This Streamkap Master Subscription Agreement is made between Streamkap Inc., a Delaware corporation, (“Streamkap”) and the party that subscribes for Streamkap Products (as defined below) (“Customer”). This “Agreement” consists of this Streamkap Master Subscription Agreement and each Order Form (as defined below). Customer’s use of Streamkap Products is governed by Streamkap’s pricing.
Where Customer is using a Trial Product (as defined below), Customer consents to this Agreement by clicking Agree or using the Streamkap Product(s).
1.
DEFINITIONS The following terms, when used in this Agreement will have the following meanings:
“Affiliate” means an entity controlling, controlled by or under common control with a party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists, provided, as it relates to Customer, such entity is not a current or prospective competitor to Streamkap or in the business of developing or offering products or technologies that are substantially similar to any Streamkap Product.
“Customer Data” means any data that Customer or its Users upload to any Streamkap Product for processing by such Streamkap Product.
“Documentation” means Streamkap’s usage documentation for the applicable Streamkap Product made available on Streamkap’s website.
“Streamkap Product” means a SaaS-based data integration product (“SaaS Product”) provided by Streamkap.
“Order Form” means an ordering document or online order entered into between Customer and Streamkap, or online order process completed by Customer and confirmed by Streamkap, including any applicable terms, in each case specifying the Streamkap Product(s) to be provided under this Agreement.
“System Data” means data, information or outputs derived by Streamkap from the use of a Streamkap Product, including logs, statistics, or reports regarding the performance, availability, usage, integrity or security of the Streamkap Product (e.g., a user’s path through the Streamkap Product, login frequency, query logs, etc.) and any feedback, suggestions or similar information regarding a Streamkap Product provided by Customer to Streamkap.
“Third Party Platform” means any product, add-on or platform not provided by Streamkap that Customer uses with the Streamkap Product.
“Trial Product” means any Streamkap Product provided on a free, trial, evaluation, proof of concept or similar basis.
“User” means an employee, contractor (to the extent providing services to Customer) or end user of Customer that Customer has provisioned to use a Streamkap Product through its account.
2.
STREAMKAP'S PRODUCTS AND SUPPORT2.1 Streamkap Products. Streamkap will provide to Customer the Streamkap Products (as defined below) identified on each Order Form in accordance with this Agreement, including the technical support and SLA terms referenced in Exhibit A, and Customer may use and access such Streamkap Products, each according to the terms of this Agreement (including the applicable Order Form). Customer’s permitted use case will be described on the applicable Order Form or separate addendum mutually executed by the parties that references this Agreement (“Addendum”) and may include internal usage and/or “Powered by Streamkap” or “PBF” usage, as described in Section 3.2. Streamkap will comply with applicable laws and regulations in providing the Streamkap Products.
2.2 Affiliates. To the extent Customer’s Affiliates wish to make separate purchases, any of Customer’s Affiliates may execute a new Order Form specifically for that Affiliate entity and such Customer Affiliate will be subject to this Agreement as if such Customer Affiliate were a signatory to this Agreement.
3.
CUSTOMER DATA; RESPONSIBILITIES
3.1 Customer Responsibilities. (a) General. Notwithstanding anything herein, Customer is solely responsible for (a) the accuracy, content and legality of all Customer Data and warrants that it has sufficient rights in the Customer Data to permit: (i) Customer's use and receipt of the Streamkap Products and (ii) with respect to SaaS Products, Streamkap’s access to and processing of Customer Data pursuant to this Agreement, and (b) the acts and omissions of its employees, contractors and Users and their compliance with this Agreement. (b) Sensitive Use. Customer acknowledges that the Services are not designed, intended, or authorized to process sensitive information or data, including, but not limited to, protected health information as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), or other sensitive data of Customer, a User, or a third party (collectively “Sensitive Information”). Customer shall not use the Services for such purposes or under such circumstances or to process or store Sensitive Information. Streamkap is not aware of and has no method of detecting whether or not any Customer Personal Data constitutes Sensitive Information. Streamkap EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ITS ACCESS TO, STORAGE OF, OR PROCESSING OF ANY SENSITIVE INFORMATION. Customer shall indemnify Streamkap for any claims arising from Customer’s breach of this Section 3.1.
4.
CONFIDENTIALITY; TECHNOLOGY RESTRICTIONS; PROPRIETARY RIGHTS4.1 Confidential Information. Subject to the limitations set forth in Section 4.2, all information disclosed by one party to the other party during the term of this Agreement, whether in oral, written, graphic or electronic form, shall be deemed to be “Confidential Information”. Confidential Information of Streamkap includes non-public information regarding features, functionality and performance of the Streamkap Products. Customer Data is considered Customer’s Confidential Information. The receiving party agrees to maintain the confidentiality of any Confidential Information of the disclosing party using at least the same degree of care it uses to protect its own confidential information, which shall not fall below a reasonable standard of care.
4.2 Exceptions. Confidential Information does not include information which: (a) is part of the public domain at the time of disclosure; (b) becomes a part of the public domain through no fault of the receiving party or persons or entities to whom the receiving party has disclosed, transferred or permitted access to such information; (c) becomes available to the receiving party on a non-confidential basis from a source legally entitled to share the information without confidential treatment; (d) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; or (e) is released from the confidentiality obligations herein by written consent of the disclosing party.
4.3 Nondisclosure. The receiving party will not disclose any Confidential Information of the disclosing party to any person or entity, except: (a) to agents of the receiving party who have a need to know such information and who are subject to confidentiality agreements with the receiving party at least as protective of the disclosing party’s Confidential Information as this Agreement, or (b) as required to be disclosed by law by any governmental or other regulatory authority, securities exchange or pursuant to the terms of a valid and effective subpoena or court order, provided that the receiving party immediately notifies the disclosing party (to the extent permitted) of the existence, terms and circumstances surrounding such a request so that the disclosing party may seek appropriate protective action. The receiving party may not use the disclosing party's Confidential Information for any purpose other than to exercise its rights and comply with its obligations under this Agreement.
4.4 Return; Destroy; Protect. On the disclosing party’s request, the receiving party must return or destroy all Confidential Information of the disclosing party which has been supplied to or acquired by the receiving party, other than: (a) records the receiving party has a separate legal right or obligation to retain; and (b) copies of such Confidential Information created in the ordinary course of the receiving party’s business and retained in accordance with its internal document retention and information technology policies. To the extent the receiving party retains such Confidential Information, the receiving party will continue to protect such Confidential Information in accordance with Sections 4.1 and 4.3 for so long as it meets the definition of Confidential Information.
4.5 Technology Restrictions. Customer will not, and will not allow, permit or assist any User or third party to, directly or indirectly:(a) reverse engineer, decompile, disassemble, modify, create derivative works of, derive or otherwise attempt to discover the source code underlying any Streamkap Product; resell any Streamkap Product or use any Streamkap Product for timesharing or service bureau purposes or otherwise for the benefit of a third party; attempt to probe, scan or test the vulnerability of any Streamkap Product, breach the security or authentication measures of any Streamkap Product without proper authorization or willfully render any part of a Streamkap Product unusable; use or access any Streamkap Product to develop a product or service that is competitive with any Streamkap Product, engage in competitive analysis or benchmarking, or publicly disseminate performance information or analysis regarding any Streamkap Product; remove any proprietary notices or labels on any Streamkap Product; or use any Streamkap Product in violation of any applicable laws or regulations (including any export law) or outside the scope expressly permitted hereunder (including in the applicable Order Form);(b) post, upload, forward, or otherwise transmit any file or software code which contains, facilitates, or launches viruses, worms, trojan horses or any other contaminating or destructive features, or that otherwise interferes with the proper working of any Streamkap Product; attempt to access any other Streamkap systems that are not part of a Streamkap Product; use any Streamkap Product to upload, post, process, distribute, link to, publish, reproduce, or transmit any information, software or content for which Customer does not have the legal right to engage in such activities; orWithout limiting its other remedies, Streamkap may suspend Customer’s access to the Streamkap Products if Customer breaches any of the above restrictions, or if Customer’s use of a Streamkap Product risks material harm to the Streamkap Product or others, provided that, where practicable, Streamkap will give Customer prior notice thereof so that Customer may seek to resolve the issue and avoid suspension.
4.6 Injunction for Breach. The parties agree that damages would be an inadequate remedy in the event of a breach of this Section 4. Therefore, the parties agree that a party is entitled, in addition to any other rights and remedies otherwise available, to seek injunctive and other equitable relief in the event of a breach or threatened breach by the other party of this Section 4.
4.7 Proprietary Rights. Customer owns all right, title and interest in and to the Customer Data and Customer Confidential Information. Customer grants Streamkap all necessary rights to process Customer Data in accordance with the terms of this Agreement. Streamkap owns and retains all right, title and interest in and to the Streamkap Products (including any improvements thereto made as a result of Customer feedback or suggestions), System Data, and Documentation. All rights not expressly granted under this Agreement are reserved.
5.
SECURITY MEASURES
5.1 Security Measures. Streamkap will, consistent with industry standard practices, implement and maintain physical, administrative and technical safeguards and other security measures designed to: (a) maintain the security and confidentiality of Customer Data while it is being processed by the Products; and (b) protect Customer Data from known or reasonably anticipated threats or hazards to its security, availability and integrity, including accidental loss, unauthorized use, access, alteration or disclosure, in each case while it is being processed by the Products. Streamkap will conduct regular penetration testing or other appropriate security testing and security audits and, upon Customer’s reasonable request, provide Customer with a copy of or online viewing access to reports summarizing such testing and audits.
5.2 Security Incidents. Streamkap will inform Customer promptly upon discovery of any actual compromise, unauthorized access to, alteration, loss, use or disclosure of, any Customer Data, in each case while such Customer Data is being processed or stored by the Products (each a “Security Incident”). Streamkap will investigate and conduct a root cause analysis of the Security Incident and take all reasonable steps to prevent further compromise, unauthorized access, alteration, loss, use or disclosure of such Customer Data.
5.3 Data Privacy. Aside from business contact information necessary to administer the business relationship between Streamkap and Customer, personal data (as defined under applicable law) is not intended to be provided, accessed, processed, or otherwise exchanged. Customer represents and warrants that it will not transmit or expose Streamkap to any protected health information or cardholder data (as regulated by the Payment Card Industry). Solely to the extent Streamkap has access to Customer personal data, the Data Processing Addendum, found at streamkap.com/legal/dpa, will form part of this Agreement and shall apply in relation to personal data processed under or in connection with this Agreement. Customer shall only facilitate access to such Customer personal data if, and to the extent, strictly necessary for the purposes of this Agreement and to the extent that it is lawful to do so.
6.
PAYMENT OF FEES6.1 Calculation of Fees. Customer will pay Streamkap the applicable fees described in each Order Form or as subscribed (the “Fees”). All Fees are noncancelable and nonrefundable, except as expressly provided otherwise herein. If Customer’s use of a Streamkap Product exceeds the usage or capacity set forth on the applicable Order Form, or otherwise requires the payment of additional Fees (per the terms of this Agreement), Streamkap will invoice Customer in arrears for such additional usage or capacity and Customer agrees to pay the additional Fees in the manner provided herein.
6.2 Payment Terms. Streamkap will bill for the Streamkap Products through an invoice, through the marketplace where the original purchase was made, or directly through credit card if provided. Full payment for invoices must be received by Streamkap within 30 days after the issuance of the invoice (which may be sent by email). If Customer is paying by credit card, Customer represents and warrants that it has the right to use the credit card provided and grants Streamkap the right to provide the credit card information, including the credit card number, its expiration date and billing address, to third parties for the purposes of facilitating payment transactions. Streamkap reserves the right to charge a 3% surcharge for any credit card payments. Verification of information may be required prior to the acknowledgment or completion of any payment transaction. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and, without limiting its other remedies, Streamkap may suspend Customer’s access to the Streamkap Products if Customer’s account is 30 days or more overdue. If Customer believes that Streamkap has billed Customer incorrectly, Customer must contact Streamkap no later than 60 days after the date of the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Streamkap’s customer support department.
6.3 Taxes. All amounts payable by Customer under this Agreement are exclusive of all applicable sales, use, value added, excise, property, withholding or similar tax and any related tariffs, and similar charges (collectively, “Taxes”). Customer is responsible for payment of all Taxes, except taxes based on Streamkap’s net income. If Customer is required to pay any such taxes, Customer shall pay such taxes with no reduction or offset in the amounts payable to Streamkap hereunder. If an applicable tax authority requires Streamkap to pay any taxes that should have been payable by Customer, Streamkap will advise Customer in writing, and Customer will promptly reimburse Streamkap for the amounts paid.
7.
TERM AND TERMINATION 7.1 Term. This Agreement will continue from the Effective Date until terminated as set forth below (the “Term”). The initial term of each Order Form will begin on the effective date of such Order Form and will continue for the subscription term set forth therein, provided that if Customer is on a monthly plan (a) such Order Form will continue until such date as the applicable monthly plan is canceled and (b) after cancellation, Customer may revive its account by recommencing data transfers. If Customer uses any Streamkap Product after the end of the subscription term listed on the Order Form, Customer will be billed in arrears according to the Order Form for any continued usage of such Streamkap Product. Except with respect to monthly plans, each Order Form will renew automatically for successive one-year periods on Streamkap’s then-current Order Form terms and conditions, unless a party provides notice of nonrenewal to the other party at least 60 days prior to expiration of the then-applicable subscription term.
7.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice if the other party (a) materially breaches any of the terms or conditions of this Agreement or the applicable Order Form (including any failure to pay any amounts when due) and fails to cure such breach within 30 days after written notice describing the breach; or (b) files for bankruptcy or is the subject of an involuntary filing in bankruptcy (in the latter case, which filing is not discharged within 60 days) or makes an assignment for the benefit of creditors or a trustee is appointed over all or a substantial portion of its assets. Upon any expiration or termination, (i) Customer remains obligated to pay the balance due on Customer’s account accrued prior to expiration or termination, and will be billed for such unpaid fees, and (ii) Customer shall immediately cease using the applicable Streamkap Products.
7.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, and terms and conditions relating to proprietary rights, technology restrictions, confidentiality, disclaimers, termination and limitations of liability and the miscellaneous provisions below.
8.
WARRANTIES AND DISCLAIMER 8.1 Mutual. Each of Streamkap and Customer warrants that: (a) it has the legal power and authority to enter into this Agreement; (b) the person signing or accepting this Agreement on its behalf is a duly authorized representative of such party with the authority to bind such party to this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; (d) it is a legal entity in good standing in the jurisdiction of its formation; and (e) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Streamkap Product.
8.2 Streamkap Warranties. Streamkap represents and warrants that it will provide the Streamkap Platform and Streamkap services hereunder in all material respects in accordance with the applicable Documentation therefor. Customer’s exclusive remedy and Streamkap’s sole obligation for any failure of the Streamkap Platform or Streamkap services to perform in all material respects in accordance with its Documentation will be for Streamkap to use its commercially reasonable efforts to correct such non-conformance. Such warranties do not apply to any defect resulting from: (i) misuse, (ii) casualty loss, (iii) use or combination of the Streamkap Platform or Streamkap services with any products, goods, services or other items furnished by anyone other than Streamkap, or (iv) any modification not made by or for Streamkap, or any use of the Streamkap Platform or Streamkap services by Customer in violation of the terms of this Agreement.
8.3
DISCLAIMERS. STREAMKAP DOES NOT WARRANT THAT THE STREAMKAP PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE STREAMKAP PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE STREAMKAP PRODUCTS ARE PROVIDED “AS IS” AND STREAMKAP DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING HEREIN, STREAMKAP IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS.
9.
INDEMNIFICATION AND LIMITATION OF LIABILITY9.1 Customer Indemnification. To the maximum extent allowed by applicable law, Customer shall indemnify and hold harmless Streamkap, its licensors and its subsidiaries, affiliates, officers, directors, employees, and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the claim of a third party or data subject alleging that the Customer Data or its use has infringed the rights of, defamed or otherwise caused harm to, a data subject or third party, or violated applicable law; provided in any such case that Streamkap (i) gives written notice of the claim promptly to Customer; (ii) gives Customer sole control of the defense and settlement of the claim (provided that any settlement releases Streamkap of all liability and such settlement does not affect Streamkap’s business); (iii) provides to Customer all available information and assistance reasonably requested; and (iv) has not compromised or settled such claim.
9.2 Disclaimer of Certain Damages. EXCEPT IN CONNECTION WITH FULFILLMENT OF INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT SHALL CUSTOMER OR STREAMKAP OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE STREAMKAP PLATFORM OR THE STREAMKAP SERVICES, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE STREAMKAP PLATFORM AND SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, INACCESSIBILITY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET. STREAMKAP IS NOT RESPONSIBLE AND DISCLAIMS ALL LIABILITY FOR ANY DELAYS, FAILURES OR DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER IS FULLY RESPONSIBLE FOR INTERNET ACCESS AND CONNECTIVITY ISSUES.
9.3 Damages Cap. IN NO EVENT SHALL STREAMKAP’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS CUSTOMER WAS REQUIRED TO PAY STREAMKAP UNDER THIS AGREEMENT FOR THE ACCESS TO THE STREAMKAP PLATFORM AND/OR SERVICES GIVING RISE TO SUCH LIABILITY, IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
9.4 Exclusions. Streamkap will have no obligation to Customer to the extent any Infringement Claim is based upon or results from: (i) the failure of Customer to use an update of the Streamkap Platform and/or Streamkap services hereunder that would avoid the infringement; (ii) a modification of the Streamkap Platform that is not performed by Streamkap; (iii) the combination, operation, or use of the Streamkap Platform and/or Streamkap services hereunder with any other products, services or equipment not provided by Streamkap; (iv) any intellectual property right owned or licensed by Customer, excluding the Streamkap Platform or Streamkap services hereunder or (v) any third party open source software.
10.
MISCELLANEOUS10.1 Assignment. Customer shall not assign this Agreement, in whole or in part, or any or all of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Streamkap. Any assignment in violation of this Section 10.a shall be void and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by the parties and their respective successors and assigns.
10.2 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement, other than monetary obligations, as a result of any cause or condition beyond such party’s reasonable control.
10.3 Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California, without regard to its conflicts of law principles. This Agreement shall not be governed by the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in San Francisco County. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense. If any provision(s) hereof is held unenforceable, this Agreement will continue without said provision and be interpreted to reflect the original intent of the parties.
10.4 Notices. Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered via email security@streamkap.com.
10.5 Non-waiver. Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
10.6 Entire Agreement. This Agreement completely and exclusively states the entire agreement of the parties regarding the subject matter herein, and it supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding such subject matter. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgement, confirmation or other document issued by Customer.
Streamkap Support Terms
Streamkap provides an
SLA and will use commercially reasonable efforts to adhere to it.
