAILURE OF THE SERVICES, DATA OR EQUIPMENT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, ENVIRONMENTAL OR PROPERTY DAMAGE, AND DTN EXPRESSLY DISCLAIMS ANY LIABILITY AND ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS RELATED THE FOREGOING.
6. Confidential Information.
(a) Confidentiality Obligations. Both Parties acknowledge that either Party may receive (the “Receiving Party”) Confidential Information from the other Party (the “Disclosing Party”) during the Term of this Agreement, and all Confidential Information is deemed to have been received in confidence. Receiving Party may use the Disclosing Party’s Confidential Information only to perform its obligations or exercise its rights under this Agreement, and may disclose Disclosing Party’s Confidential Information only to Receiving Party’s employees, agents or contractors that need to know the information pursuant to this Agreement and who are required (by written agreement, written and enforceable internal policy, or legally enforceable code of professional responsibility) to maintain the confidentiality of the Confidential Information as required by this Agreement. Receiving Party must protect the Confidential Information at least as well as it does its own valuable and sensitive information of a similar nature and, in any event, with no less than a reasonable degree of care. Following termination or expiration of this Agreement, and/or if requested by Disclosing Party, Receiving Party must return or destroy all Confidential Information and, upon request, certify in writing as to having returned or destroyed all Confidential Information.
(b) Definition. “Confidential Information” means all confidential or proprietary information communicated by Disclosing Party to the Receiving Party, whether orally, electronically or in writing, that is designated as confidential or that should reasonably be understood to be confidential under the circumstances, whether it was or was not identified as confidential at the time of disclosure. DTN’s Confidential Information includes, but is not limited to, the Services, Documentation, Data, Aggregated Data, Feedback and any training materials and any pre-installed or embedded software in any Equipment, as well as the terms, conditions and existence of this Agreement and any Order.
(c) Exceptions. The obligations of either Party under this Section 6 do not apply to information that Receiving Party can demonstrate (i) was in its possession at the time of disclosure without confidentiality restrictions; (ii) at the time of disclosure by Disclosing Party is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by Receiving Party; (iii) was received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by Receiving Party; or (iv) is independently developed by Receiving Party without use or reference to the Confidential Information of the other Party.
(d) Disclosure by Law. In the event Receiving Party is required by law or legal process to disclose any of Disclosing Party’s Confidential Information, Receiving Party must (i) give Disclosing Party, to the extent legally permitted, reasonable advance notice prior to disclosure so Disclosing Party may contest the disclosure or seek a protective order, and (ii) reasonably limit the disclosure to the minimum amount that is legally required to be disclosed.
7. Privacy; Data Ownership.
(b) Data. Except for personally identifiable information, DTN exclusively owns all right, title and interest in and to all Data and Customer irrevocably assigns to DTN all right, title and interest in and to such Data. DTN may freely use or exploit such Data for any lawful purposes, in its sole discretion. DTN hereby grants to Customer a non-exclusive, perpetual license and right to use the Data solely for Customer’s own non-commercial, internal business purposes. Customer shall not utilize the Data in any manner, or for any purpose, that would directly or indirectly compete with DTN, the Services or the Equipment. Customer may not (i) modify, copy, transmit, externally display, transfer or prepare derivative works of the Data; or (ii) publish or otherwise distribute any Data to any third party without the express written consent of DTN. To the extent DTN aggregates Data with the data or information of any other sources (the “Aggregated Data”), DTN shall exclusively own all right, title and interest in and to the Aggregated Data and DTN may freely use or exploit the Aggregated Data for any lawful purposes in its sole discretion, provided that DTN shall ensure that any external use of such Aggregated Data shall be rendered in such a manner so as not to identify Customer or any User.
(c) No Sensitive Information. Customer shall not transmit or send to DTN or use the Services or Equipment to collect, process or store any Sensitive Information. The term “Sensitive Information” may include, but is not limited to, any of the following: (i) any “Protected Health Information” (as defined under the Health Insurance Portability and Accountability Act of 1996, as amended, and including its implementing regulations, as amended; (ii) any social security number, passport number, military number, driver’s license number, individual taxpayer identification number or other government-issued identification number; (iii) any payment card data, financial account numbers or “non-public personal information,” as defined by the Gramm-Leach-Bliley Act (Pub. L. 106-102) and any of its implementing regulations or guidelines; (iv) any information which could be construed as “special categories of data” under any applicable EU Data Protection Laws (including EU Directive 95/46/EC or Regulation 2016/679 (GDPR)); or (v) any other similar sensitive or restricted information under any other applicable laws or regulations.
8. Term and Termination.
(a) Term. Unless otherwise specified on the applicable Order, the Term of each Order shall commence on the effective date specified therein and continue for a period of one (1) year and, thereafter, shall renew automatically for successive one (1) year period(s) unless a Party provides the other Party with a notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Term.
(b) Termination for Cause. If a Party materially breaches any provision of this Agreement or Order and fails to remedy the breach within thirty (30) days of receipt of written notice from the non-breaching Party, the non-breaching Party may terminate this Agreement and/or any Order adversely affected by the breach. Termination under this Section 8(b) does not limit either Party from pursuing any other remedies available to the Party, including, but not limited to, injunctive relief. In addition to any other rights and remedies under this Agreement, DTN may, in its sole discretion, suspend Customer’s access to the Services if DTN determines that (i) Customer’s use of the Services or any Customer-provided Data is, or may be or become, illegal or objectionable and/or compromises the integrity and/or security of the Services; or (ii) a threat to the safety or security of the Services is imminent. DTN will promptly restore such access to the Services upon a satisfactory resolution of the event which gave rise to the suspension, if such event is capable of resolution.
(c) Additional Termination Rights. Either Party may terminate this Agreement upon written notice to the other Party in the event (i) the other Party files a petition for bankruptcy or is adjudicated a bankrupt; (ii) a petition in bankruptcy is filed against the other Party and the petition is not dismissed within thirty (30) calendar days; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (iv) the other Party discontinues its business; or (v) a receiver is appointed for the other Party or its business. In addition to the foregoing, DTN may immediately terminate this Agreement upon written notice to Customer in the event of Customer’s breach of Section 2, 3, 6 or 7.
(d) Termination of Exchange Services. In addition to Customer’s other rights under this Agreement, and notwithstanding Section 4(d) above, Customer may terminate any Exchange Service portion of the Services at any time by providing DTN with at least thirty (30) days’ prior written notice. Any use of Exchange Services beyond the limitations of this Agreement or the applicable Order may subject Customer to penalties, fines or additional Exchange Service fees imposed by the third-party exchange or vendor, and such penalties, fines and fees are the sole responsibility of Customer.
(e) Survival. In the event of any termination or expiration of this Agreement for any reason, all provisions of this Agreement whose meaning requires them to survive will survive the expiration or termination of this Agreement.
(f) Effects of Termination. Upon termination, each Party shall (i) immediately destroy or return to the other Party all of such other Party’s Confidential Information then in such Party’s possession, in accordance with Section 6(a); and (ii) promptly certify to the other Party that it has done so. Termination of this Agreement shall operate to terminate all then-outstanding Orders. The termination of this Agreement or Order shall not relieve Customer of its liability to pay any amounts due to DTN hereunder. Upon the termination of this Agreement or any Order, all rights and licenses granted thereunder shall likewise terminate. In case of Customer’s failure to pay the rental fees when due for any Equipment, or in the event of DTN’s termination of this Agreement or an Order in accordance with Section 8(b) or 8(c), DTN may take possession of the Equipment, with or without process of law (and for this purpose, may enter upon any premises of Customer without liability for suit, action, or other proceeding by Customer and remove the same), and thereupon all of Customer’s rights in the Equipment shall cease and terminate. Any repossession or resale of any item of Equipment shall not bar an action for a deficiency by DTN against Customer, and the bringing of an action or the entry of judgment against Customer shall not bar DTN’s right to repossess any or all items of Equipment.
(a) Customer. Customer shall defend, indemnify and hold DTN (including its directors, officers, employees, licensors, suppliers, agents, successors and assigns) harmless from and against all actions, claims, damages, costs, expenses or liabilities (including reasonable attorneys’ fees) arising out of (i) a breach by Customer of any representation, warranty, covenant or obligation under this Agreement; (ii) any violation of applicable law by Customer; or (iii) any negligent act or omission, or intentional misconduct, of Customer.
(b) DTN. DTN shall defend any claim, suit or proceeding brought against Customer by a third-party alleging that the Services, as provided by DTN to Customer, infringe a United States copyright, patent, trademark or trade secret, provided that DTN will have no obligations or other liability under this Section 9 to the extent the claim, suit or proceeding arose from: (1) Customer’s or any User’s negligence or unauthorized use of the Services; (2) any modification to the Services; or (3) any combination of the Services with any materials, products or services not provided by DTN. If such a claim is or is likely to be made, DTN may, in its sole discretion: (i) obtain for Customer the right to continue to use the Services consistent with this Agreement; (ii) modify the Services so they are non-infringing and in compliance with this Agreement; or, if (i) or (ii) are not commercially feasible, (iii) terminate this Agreement or the applicable Order and refund to Customer the Fees pre-paid for the affected Services, prorated to the number of months remaining in the then-current Term. THE FOREGOING STATES THE ENTIRE OBLIGATION OF DTN, ITS LICENSORS AND ITS SUPPLIERS, AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
(c) Indemnification Procedure. The Party claiming indemnification shall: (i) notify the indemnifying Party of any claim in respect of which the indemnity may apply; (ii) relinquish control of the defense of the claim to the indemnifying Party; and (iii) provide the indemnifying Party with all assistance reasonably requested in defense of the claim. The indemnifying Party shall be entitled to settle any claim without the written consent of the indemnified Party so long as such settlement only involves the payment of money by the indemnifying Party and in no way affects any rights of the indemnified Party.
10. Limitation of Liability.
(a) Disclaimer of Damages. DTN SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR SPECIAL, PUNITIVE, INDIRECT, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, COST OF CAPITAL, COST OF COVER, OR SERVICE INTERRUPTIONS, FROM THE USE OF OR INABILITY TO USE THE EQUIPMENT OR THE SERVICES, REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THESE EXCLUSIONS SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(b) Monetary Cap. EXCEPT FOR LIABILITY ARISING OUT OF DTN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, DTN’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY CLAIMS, LOSSES, INJURIES, SUITS, DEMANDS, JUDGMENTS, LIABILITIES, COSTS, EXPENSES OR DAMAGES FOR ANY CAUSE WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATED TO THIS AGREEMENT), REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, MUST NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER GIVING RISE TO SUCH ACTION DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
(c) Allocation of Risk. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES. THE LIMITATIONS SPECIFIED IN THIS SECTION 10 SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(a) Choice of Law and Venue; Prevailing Party. This Agreement is and shall be construed and enforced solely in accordance with the laws of the United States of America and of the State of Delaware, U.S.A. without regard to its conflict‑of‑laws provisions, and the Parties agree that in any dispute exclusive jurisdiction and venue must be in the state and federal courts in the State of Delaware, U.S.A. The Parties mutually acknowledge and agree that they will not raise, and hereby waive, any defenses based upon venue, inconvenience of forum or lack of personal jurisdiction in any action or suit brought in accordance with this provision. The Parties acknowledge and agree that neither the Uniform Computer Information Transactions Act nor the United Nations Convention for the International Sale of Goods shall apply to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
(b) Jury Trial Waiver. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES KNOWINGLY AND WILLINGLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY FOR ANY CLAIM, CONTROVERSY OR CAUSE OF ACTION BASED UPON OR RELATED TO THIS AGREEMENT, ANY ORDER OR WITH RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(c) Force Majeure. Except for Customer’s obligations to make payments hereunder when due, if either Party is delayed or prevented from performing under this Agreement as a result of any cause beyond its reasonable control, including natural disaster, fire, flood, riots, acts of war, terrorism or insurrection, unusually severe weather, Acts of God, labor disputes and governmental regulations, denial of service attack or the failure or outage of any internet, network or telecommunication infrastructure (a “Force Majeure Event”), the delay shall be excused during the continuance of, and to the extent of, such cause, and the period of performance shall be extended to the extent necessary to allow performance after the Force Majeure Event has been removed.
(d) Compliance With Law. Each party agrees to comply with all laws applicable to its performance under this Agreement and its general business operations including, but not limited to, all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act.
(e) Export. The Services and Equipment may be subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulation (EAR) and the sanctions program administered by the Office of Foreign Assets Control (OFAC). Customer shall not export, re-export or release, directly or indirectly, or otherwise use the Services and Equipment in or to any country or jurisdiction to which the export, re-export or release of the same (i) is prohibited by applicable law (including to any party included on the OFAC Specially Designated Nationals List, or to any country which is the subject of an embargo by the United States government); and (ii) without first obtaining any licenses and permits which may be required under the applicable export laws of all U.S. government agencies. Customer represents and warrants that it is not owned or controlled by any person or entity on the OFAC Specially Designated Nationals List.
(f) Federal Governmental End Use Conditions. DTN provides the Services and Documentation, and any related software and technology, for ultimate federal government end use solely in accordance with the following conditions: any government technical data and software rights related to the Services or Documentation includes only those rights customarily provided to the general public, as further specified in this Agreement. The foregoing license is provided in accordance with specific sections of the Federal Acquisition Regulation (FAR) including FAR 12.211 and FAR 12.212 and, as applicable to any transaction with the Department of Defense, the Defense Federal Acquisition Regulation Supplement (DFARS) including DFAR 252.227-7015 and DFAR 227.7202-3. To the extent any governmental agency needs rights not otherwise granted under this Agreement, it must negotiate with DTN to allow for a determination as to whether there are terms and conditions which are acceptable for granting such requested rights and, if so, any such additional terms and conditions must be set forth in a mutually agreeable written addendum to this Agreement.
(g) Independent Contractors; No Third-Party Beneficiaries. The relationship between the Parties is that of independent contractors. Nothing in this Agreement shall be construed as creating any agency or other form of joint venture, franchise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to bind the other Party. There are no third-party beneficiaries to this Agreement.
(h) Injunctive Relief. Unless otherwise specified in this Agreement, all rights, remedies and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and are in addition to all other rights, remedies and powers given under this Agreement or any laws now existing or subsequently enacted. Customer acknowledges and agrees that if it breaches any of the licensing or confidentiality obligations under this Agreement, DTN may suffer immediate and irreparable harm for which monetary damages alone are not a sufficient remedy, and that, in addition to any other remedies DTN may have, DTN is entitled to seek injunctive relief, specific performance or any other form of relief in a court of competent jurisdiction, including, but not limited to, equitable relief, to remedy the breach or threatened breach by Customer and to enforce this Agreement.
(i) Publicity and Use of Trademarks. Neither Party shall issue or release any statement or other marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks or logos without the prior written consent of the other Party; provided, however, that DTN may include Customer’s name, logo and/or trademarks in its lists of current and/or former customers and in promotional and marketing materials.
(j) Assignment; Subcontractors. Customer may not assign this Agreement without the express written permission of DTN. Any purported assignment by Customer in violation of the preceding sentence shall be void and of no effect. DTN may assign this Agreement upon written notice to Customer. Subject to the foregoing, this Agreement will inure to the benefit of, and will be binding upon, the Parties hereto and their respective successors and permitted assigns. DTN may subcontract any of its obligations under this Agreement to any third party; provided, however, that DTN will be responsible for the performance of any such subcontractor and their compliance with DTN’s obligations as required under this Agreement.
(l) Waiver. No waiver of any provision of this Agreement may be deemed or constitute a waiver of any other provision of this Agreement, nor may any waiver constitute a continuing waiver unless otherwise expressly provided in writing. The failure of either Party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either Party of any of the provisions of this Agreement, may in no way be construed to be a present or future waiver of provisions or in any way affect the ability of a Party to enforce each and every provision after such event.
(m) Severability. If any provision of this Agreement is adjudged by a court to be invalid, void or unenforceable, the Parties agree that the remaining provisions of this Agreement will not be affected by such determination, that the provision in question must be replaced by the lawful provision that most nearly embodies the original intention of the Parties and that this Agreement will in any event otherwise remain valid and enforceable.
(n) Notices. All legal notices required or permitted hereunder must be in writing and shall be deemed to have been duly given (i) when received, if personally delivered; or (ii) upon written verification or receipt, if sent by overnight courier or mailed by certified or registered mail, return receipt requested. Notices shall be sent to the other Party at the address set forth on the applicable Order, or to the address as either Party furnishes to the other Party in writing pursuant to this Section. Notwithstanding the foregoing, DTN may send certain administrative or operational notices regarding the Services or Equipment to Customer or an individual User via e-mail or by posting of a notification within the Service.
(o) Interpretation. If an ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
(p) Captions and Headings. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.