Last Updated June 19, 2020
THE FOLLOWING SERVICE TERMS & CONDITIONS APPLY TO ALL SUBSCRIPTIONS AND OUTPUT PROVIDED BY TURBINE CORPORATE HOLDINGS, INC., A DELAWARE CORPORATION (DBA “TURBINE LABS”) TO CUSTOMER (the Signatory on “Work Order Form”). TURBINE LABS’ ACCEPTANCE OF ANY CUSTOMER PURCHASE ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN CUSTOMER’S PURCHASE ORDER OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND TURBINE LABS (IN EACH CASE, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN) WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. TURBINE LABS’ COMMENCEMENT OF PERFORMANCE WILL NOT BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.
1. “Agreement” means these Service Terms & Conditions.
2. “Order Form” and “Amendment A” means an order form executed by Turbine Labs and Customer, which contains information regarding the parties, their respective addresses for notice, the parties’ signatures, fees, and certain other information.
3. Signatory on “Work Order Form” Means the customer(s) purchasing Turbine Labs services, who have accepted and executed a separate Work Order Form, or Pricing Proposal, to purchase Services from Turbine Labs.
4. “Data” means any data or information that is collected by Turbine Labs in connection with the Turbine Labs Service, including any such data that is incorporated into Reports.“Reports” means reports provided by Turbine Labs, in all forms, including without limitation any intelligence briefing reports or Turbine SegmentTM reports specified in an Order Form.
5. “Turbine Labs Service” means Turbine Labs’ actionable intelligence platform.
6. “Turbine Labs Technology” means, collectively, the technology and intellectual property underlying the Turbine Labs Service and Reports, including without limitation all Data
7. “Material Breach” means a breach (including anticipatory) that is serious in the widest sense of having serious effect on the benefit which the parties would otherwise derive from: (a) a substantial portion of this agreement; or (b) any of the obligations or restrictions set forth in this agreement. Material Breach includes but is not limited to: the unauthorized (by Turbine Labs) use, dissemination, or disclosure, whether intentional or accidental, of Turbine Labs Technology, Turbine Labs Services, Data, or Reports. Material Breach does not include changes made by Turbine Labs to Reports or Services that are defined in the Order Form.
2. TURBINE LABS SERVICE
1. Reports. Turbine Labs will provide Customer with Reports during the term of this Agreement for the Turbine SegmentsTM or other subject matter specified in an Order Form, on the schedule specified in the applicable Order Form. Reports include any of the described services described in the Statement of Work.
2. License to Reports. Subject to the terms and conditions of this Agreement, Turbine Labs grants to Customer a limited, non-exclusive, non-transferable (except as permitted in Section 10.2) license during the term of this Agreement to download, and use internally any Reports Turbine Labs makes available to Customer, and distribute unmodified versions of such Reports to the Customer’s clients.
3. License to Reports. Subject to the terms and conditions of this Agreement, Turbine Labs grants to Customer a limited, non-exclusive, non-transferable (except as permitted in Section 10.2) license during the term of this Agreement to download, and use internally any Reports Turbine Labs makes available to Customer, and distribute unmodified versions of such Reports to the Customer’s clients.
4. Use Restrictions. Except as otherwise explicitly provided in this Agreement, Customer will not, and will not permit or authorize third parties to reproduce, modify, translate, enhance, reverse engineer, or create derivative works of the Reports or other Turbine Labs Technology. Customer will not provide, distribute, or make available Turbine Labs Reports or technology to Third Parties without express, written permission by Turbine Labs.
5. Reservation of Rights. This Agreement is non-exclusive, and Turbine Labs reserves to itself all rights to the Turbine Labs Technology not expressly granted to Customer under this Agreement. Customer agrees that Turbine Labs (or its licensors) owns all right, title and interest in and to the Turbine Labs Technology, including without limitation the Data, format, layout, compilation, and other attributes of the Reports and any derivative works thereof (other than any Customer Marks included therein), and Customer hereby irrevocably assigns to Turbine Labs any and all rights, including all intellectual property rights, it may have in such Turbine Labs Technology.
6. Proprietary Rights Notices. Customer will neither alter nor remove any copyright notice or other proprietary rights notices that may appear on any part of the Reports, and will ensure that all copies of the Reports reproduce such proprietary notices in the form provided by the original Reports.
7. Feedback. If Customer provides any feedback to Turbine Labs concerning the Reports, other Turbine Labs Technology, or the Turbine Labs Service (including identifying potential errors or improvements), Customer hereby grants to Turbine Labs a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, transferable, non- exclusive license (with the right to grant sublicenses) in and to such feedback, and Turbine Labs is free to use the feedback without payment or restriction.
3. FEES AND PAYMENT
1. Fees and Payment Terms. Customer will pay Turbine Labs the subscription fees and any other amounts owing under this Agreement and the Order Form Amendment A,, plus any applicable sales, use, excise, or other taxes, as specified on the applicable Order Form. Unless otherwise specified in an Order Form, Customer will pay all amounts within 30 days of the upon receipt of applicable invoice.. Any amount not paid when due will be subject to interest equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including reasonable attorneys’ fees) incurred by Turbine Labs to collect any amount that is not paid when due.
2. Tokens. Customer is purchasing a subscription to the Turbine Labs platform. Customer’s usage of the platform is conditioned on the purchasing of “Tokens,” which are used to access the desired services on the Turbine Labs Platform.
4. TERM AND TERMINATION
1. Term. This Agreement will commence upon the Effective Date contained in the Order Form, and continue until the Termination date contained in the Order Form “Amendment A”. This Agreement will automatically renew (at Turbine Labs’ then-current subscription fee rates) unless a party notifies the other party in writing of its intent to not renew this Agreement at least 60 days before the termination date herein, or the Order Form “Amendment A” prohibits auto renewal.
2. Termination for Material Breach. Either party may terminate this Agreement if (a) the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days, (c) If Customer fails to timely pay any fees, Turbine Labs may, without limitation to any of its other rights or remedies, suspend Customer’s access to Reports and the Turbine Labs Service until it receives all amounts due.
3. Post-Termination Obligations. If this Agreement is terminated for any reason, Customer will pay to Turbine Labs any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and the license granted under Section 2.2 will immediately terminate. Without limiting the foregoing, Sections 1, 2.3, 2.4, 2.5, 2.6, 4.3, 5, 6, 7, 8, 9, and 10 will survive any termination or expiration of this Agreement.
5. WARRANTIES AND DISCLAIMER
1. Mutual Warranties. Each party represents and warrants to the other that: it is duly organized, validly existing and in good standing under the laws of its state of organization; this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 5, AND SOLELY TO THE EXTENT NOT PROHIBITED BY LAW, TURBINE LABS MAKES NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. TURBINE LABS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. TURBINE LABS DOES NOT WARRANT THAT THE DATA OR OTHER INFORMATION CONTAINED IN ITS REPORTS WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, OR THAT DELIVERY OF REPORTS WILL BE UNINTERRUPTED. TURBINE LABS EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE REPORTS AND THE TURBINE LABS SERVICE.
6. INTELLECTUAL PROPERTY INFRINGEMENT
1. Defense of Infringement Claims. Turbine Labs will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that the Reports or other Turbine Labs Technology infringes any third party patent or copyright if: (a) Customer gives Turbine Labs prompt written notice of the Claim; (b) Customer grants Turbine Labs full and complete control over the defense and settlement of the Claim; (c) Customer provides such assistance in connection with the defense and settlement of the Claim as Turbine Labs may reasonably request, at Turbine Labs’ expense; and (d) Customer complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing item contained in the Reports). Customer will not defend or settle any Claim without Turbine Labs’ prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Turbine Labs will have sole control over the defense and settlement of the Claim.
2. Exclusions from Obligations. Turbine Labs will have no obligation under this Section 6 for any infringement to the extent that it arises out of or is based upon use of the Reports in combination with Customer Marks or other products or services if such infringement would not have arisen but for such combination; the Reports’ or Turbine Labs Technology’s compliance with designs, requirements, or specifications provided by Customer, if the alleged infringement would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Reports by Customer outside the scope of the license granted to Customer; or any modification of the Reports not made or authorized in writing by Turbine Labs, where such infringement would not have occurred absent such modification.
3. Mitigation of Infringement Action. If Customer’s use of the Reports or Turbine Labs Service is, or in Turbine Labs’ reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 6.1, then Turbine Labs will: (a) procure the continuing right of Customer to use the Reports and Turbine Labs Service; (b) replace or modify the Reports and Turbine Labs Service in a functionally equivalent manner so that it no longer infringes; or if Turbine Labs reasonably believes that it is commercially impractical to do either (a) or (b), Turbine Labs may (c) terminate the licenses with respect to the Reports or Turbine Labs Services subject to the infringement claim and refund to Customer all unused subscription fees prepaid by Customer for such Reports or Turbine Labs Services.
4. Limited Remedy. This Section 6 states Turbine Labs’ sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Reports and Turbine Labs Service.
7. CUSTOMER INDEMNIFICATION
1. Each party agrees to indemnify, hold harmless and defend the other party and its members, managers, shareholders, directors, officers, employees and agents from and against any action, claim, demand, loss, damage, liability or expenses, including reasonable attorney’s fees and costs, arising from or related to: (i) the indemnifying party’s actual or threatened breach of any provision of this Agreement; and (ii) any gross negligence or willful misconduct of the indemnifying party, including any of its members, shareholders, directors, officers, employees or agents.
2. Defense. Customer will defend Turbine Labs from any actual or threatened third party Claim arising out of or based upon Customer’s use of the Reports and Turbine Labs Service (except to the extent Turbine Labs is required to defend or indemnify Customer under Section 6 for such Claim) or Customer's breach of any of the provisions of this Agreement. Turbine Labs will give Customer prompt written notice of the Claim; grant Customer full and complete control over the defense and settlement of the Claim; provide such assistance in connection with the defense and settlement of the Claim as Customer may reasonably request, at Customer’s expense; and comply with any settlement or court order made in connection with the Claim. Turbine Labs will not defend or settle any Claim without Customer’s prior written consent. Turbine Labs will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim .
3. Indemnification. Customer will indemnify Turbine Labs from and pay all damages, costs, and attorneys’ fees finally awarded against Turbine Labs in any Claim under Section 7.1; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Turbine Labs in connection with the defense of a Claim under Section 7.1 (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim under Section 7.1.
8. LIMITATIONS OF LIABILITY
1. Disclaimer of Consequential Damages. EXCEPT FOR A BREACH OF SECTION 9, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL TURBINE LABS’ OR CUSTOMER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO TURBINE LABS DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM FOUR HUNDRED THOUSAND DOLLARS ($400,000).
3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY TURBINE LABS TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
1. Definition. “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including but not limited to information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, membership information, customers, prospects, or other affairs), that is disclosed to a party during the term of this Agreement and that such party knows or has reason to know is confidential, proprietary, or trade secret information of the disclosing party. Confidential Information does not include any information that: was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; is acquired by the receiving party from another source without restriction as to use or disclosure; or is or becomes part of the public domain through no fault or action of the receiving party. Notwithstanding the foregoing, the parties agree that the existence of the business relationship between the parties and terms of this Agreement are confidential information of Turbine Labs.
2. Restricted Use and Nondisclosure. During and after the term of this Agreement, each party will: use the other party’s Confidential Information solely for the purpose for which it is provided; not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 9; and maintain the secrecy of, and protect from unauthorized use and disclosure, the other party’s Confidential Information to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
3. Required Disclosure. If the receiving party is required by law or by court order to disclose the disclosing party’s Confidential Information or the terms of this Agreement, the receiving party must (a) give prompt written notice of such requirement before such disclosure (to the extent practicable); (b) assist the disclosing party, at the disclosing party’s expense, in obtaining an order protecting the Confidential Information from public disclosure; and (c) disclose only to the extent legally required.
4. Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information of the other party that is in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
1. Relationship. Turbine Labs will be and act as an independent contractor of Customer, and neither party will act as the agent, representative, partner, or joint venturer of the other in the performance of this Agreement.
2. Assignment. Neither party may assign its rights, duties, or obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Turbine Labs may assign this Agreement without the Customer’s consent to a successor by way of merger, acquisition, sale of assets, or operation of law. For the purposes of this Section 10.2, the term “assignment” is deemed to include any direct or indirect transfer of this Agreement to another entity by way of merger, reorganization, consolidation or sale of all or substantially all of a party’s assets or equity securities in one transaction or a series of related transactions. In the event of any such assignment by Turbine Labs, Customer shall have the right to terminate the Agreement at any time thereafter by providing fifteen (15) days’ notice to Turbine Labs’ successor.
3. Subcontractors. Turbine Labs may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Turbine Labs remains responsible for all of its obligations under this Agreement and liable to Customer under this Agreement for the acts or omissions of its subcontractors as if they were committed by Turbine Labs.
4. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Order Form and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 10.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
5. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
6. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the state of Colorado, U.S.A., without reference to its conflict of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Arapahoe County, Colorado in connection with any action arising out of or in connection with this Agreement.
7. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
8. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.
9. Entire Agreement. This Agreement, including the Order Form “Amendment A”, is the final and complete expression of the agreement between these parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Turbine Labs has any authority to bind Turbine Labs with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized representative of each party. Neither party will be bound by, and each party specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by the other party in any receipt, acceptance, confirmation, correspondence, or otherwise, unless the former party specifically agrees to such provision in a writing signed by an authorized representative of the former party.