Last Updated: February 23, 2021
This Master Subscription Agreement (“Agreement”) is entered into by and between Sutro Labs Inc. d/b/a Census (“Census”) and the customer identified in an applicable Order Form (defined below) (“Customer”) and is effective as of the effective date of the applicable Order Form (“Effective Date”). This Agreement sets forth the terms and conditions under which Customer may use the Services (defined below) and permits Customer to purchase Services pursuant to an Order Form(s) referencing this Agreement. Each of Customer and Census is a “Party” and collectively, the “Parties”.
The Parties agree as follows:
1.1. “Administrator” means a Customer-designated End User who administers the Services account and has access to permissions and other sensitive settings.
1.2. “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party, where “control” means the ability to direct the management and policies of an entity.
1.3. “Beta Services” means products or features available to Customer on a trial, beta, early access, or similar basis.
1.4. “Census Technology” means the Services, Documentation, and Census’ intellectual property, including without limitation its trademarks, logos, and other brand features.
1.5. “Customer Data” means data and information submitted to the Services by Customer or its End Users, including data and information submitted to the Services from Third-Party Services authorized by Customer.
1.6. “Documentation” means any Census-provided written documentation and policies with respect to the Services.
1.7. “End Users” means users of Customer’s Services account. End Users may include Customer’s and its Affiliate’s employees, agents, and consultants.
1.8. “Initial Subscription Term” means the term length of the applicable Services starting on the subscription start date set forth on Customer’s first Order Form and continuing for the period set forth in such Order Form.
1.9. “Order Form” means the ordering document or page for the Services, signed or otherwise agreed upon (e.g. click-through) by the Parties.
1.10. “Renewal Term” means a subsequent term(s) following the Initial Subscription Term.
1.11. “Service Level Agreement” or “SLA” means Census’ Service Level Agreement found at www.getcensus.com/sla.
1.12. “Services” means the products and services ordered by Customer pursuant to an Order Form or otherwise provided by Census to Customer and used by Customer under this Agreement.
1.13. “SOW” means a statement of work detailing any professional services to be provided by Census to Customer.
1.14. “Subscription Term” means the Initial Subscription Term and any Renewal Term(s) for the Services.
1.15. “Suggestions” means feedback, comments, or suggestions that Customer or End Users provide to Census regarding the Census Technology.
1.16. “Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (a) the last Subscription Term has expired or (b) the Agreement is terminated as permitted herein.
1.17. “Third-Party Services” means products or services offered by a third party that interoperate with the Services for which Customer has an account and has connected the account with the Services. Third-Party Services are not controlled by Census.
2.1. Provision of Services. During the Term, Customer and End Users may access and use the Services only in full accordance with this Agreement and the Documentation.
2.3. Software. Some Services allow Customer and End Users to download Census software, which may be updated automatically (“Software”). Census grants Customer a limited, non-exclusive right during the Term to use such Software only to access the Services.
2.4. Changes. Census may, at its discretion, modify the Services from time to time. Census will notify Customer in advance of any impending modifications that may reasonably result in a material reduction in Services functionality.
2.5. Support. Census will provide standard support for the Services to Customer at no additional charge.
2.6. SLA. To the extent Customer’s Order Form explicitly states the applicability of the SLA, Census will provide the Services in accordance with the SLA.
3.1. Customer Responsibilities. Customer will be responsible for any use of the Services through its account, including all use of the Services by End Users. Customer is responsible for designating Administrators for its Services account, maintaining updated Administrator contact information, and managing access to Administrator accounts. Customer is responsible for maintaining the confidentiality of account credentials used by End Users to access the Services. Customer may not permit sharing of End User accounts and passwords.
3.2. Compliance. Customer and End Users may only use the Services in accordance with this Agreement and the Documentation. Customer will obtain any consents and comply with any laws necessary to allow the operation of the Services and to permit Census to process, store, transfer, and dispose of Customer Data.
3.3. Usage Limits. Use of the Services may be subject to usage limits set forth in Customer’s Order Form or in the Documentation.
3.4. Restrictions. Customer will not (and will not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (b) modify or create derivative works based on the Services, (c) copy, rent, lease, distribute, time-share the Services or otherwise use the Services for the benefit of a third party, (d) remove or alter proprietary notices from the Services, (e) use the Services for the purpose of developing any other product or service competitive with the Services, (f) breach or circumvent any security or authentication measures of the Services, (g) interfere with or disrupt any part of the Services, (h) submit viruses, worms, Trojan horses, corrupted files, or other destructive content into the Services, or (i) use a robot or other automated means to access the Services (collectively, the “Restrictions”).
3.5. Suspension. Census may suspend Customer’s or End User’s right to use the Services if (a) Customer or End User’s use of the Services poses a security risk to. or may adversely affect, the Services, Census’ systems and infrastructure, or those of a third party, (b) Customer or End User’s use of the Services may, in Census’ reasonable opinion, subject Census to potential liability, or (c) Customer is in breach of this Agreement. Census will use commercially reasonable efforts to provide prompt notice of a suspension and narrowly tailor the suspension. Following resolution of the issues giving rise to the suspension, Census will promptly reinstate access to the Services.
3.6. Data Exchange. The Services allow Customer to import data from and export data to Third-Party Services. By using the Services, Customer authorizes Census to transfer, store, and process Customer Data from End Users and Customer’s Third-Party Services accounts on its behalf. By using the Services, Customer also authorizes Census to export Customer Data to Customer’s Third-Party Services accounts on its behalf. If Customer uses any Third-Party Service, Census will not be responsible for any act or omission of the Third-Party Service, including the Third-Party Service’s access to, use, provision, modification, or deletion of Customer Data. Census does not warrant or support any Third-Party Service. Customer is responsible for complying with licenses, the applicable terms and conditions, and paying fees for Third-Party Services.
4.1. Reservation of Rights. Except as otherwise explicitly stated herein, Census and its licensors own and reserve all right, title, and interest in and to the Census Technology, and Customer and its licensors own and reserve all right, title, and interest in and to the Customer Data.
4.2. Customer License. During the Term, Customer grants Census a limited, non-exclusive right to use Customer Data as reasonably necessary for Census to provide the Services.
4.3. Suggestions. Customer agrees that any Suggestions it provides Census shall be owned exclusively by Census, and Census may, in its sole discretion and for any lawful purpose, (a) use, modify, and incorporate the Suggestions into Census’ Technology, and/or (b) license or sublicense the Suggestions, all without any obligation to Customer.
4.4. Customer List. Census may use Customer’s name, logo, and marks to identify Customer as a Census customer on Census’ website and in other marketing materials. Customer also agrees that Census may verbally reference Customer as a customer of Census.
4.5. Representations and Warranties. Each Party represents and warrants: (a) that it has full right and authority to enter into this Agreement; (b) that it is not a Party to any other Agreement that conflicts with its ability to enter into and perform its obligations under this Agreement; (c) that it will, at all times, comply with applicable law with respect to its performance under this Agreement; and (d) that it has all rights and authority to make the grant of rights and licenses to the other Party herein.
5.1. Fees. Customer will pay Census the fees for the Services set forth in the applicable Order Form. All payments are due in U.S. dollars unless otherwise indicated on the Order Form or invoice. Customer is responsible for providing complete and accurate billing and contact information to Census and updating Census of any changes thereto. Except as otherwise explicitly stated herein, all fees paid are non-cancelable and non-refundable. Fees may not be subject to set-off.
5.2. Invoicing & Payment. Unless otherwise set forth in the Order Form or any SOW: all fees (a) will be invoiced in advance, and (b) are due and payable within thirty (30) days from invoice date. If Customer provides Census with credit card information for payment, Customer acknowledges that an invoice may not be sent and Customer authorizes Census to charge the credit card for the Services listed in the Order Form or on the Census billing webpage for the Subscription Term or for additional subscriptions added to the Subscription Term. If the Customer requires the use of a purchase order or purchase order number, the Customer (y) must provide the purchase order number at the time of purchase, and (z) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are void.
5.3. Late Payments. Past due amounts not subject to a good-faith dispute are subject to a finance charge of 1.5% per month (or the highest rate permitted by law) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Census in collecting past due amounts. Census may suspend or terminate the Services in the event fees are past due, and require full payment of fees before Services are reinstated.
5.4. Taxes. Customer is responsible for all taxes, except those directly relating to Census’ net income, gross receipts, or capital stock. Census will invoice Customer for sales tax when required to do so, based on the billing address provided by Customer to Census, and Customer will pay the tax unless Customer provides Census with a valid tax exemption certificate authorized by the appropriate taxing authority.
5.5. Future Functionality. Customer agrees that it has not relied on the availability of any future functionality of the Service or any other future product or service in executing this Agreement or any Order Form. Customer acknowledges that information provided by Census regarding future functionality should not be relied upon to make a purchase decision.
6.1. Agreement Term. The Agreement will remain in effect for the Term.
6.2. Subscription Terms. Unless otherwise set forth in an Order Form, subscriptions will automatically renew for additional periods equal to the shorter of the expiring Subscription Term or twelve (12) months, unless either Party gives the other notice of non-renewal at least thirty (30) days before the end of the Subscription Term. Census will provide notice of any Services price increases at least sixty (60) days in advance of any renewal.
6.3. Termination. Either Party may terminate this Agreement if (a) the other Party is in material breach of the Agreement and fails to cure that breach within thirty (30) days after receipt of written notice, or (b) the other Party ceases its business operations or becomes subject to insolvency proceedings. Census may also terminate the Agreement if it has the right to suspend the Services under Section 3.5 or in order to comply with applicable law.
6.4. Effect of Termination. In the event this Agreement expires or is terminated, then (a) the rights granted by one Party to the other Party will cease immediately except as otherwise set forth in this Section, and (b) the following Sections will survive: 1 (Definitions), 4 (Intellectual Property Rights), 5 (Fees & Payment), 6.4 (Effect of Termination), 7 (Confidentiality), 8 (Disclaimers), 9 (Indemnity), 10 (Limitation of Liability), 11 (Disputes), and 12 (General Provisions).
7.1. Definition of Confidential Information. “Confidential Information” means any business or technical information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) under this Agreement that is marked as confidential or would normally be considered confidential to a reasonable person given the nature of the information and the circumstances of the disclosure. This Agreement, Order Forms, and the Census Technology is Census Confidential Information, and Customer Data is Customer Confidential Information. Confidential Information will not include any information that (a) is or becomes public through no fault of the Receiving Party, (b) was known to the Receiving Party prior to receipt, (c) is obtained by the Receiving Party from a third party not under an obligation of confidentiality, or (d) is independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
7.2. Obligations. The Receiving Party will use reasonable care to (a) not use the Disclosing Party’s Confidential Information for any purpose outside of, and as permitted by, the scope of this Agreement, and (b) except as authorized or directed by the Customer to provide Confidential Information to a Third-Party Service, limit access to the Disclosing Party’s Confidential Information to its and its Affiliates’ employees and contractors who have a need to know the Confidential Information t and who have agreed to confidentiality provisions with the Receiving Party at least as stringent as those contained herein. Notwithstanding the foregoing, Receiving Party shall remain liable for all acts and omissions of those to whom it discloses the Confidential Information.
7.3. Compelled Disclosure. Receiving Party may disclose Confidential Information when required by law or regulation, provided that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent legally permitted, and reasonable assistance at the Disclosing Party’s request and cost to contest or limit the disclosure. If the Receiving Party is compelled to disclose the Confidential Information, the Receiving Party will disclose the minimum extent of Confidential Information necessary to comply with the law.
8.1. General. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS”, AND CENSUS AND ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS (A) MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATORY OR OTHERWISE REGARDING THE SERVICES OR ANY OUTPUT FROM THE SERVICES, AND (B) DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE SERVICES WILL BE TIMELY, UNINTERRUPTED, OR ERROR-FREE. ADDITIONALLY, CENSUS WILL NOT BE LIABLE FOR ANY THIRD-PARTY SERVICE.
8.2. Beta Services. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that (a) Customer has the sole discretion whether to use any Beta Services, (b) Beta Services may not be supported by Census and may be changed at any time by Census, including in a manner that reduces material functionality, (c) Beta Services may not be readily available or reliable, (d) Beta Services may not be subject to the same security requirements as the Services, generally, and (e) Census provides Beta Services “as-is” and will have no liability whatsoever arising out of or in connection with Beta Services.
9.1. By Customer. Customer will indemnify, defend, and hold harmless Census from and against all damages, liabilities, costs, and expenses (including reasonable attorney’s fees) (“Losses”) arising from a third-party claim, suit, cause of action, or controversy (“Claim”) regarding (a) Customer Data when used by Census as permitted hereunder, (b) Third-Party Services, or (c) Customer’s use of the Services in breach of the Restrictions.
9.2. By Census. Census will indemnify, defend, and hold harmless Customer from and against all Losses arising from a Claim regarding an allegation that the Census Technology when used by Customer as permitted hereunder, infringes or misappropriates any U.S. intellectual property right of such third party. In no event will Census have obligations or liability under this Section arising from: (a) use of the Services in a modified form or in combination with materials not furnished by Census, (b) Services performed according to Customer specifications, and (c) any content, information, or data provided by Customer, including Customer Data. For any claim covered by this Section, Census may, at its election (i) procure for Customer the right to continue using the Services, (ii) modify or replace the allegedly infringing portion of the Services such that they are non-infringing but functionally equivalent, or (iii) terminate the allegedly infringing portion of the Services, or this Agreement and provide Customer with a pro rata refund of prepaid fees for the affected Services that would have been rendered after the termination date. This Section 9.2 states Customer’s exclusive remedy and Census’ sole liability with respect to a Claim described herein.
9.3. General. The Party seeking indemnification (“Indemnitee”) will promptly notify the other Party (“Indemnitor”) of the Claim and provide reasonable cooperation to the Indemnitor at its request and expense. Indemnitor will have full control and authority over the defense of the Claim, including without limitation the selection of counsel, provided that: (a) any settlement requiring Indemnitee to admit liability or to pay any money will require the Indemnitee’s prior written consent, such consent not to be unreasonably withheld or delayed, and (b) Indemnitee may join in the defense of the Claim with its own counsel and at its own expense.
10.1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY NOR ITS AFFILIATES, SUPPLIERS, AND DISTRIBUTORS WILL BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR (B) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, OR SERVICE INTERRUPTION, OR THE COST OF SUBSTITUTE SERVICES, REGARDLESS OF THE LEGAL THEORY AND REGARDLESS OF WHETHER THE PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF A LIMITED REMEDY SET FORTH IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2. Liability Cap. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EXCLUDED CLAIMS, CENSUS AND ITS AFFILIATES’, LICENSORS’, AND DISTRIBUTORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO CENSUS DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
10.3. Excluded Claims. “Excluded Claims” means (a) either Party’s gross negligence or willful misconduct, (b) either Party’s indemnification obligations in Section 9, or (c) Customer’s breach of the Restrictions. Additionally, in no event shall this Section 10 limit Customer’s obligation to pay undisputed fees under this Agreement.
11.1. Informal Resolution. Census wants to address Customer’s concerns and requests that Customer bring issues that may lead to a dispute to our attention immediately. Before filing a claim, Census and Customer agree to attempt to resolve the dispute by providing written notice to the other Party and having the appropriate executives attempt to resolve the dispute through communication and discussion. After fifteen (15) days, if the attempted resolution fails, either Party may bring a formal proceeding.
11.2. Arbitration Agreement. Census and Customer agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as further set forth below. Any dispute will be administered by the American Arbitration Association under its Commercial Arbitration Rules by one arbitrator. The arbitration shall take place in San Francisco, California in the English language. Either Party may bring a lawsuit in a court of competent jurisdiction for claims for injunctive relief to stop unauthorized use or abuse of the Services, breach of Confidential Information, or claims of intellectual property infringement, without first engaging in the informal resolution process described in Section 11.1. Census and Customer consent to the exclusive personal jurisdiction and venue of the federal or state courts located in San Francisco County, California.
12.1. Entire Agreement. All attachments to the Agreement, SOWs, and Order Forms executed by the Parties are hereby incorporated into the Agreement by reference. This Agreement constitutes the entire agreement between Customer and Census with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreements whether written or oral, including any non-disclosure agreements. Except as otherwise set forth in this Agreement, no modification, amendment, or waiver of any provision of this Agreement will be effective unless set forth in writing and signed by the Parties. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: Order Form, the SOW, the Agreement, and the Documentation.
12.2. Governing Law. This Agreement will be governed by the laws of the State of California without regard to its conflicts of laws principles.
12.3. Notices. Notices must be sent by first class mail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable Administrator account email address and are deemed given when sent. Notices to Census must be sent to Sutro Labs Inc., Attn: Legal Department, 545 Sutter St Ste 405, San Francisco CA 94102, with a copy emailed to firstname.lastname@example.org.
12.4. Assignment. Neither Party may assign or transfer this Agreement or any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other Party’s prior written consent. Notwithstanding the foregoing, Census may assign this Agreement, in whole or in part, upon notice but without the requirement of consent from Customer, to a Census Affiliate or in connection with a merger or sale of all or substantially all of its assets. Subject to the restrictions in this Section, this Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Any other attempt to transfer or assign is void.
12.5. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, joint venture, or agency relationship between the Parties.
12.6. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.7. Construction. Any ambiguity in the Agreement will be interpreted equitably without regard to which Party drafted the Agreement. “Including” and “include” will be construed to mean “including without limitation.”
12.8. Force Majeure. Neither Party will be liable for inadequate performance or delay in performing its obligations under this Agreement to the extent such inadequate performance or delay is caused by a condition (ee.g., natural disaster, act of war or terrorism, labor disputes, governmental action, public utilities failures, and Internet disturbances) that are beyond such Party’s reasonable control.
12.9. Waiver. No failure or delay by either Party in exercising a right under this Agreement will constitute a waiver of that right. A waiver of a default is not a waiver of any subsequent default.
12.10. Severability. If a court of competent jurisdiction finds any term of this Agreement to be unenforceable, the unenforceable term will be modified to reflect the Parties’ intention and only to the extent necessary to make the term enforceable. The remaining provisions of the Agreement will remain in effect.
12.11. Export Compliance. The Services may be subject to export restriction laws and regulations in the U.S. and any other applicable jurisdiction and Customer is responsible for compliance regarding Customer’s and its End Users’ use of the Services. Customer will not permit End Users to use the Services from a U.S. embargoed country.