Purchase and use of the Software Services (as defined below) and any professional services covered by the Order Form (as defined below) are subject to these Tubular Subscription Terms. Any conflict between these Tubular Subscription Terms and the Order Form or any other terms or conditions incorporated into the Agreement by reference will be resolved according the order of precedence described in the Order Form.
1. DEFINITIONS. Any capitalized terms used but not defined in these Tubular Subscription Terms will have the meanings (if any) specified in the Order Form. In addition, the following definitions apply.
1.1. “Agreement” means the software services agreement between Tubular Labs Inc. and the Customer, consisting of the Order Form and the attachments and other terms and conditions that it incorporates by reference (including these Tubular Subscription Terms)
1.2. “Authorized User” means an individual employee of Customer who has been assigned unique credentials to access and use the Software Services, whether or not that individual is accessing or using the Software Services at any particular time.
1.3. “Customer Data” means Customer’s proprietary data, if any, that its Authorized Users upload or input into the Platform (if the purchased subscription plan features Customer data ingestion).
1.4. “Order Form” means the Tubular Labs order form executed by Customer and Tubular Labs that specifies the subscription plan being purchased by the Customer and incorporates these Tubular Subscription Terms.
1.5. “Software Services” means the web-based services included in the Customer’s subscription plan, as specified in the Order Form and any attached Software Services Description, that are facilitated by Tubular Labs’ video intelligence software platform.
2. SUBSCRIPTION SERVICES
2.1. Authorization. Subject to Customer’s compliance with the terms and conditions of this Agreement, Tubular Labs will provide Customer’s Authorized Users with access to and use of the Software Services, during the Customer’s paid-up subscription period set forth in the Order Form (and any Renewals under Section 5.1), solely for Customer’s internal business purposes related to the measurement and analysis of online video audience behavior in accordance with Tubular Labs’ relevant end-user documentation.
2.2. User Limits. The total number of Authorized Users is limited to the number specified in the package for which Customer has paid all applicable fees as set forth in this Agreement. Customer will not permit access to or use of the Software Services by anyone other than such Authorized Users. Authorized Users may not share their access credentials with any other individuals.
2.3. Usage Limits. Customer’s and its Authorized Users’ use of the Software Services is further subject to the usage limitations indicated in the Order Form and any attached Software Services Description (for example, limits on the number of exports or saved searches).
2.4. Customer Responsibilities. Customer is responsible for (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with Customer’s account, (ii) all activities that occur with respect to Customer’s account, (iii) its and its Authorized Users’ use of the Software Services and compliance with this Agreement, and (iv) all Customer Data.
2.5. Restrictions. Customer will not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Software Services or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Software Services, or use any of the Software Services for time sharing or similar purposes for the benefit of any third party; (iii) incorporate data obtained from the Software Services into, or retransmit or otherwise distribute such data as part of or in connection with, any other software solution, data platform, or other product, service, or technology; (iv) remove any copyright or proprietary notices contained in the Software Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Software Services; (vi) access the Software Services via any bot, web crawler or non-human user; or (vii) access or use (or permit a third party to access or use) the Software Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Software Services or for any other benchmarking or competitive purposes.
2.6. Attribution. If Customer uses any data derived from the Software Services in any confidential sales or corporate materials not meant for public consumption, Customer will conspicuously credit Tubular Labs as the source of the data using the phrase “Data provided by Tubular Labs” or a comparable attribution approved by Tubular Labs. Customer must obtain written approval from Tubular Labs before using data derived from the Software Services in marketing or other materials designed for public consumption. In digital media, the attribution shall also include a hyperlink to www.tubularlabs.com.
2.7. Service Updates. Tubular Labs may update the Software Services from time to time, including by modifying, adding and/or discontinuing particular features or components of the Software Services.
3. PLATFORM AND DATA SECURITY
3.1. Security Measures. Tubular Labs will employ commercially reasonable environmental, safety and facility procedures, data security procedures and other safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of the Software Services and any Customer Data stored on Tubular Labs’ servers.
3.2. Notification. Tubular Labs will use commercially reasonable efforts to promptly notify Customer of any material breach of security with respect to any Customer Data.
4. PROFESSIONAL SERVICES
4.1. Provision of Services. If indicated in the Order Form, and subject to Customer’s timely payment of all corresponding fees, Tubular Labs will provide Customer with the professional services, if any, specified in the Order Form (and any Project Plan attached thereto) in connection with Customer’s use of the Software Services. Customer will provide such cooperation and assistance as Tubular Labs may reasonably request in order to facilitate the performance of any such professional services.
4.2. Contacts. Each party will designate in writing the individual who will be its primary point of contact for matters relating to any professional services to be performed thereunder. A party may designate replacement contacts by written notice to the other party.
4.3. Access to Customer Facilities. If any professional services are to be performed on Customer’s premises, or involve access to Customer’s secure networks or systems, the personnel performing those services will comply with such security, safety and confidentiality policies as Customer may reasonably specify in writing, and Tubular Labs will cooperate with Customer to replace any such personnel whom Customer reasonably determines to be unfit for access to its facilities or performance of the professional services.
4.4. Deliverables. If any professional services involve the delivery of reports, documents or other deliverables, Customer will be free to use such deliverables for its internal business purposes, subject to the applicable confidentiality provisions of this Agreement. The parties acknowledge, however, that the professional services do not involve any custom development, and will not be construed as transferring (or as requiring Tubular Labs to transfer) to Customer any intellectual property rights in any deliverables or other work product.
5. TERM AND TERMINATION
5.1. Duration and Renewal. Unless terminated as provided below, this Agreement will remain in effect throughout the subscription term specified in the Order Form, and will automatically renew for successive one-year periods (each, a “Renewal”) unless either party gives the other party written notice of non-renewal at least thirty (30) days in advance.
5.2. Termination. A party may terminate this Agreement for a material breach by the other party, which remains uncured more than 30 days after receiving written notice of the breach. In addition, Tubular Labs may terminate this Agreement 5 business days following Customer’s receipt of written notice that it is late in paying an invoice.
5.3. Survival. The following provisions will survive expiration or termination of this Agreement: Sections 0, 5.3, 6 (to the extent of any outstanding payments), 7, 8, 10, 11, 12 and 14.
6.FEES AND PAYMENT
6.1. Fees. In consideration for Tubular Labs providing the Software Services and any agreed-upon professional services, Customer shall pay to Tubular Labs the corresponding fees set forth in this Agreement.
6.2. Renewal Fees. For each subscription Renewal, Customer will pay for the Software Services consistent with the subscription-fee rates specified in the Order Form or, if applicable, such other rates as Tubular Labs may establish by written notice to Customer at least 60 days prior to the Renewal. If the number of individuals accessing or using the Software Services under Customer’s account exceeds the number of paid-for Authorized Users, then (without limiting Tubular Labs’ other remedies) the Renewal fee will be increased to cover the additional users at the applicable per-user rate.
6.3. Invoices; Payment. Subscription fees for the Software Services will be invoiced in advance at the beginning of the subscription period and each Renewal. Fees for any professional services will be invoiced according to the schedule set forth in the Order Form or Project Plan as applicable. Each invoice is due and payable upon receipt by Customer.
6.4. Taxes. The fees specified in this Agreement are exclusive of taxes, duties, levies, tariffs, withholdings, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than United States federal and state income taxes. If Customer pays any withholding or similar tax under the laws of a country outside of the U.S. based on any payments to Tubular Labs under this Agreement, Customer will increase the fees otherwise due as needed to offset any impact of the withholding or other tax on Tubular Labs. Upon Customer’s request (specifying the withholding rate or other necessary information), Tubular Labs will itemize in its invoice any Taxes or offsetting fee increases payable by Customer to Tubular Labs under this Section.
7.1. Tubular Labs IP. As between Tubular Labs and Customer, the Software Services and all software and other technologies embodied in or used to provide the Software Services, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Tubular Labs.
7.2. Customer Data. As between Tubular Labs and Customer, the Customer Data, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Customer. Unless otherwise agreed in writing, Tubular Labs may use the Customer Data only for purposes of providing services to Customer.
8.1. Obligations. “Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Agreement that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly granted under this Agreement. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
8.2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
9. SERVICE LEVEL AGREEMENT. If Customer’s subscription includes service-level commitments, and the Order Form accordingly specifies that Tubular Labs’ Service Level Agreement is part of this Agreement, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached to or referenced in the Order Form. The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and Tubular Labs’ entire obligation, with respect to any service-level violation.
10. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE), THE SOFTWARE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TUBULAR LABS DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11.1. By Tubular Labs. Tubular Labs will indemnify, defend and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer to the extent based upon an allegation that the Software Services, as furnished by Tubular Labs hereunder and used by Customer within the scope of this Agreement, infringe any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF TUBULAR LABS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE SERVICES. Tubular Labs shall have no liability under this Section 11.1 to the extent that any Claims are based on any combination of the Software Services with products, services, methods, content or other elements not furnished by Tubular Labs, or any use of the Software Services in a manner that violates this Agreement or the instructions given to Customer by Tubular Labs.
11.2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, Tubular Labs may, in its discretion, seek to mitigate the impact of such Claim by modifying the Software Services to make them non-infringing, and/or by suspending or terminating Customer’s use of the Software Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Tubular Labs will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).
11.3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Tubular Labs against any Claims arising from or related to the Customer Data or Customer’s use of the Software Services in violation of this Agreement or any applicable Tubular Labs end-user documentation.
11.4. Procedures. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.
12. LIMITATION OF LIABILITY
12.1. Wavier of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 6, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO TUBULAR LABS UNDER THIS AGREEMENT FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.
12.3. Exceptions. Nothing in this Section 12 shall limit or waive a party’s: (i) liability for any breach of its confidentiality obligations under this Agreement; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; or (iii) indemnification obligations under Section 11.
13.1. Press Releases. Neither party will issue any press release or similar publicity regarding the parties’ relationship under this Agreement without the other’s written approval.
13.2. Identification of Customer. Tubular Labs may identify Customer, by name and (upon Customer’s approval) by logo, as a customer of the Software Services on Tubular Labs’ website and other marketing materials.
13.3. Case Study. Provided Customer is satisfied with the Software Services, Tubular Labs may develop a case study for public dissemination and marketing use by Tubular Labs describing the benefits Customer has derived from the Software Services. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.
14.1. Assignment. Customer may not assign this Agreement without Tubular Labs’ prior written consent, which will not be unreasonably withheld. Any attempt by Customer to assign this Agreement, without such consent, will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
14.2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.
14.3. Export Compliance. Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Software Services, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations.
14.4. Government Rights. If Customer is the U.S. government or any agency or other division thereof, Tubular Labs’ services are furnished under this Agreement as a “commercial item,” as that term is defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to the services (and to any associated software, technical data or other materials) are limited to those expressly granted in this Agreement.
14.5. Severability. If any part of this Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
14.6. Waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.
14.7. Notices. All notices permitted or required under this Agreement shall be in writing, will reference this Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.
14.8. Governing Law. This Agreement will be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.
14.9. Revisions to Subscription Terms. Tubular Labs may change these Tubular Subscription Terms and its policies at any time. Tubular Labs will post any such changes to our websites and Customer will be able to access them through the same link it used before. Unless otherwise agreed by the parties, any such changes will take effect for the Software Services upon the next Renewal.
14.10. Entire Agreement. Any amendment or modification to the Agreement must be in writing signed by both parties. Unless otherwise provided in a separate written agreement between the parties, this Agreement constitutes the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof.