Last Revised: January 24, 2022
“Acceptable Use Policy” means the Spice AI policy described in Section 11.
“Affiliate” means any person, partnership, joint venture, corporation or other form of venture or enterprise, domestic or foreign, including subsidiaries, which directly or indirectly Control, are Controlled by, or are under common Control with a party.
“Confidential Information” has the meaning ascribed to it in Section 6.1.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and operating policies of the entity in respect of which the determination is being made, through the ownership of more than fifty percent (50%) of its voting or equity securities.
“Customer” means the entity identified as such in the applicable Sales Order.
“Customer Data” means any data or other information owned or controlled by Customer which is provided by Customer to Spice AI in connection with the Services.
“Customer Materials” means any software, documentation, Customer Data, hardware, tools, trademarks, service marks or brands, or any other materials, information or intellectual property owned, leased, licensed or used by Customer, and that Customer delivers to Spice AI or to which Customer provides Spice AI with access, or that Customer requires Spice AI to use for purposes of the Services.
“Documentation” means the software user and administrator manuals provided to Customer by Spice AI regarding use of the Spice AI Technology, including additional, updated or revised documentation, if any.
“Spice AI Methodology” means Spice AI’s processes, methods, techniques and know-how, relating to the Spice AI Technology or to time-series data management solutions.
“Spice AI Software” means the Spice AI computer software applications, tools and other programs specified in a Sales Order.
“Spice AI Technology” means the Site, the Spice AI Software and its Documentation, together with other computer software programs, networks and equipment that Spice AI uses to make the foregoing available to its customers as an on-line subscription offering.
“Spice AI Technology Subscription Services” means the Spice AI Technology service offerings to which Customer subscribes, as specified in the applicable Sales Order.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Personal Information” means personally identifiable information of an individual person that is required to be protected by applicable law.
“Professional Services” means the professional services (typically consulting and configuration) to be performed by Spice AI that are specified in the applicable Sales Order. Professional Services are not required for use of the Subscription Services. Terms governing Professional Services are specified in the ‘Additional Terms of Service – Professional Services Terms’ referenced in Section 12.
“Sales Order Effective Date” means, with respect to each Sales Order, (i) the effective date specified in the Sale Order or, if none, then the date on which the last of Spice AI and Customer executes the Sales Order, (ii) in the case of an online checkout form, the date on which Spice AI enters the completed online checkout form into its system, or (iii) if Customer purchases Services through a Channel Partner, upon Spice AI’s acceptance of the Sales Order following its submission by the Channel Partner.
“Services” means the Subscription Services and the Professional Services.
“Site” means a location designated by Spice AI which may include a subpage within Spice AI’s website (spiceai.io) or other location or method of providing access to Customer to the Spice AI Content or the Spice AI Technology.
“Subscription Services” means the Spice AI Technology Subscription Services.
“Subscription Term” has the meaning ascribed to it in Section 8.
“Term” means the Initial Term and any Renewal Terms, as more fully described in Section 8.
“User” means any individual who is an employee or independent contractor of Customer or its Affiliates or, to the extent providing services to Customer, is an employee of a Third-Party Service Provider, and who is authorized by Customer to use the Spice AI Technology pursuant to the applicable Sales Order.
The following words will be interpreted as designated: (i) “or” connotes any combination of all or any of the items listed; (ii) where “including” is used to refer to an example or begins a list of items, such example or items will not be exclusive; (iii) “specified” requires that an express statement is contained in the relevant document; and (iv) “will” is, unless the context requires otherwise, an expression of command, not merely an expression of future intent or expectation.
2.3 Customer’s Account. Customer will designate one of its employees to be the point of contact with Spice AI for the management and support of the Spice AI Technology Subscription Services (“Administrator”), and who will be responsible for establishing and managing Customer’s use of the Spice AI Technology Subscription Services (“Account”), including the creation of usernames and passwords to access Customer’s Account. Customer is solely responsible for maintaining the status of its User base. Customer will safeguard all User authentication credentials in its possession or under its control. Customer is responsible for all activities that occur under the Account. Customer will notify Spice AI immediately if Customer believes an unauthorized third party may be using Customer’s Account or if Customer’s Account information is lost or stolen.
2.4 Spice AI’s Responsibilities. During the Subscription Term, Spice AI will use commercially reasonable efforts to make the Spice AI Technology Subscription Services available 24 hours a day, 7 days a week, except for planned downtime (of which Spice AI will give at least 48 hours’ notice and which Spice AI will schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time. Spice AI may in addition perform unscheduled emergency maintenance for the security or performance of the Spice AI Technology Subscription Services; Spice AI will use commercially reasonable efforts to provide at least 30 minutes prior notification of emergency maintenance that Spice AI believes will cause downtime.
3.3 Ownership of Intellectual Property Rights.
3.4 Restrictions. Customer will not: (i) except to the extent, if any, permitted by applicable law or required by Spice AI’s licensors, reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code from any of the Spice AI Technology; (ii) reproduce, modify, or prepare derivative works of any of the Spice AI Technology or Documentation; (iii) distribute or display any of the Spice AI Technology or Documentation other than to Customer’s Users; or (iv) share, rent or lease the Spice AI Technology Subscription Services, or use the Spice AI Technology Subscription Services to operate any timesharing, service bureau or similar business. Some components of the Spice AI Technology may also be governed by applicable open source software licenses located in the software component’s source code. Customer’s license rights with respect to these individual components are defined by the applicable open source software license, and nothing in this Agreement will restrict, limit, or otherwise affect any rights or obligations Customer may have, or conditions to which Customer may be subject, under such open source software licenses.
3.5 Suggestions. If Customer provides Spice AI with any suggested improvements or enhancements to the Services or Spice AI Technology (“Suggestions”), then Customer also grants Spice AI a non-exclusive, perpetual, irrevocable, paid-up, royalty-free, worldwide, transferable license, with right to sublicense, to make, have made, sell, offer for sale, use, import, reproduce, distribute, display, perform, and make derivative works of the Suggestions.
4.1 Subscription Plans. Customer’s subscription plan for the Subscription Services is specified in the applicable Sales Order. Customer may not reduce Customer’s commitment under the Subscription Services subscription plan specified in the Sales Order during the Services Subscription Term. Customer is not entitled to any refund of fees paid or relief from fees due if the volume of Subscription Services Customer actually uses is less than the volume Customer ordered, and Customer may not carry over any of the unused volume to Customer’s next Subscription Term. If Customer wishes to reduce the volume of a Subscription Services subscription plan for a Renewal Term, then Customer must notify Spice AI at least 60 days before the start of the Renewal Term for the applicable Subscription Services; the reduction will be effective at the start of the Renewal Term.
4.2 Subscription Fees. Except as expressly stated otherwise in any Sales Order, Spice AI will invoice Customer for Subscription Services in advance, at the rates or for the fees specified in the applicable Sales Order. If Customer subscribes via Spice AI’s online checkout, customer will pay the Subscription Fees by credit card.
4.5 Records and Inspection; Audit.
4.5.1 Spice AI Records. Spice AI will maintain reasonably complete and accurate accounting records to substantiate Spice AI’s variable charges and expenses hereunder. Spice AI will retain such records for a period of at least two years from the date of the invoice applicable to such charges and/or expenses. Upon not less than 45 days prior written notice, an independent certified public accountant appointed by Customer may inspect, copy and audit such records at Spice AI’s corporate offices.
5.1 Warranties. Spice AI warrants to Customer that:
5.1.1 Performance Warranty. During the Subscription Term, the Spice AI Technology made available to Customer for Customer’s use will conform in all material respects to its applicable specifications set forth in the Documentation.
5.1.3 Infringement. Spice AI’s provision to Customer of the Subscription Services does not infringe any third party patent existing under the laws of the United States or Canada, or infringe any third party copyright, trademark or service mark, or result from misappropriation by Spice AI of any third party’s trade secrets (collectively, an “Spice AI Infringement”).
5.2 Performance Remedy. If any Spice AI Technology fails to conform to the warranty set forth in Section 5.1.1 and Customer provides written notice of the non-conformance to Spice AI within the applicable Subscription Term then, as Customer’s exclusive remedy and Spice AI’s sole obligation: Spice AI will either repair or, at its option, replace the non-conforming Spice AI Technology with conforming Spice AI Technology or, if Spice AI is unable to correct the non-conformance within 30 days of receipt of such written notice from Customer, Customer may terminate the applicable Subscription Services insofar as they apply to the non-conforming Spice AI Technology, and Spice AI will refund to Customer a pro-rata amount of any Subscription Services fees prepaid to Spice AI and applicable to the unutilized portion of the Subscription Term for the terminated Subscription Services.
5.6 Disclaimer Of Implied Warranties. Spice AI makes no representation or warranty in connection with the Spice AI Technology or Services, except as expressly so set forth in this Section 5 or the Additional Terms of Service. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS SPECIFICALLY WARRANTED IN THIS SECTION 5 OR THE ADDITIONAL TERMS OF SERVICE, EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OR IMPLIED OBLIGATION TO INDEMNIFY FOR INFRINGEMENT, ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, AND ANY STATUTORY REMEDY.
6.2 Exclusions. Except with respect to Personal Information, Confidential Information does not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party; or (iv) has been independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.3 Disclosure Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information or Personal Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information or Personal Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information or Personal Information.
6.5 Data Processing and Personnel Approvals. Except to the extent otherwise specified in the applicable Sales Order, Customer is solely responsible for obtaining and will obtain all necessary consents, licenses and approvals for the processing of any Customer Data as part of the Services.
6.6 Protection of Customer Data.
6.6.3 Encryption. Spice AI will encrypt Customer Data in Spice AI’s possession or under its control when transmitted by Spice AI, using any then current industry standard encryption technologies. Notwithstanding the foregoing, unless specified otherwise in the applicable Sales Order, Spice AI is not required to encrypt Personal Information which is stored on servers located in Spice AI’s or its service providers’ data centers with a SSAE-16 (or similar) certification.
6.6.5 Breach Notification. Spice AI will notify Customer of unauthorized access to, or use or disclosure of Customer Data within Spice AI’s custody and control within one business day of Spice AI’s confirmation of the same; each party will reasonably cooperate with the other with respect to the investigation and resolution of such unauthorized access, use or disclosure. Upon confirmation of any vulnerability or breach of Spice AI’s security affecting Customer Data in Spice AI’s custody and control, Spice AI will modify its processes and security program as necessary to mitigate the effects of the vulnerability or breach upon such Customer Data. Customer will notify Spice AI of any security compromise affecting its Users’ authentication credentials used to access the Spice AI Technology, and any Customer systems or networks that interoperate with or transmit data to the Spice AI Technology, within one business day of confirmation of the same.
7.1 Beta; Preview. Customer understands and agrees that the Services and Products are provided with early access and there may be some issues and use cases that Spice AI will use best efforts to resolve in stride. In consideration of receiving the opportunity to test the Products and Services, Customer hereby releases and holds harmless the members, officers, agents and employees of Spice AI and its Affiliates, and all persons participating in the manufacturing or development of the Product (“Released Parties”) from any and all liability, claims, demands or causes of action that Customer may hereafter have for injuries or damages arising out of use of the Product. Customer specifically release the Released Parties from any responsibility for their negligence in the planning, conducting or supervising the use of the Product or Services.
8.2 Termination for Convenience. Either party may terminate any Subscription Services effective upon expiration of the then current Subscription Term by providing the other party prior written notice of termination of at least the following length: if Customer is the terminating party, at least 30 days; and if Spice AI is the terminating party, at least 90 days.
8.3 Subscription Term and Renewal.
8.3.1 Term. Each subscription term for Subscription Services will commence on the Sales Order Effective Date and will continue for the period specified in the Sales Order or, if not so specified, one year (an “Initial Term”). Unless otherwise specified in the Sales Order, the Initial Term will automatically renew for additional terms of the same length of the Initial Term (each, a “Renewal Term”) unless either party declines renewal by notice in writing to that effect delivered to the other party at least 30 days prior to expiration of the then current subscription term. The Initial Term and each Renewal Term are individually referred to in these Terms as the “Subscription Term”.
8.3.2. Subscription to Upgraded or Additional Services. If Customer upgrades any of Customer’s Subscription Service subscriptions during a Subscription Term, then the Subscription Term for the upgraded Subscription Service will be coterminous with the current Subscription Term and Spice AI will invoice Customer an amount equal to the difference between the original Subscription Service fee and the upgraded Subscription Service fee. If Customer subscribes to an additional Subscription Service, the Subscription Term for that Subscription Service will begin on the Sales Order Effective Date for that Subscription Service and Customer will be separately invoiced for the applicable activation and Subscription Service fee for the additional Subscription Service.
8.3.3 Fee Increases. Fees for Services are subject to increases, which will be effective beginning upon the first day of each Renewal Term. Spice AI will notify Customer of any increase prior to its becoming effective; notice may be in a form of an invoice. If Customer objects to the increase, then Customer may terminate its subscription to the affected Services for convenience by notice provided to Spice AI at any time within 30 days of receipt of the increase notice; any such termination will be effective on the later to occur of the expiration of the 30 day period or the then current Subscription Term. Customer acknowledges that expiration of any discount or incentive programs to which Customer was previously entitled do not constitute fee increases.
8.7 Access to and Retention of Customer Data. Customer may download an export file of Customer Data stored on the Spice AI Technology at any time during the Subscription Term, and during the 30 day period following its termination or expiration. Spice AI will destroy or overwrite Customer Data within a reasonable period of time following termination of the applicable Sales Order, subject to conformance with Spice AI’s backup and data retention policies.
8.8 Suspension. Spice AI may suspend Customer’s right to access or use any portion of the Spice AI Technology Subscription Services immediately upon notice to Customer if Spice AI determines that Customer’s, its Affiliates’, or its or their Users’ use of the Spice AI Technology Subscription Services (i) poses a security risk to the Spice AI Technology Subscription Services or any third party, (ii) may adversely impact the Spice AI Technology Subscription Services, or the networks or data of any other Spice AI customer or business partner, (iii) does not comply with applicable law, or (iv) may subject Spice AI or any third party to liability.
9.1 Spice AI’s Infringement Indemnification.
9.1.1 Defense and Indemnity. If any third party makes any claim against Customer that, if true, would constitute an Spice AI Infringement then, upon notification of such claim, Spice AI will, at its sole cost and expense, defend Customer against such claim and any related proceeding brought by such third party against Customer, and indemnify Customer from and against all damages finally awarded against Customer or agreed to be paid by Customer in a written settlement approved in writing by Spice AI, and resulting from the Spice AI Infringement. Spice AI’s obligations under this Section 9.1.1 are conditioned upon Customer’s compliance with the “Indemnification Conditions” (defined below).
9.1.2 Spice AI’s Mitigation Rights. If any Subscription Services supplied by Spice AI become (or in Spice AI’s opinion are likely to become) the subject of any infringement or misappropriation claim, Spice AI may, and if Customer’s use of the Subscription Services is enjoined, Spice AI must, at its sole expense, either: (i) procure for Customer the right to continue using the relevant Subscription Services; (ii) replace or modify the relevant Subscription Services in a functionally equivalent manner so that they no longer infringe; or (iii) terminate the applicable Sales Order or Customer’s rights to use affected Subscription Services, and refund to Customer a pro-rata amount of any subscription fees prepaid to Spice AI and applicable to the unutilized portion of the Subscription Term for the terminated Subscription Services.
9.1.3 Exclusions. Notwithstanding the foregoing, Spice AI will have no obligation, including under Section 5.1.4 and this Section 9.1, with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Spice AI Technology or Subscription Services not in accordance with their applicable license rights, (ii) the combination of the Spice AI Technology or Subscription Services with other products, equipment, software, services or data not supplied by Spice AI where the infringement would not have occurred but for such combination, (iii) Spice AI’s compliance with Customer’s specifications, configuration requirements, or other instructions (except to the extent that Spice AI knew that such compliance would infringe a third party’s Intellectual Property Rights), (iv) any use of any version of any Spice AI Technology other than the most current version made available to Customer after notice from Spice AI that Customer must upgrade to such release to avoid an infringement or misappropriation claim and Customer has had a reasonable time in which to implement such upgrade, (v) any modification of the Spice AI Technology or Subscription Services not made by Spice AI or at its express direction, (vi) any third party open source software, or (vii) any Customer Materials.
9.2 Customer’s Infringement Indemnification.
9.2.1 _Defense and Indemnity_. If any third party makes any claim against Spice AI that Spice AI’s use of any Customer Materials infringes any third party patent existing under the laws of the United States or Canada, or infringes or violates any third party copyright, trademark, service mark, privacy right or data protection right, or results from any misappropriation by Customer of such third party’s trade secrets or privacy rights (collectively, a “Customer Infringement”) then, upon notification of such claim, Customer will, at its sole cost and expense, defend Spice AI against such claim and any related proceeding brought by such third party against Customer, and Customer will indemnify Spice AI from and against all damages finally awarded against Spice AI or agreed to be paid by Spice AI in a written settlement approved in writing by Customer, and resulting from the Customer Infringement. Customer’s obligations under this Section 8.2.1 are conditioned upon Spice AI’s compliance with the Indemnification Conditions.
9.2.2 Mitigation Rights. If provision of Customer Materials is, or in Customer’s reasonable opinion is likely to become, the subject of a claim of infringement or misappropriation of any intellectual property right of any third party, then Customer will have the right to: (i) procure the rights necessary for Customer to continue to provide Customer’s Materials; (ii) replace or modify the Customer Materials in a functionally equivalent manner so that they no longer infringe; or, if the options described in (i) and (ii) above are not available to Customer on commercially reasonable terms, (iii) terminate Spice AI’s rights to use the Customer Materials (in which case Spice AI’s obligations to perform the Services will be reduced to the extent that Spice AI required the Customer Materials to perform, and any such termination will be treated as a termination for convenience by Customer).
9.2.3 Exclusions. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any infringement or misappropriation claim to the extent based upon (i) any use of the Customer Materials not in accordance with their applicable license rights notified by Customer to Spice AI, (ii) combination of the Customer Materials with other products, equipment, software, services or data not supplied by Customer where the infringement would not have occurred but for such combination, but excluding combination with any Spice AI Technology, (iii) Customer’s compliance with Spice AI’s specifications or instructions, (iv) any use of any version of any Customer Materials other than the most current version made available to Spice AI after notice from Customer that Spice AI must upgrade to such release to avoid an infringement or misappropriation claim and Spice AI has had a reasonable time in which to implement such upgrade, (v) any modification of the Customer Materials not made by Customer or at its express direction, or (vi) any data processed by the Customer Materials that Customer has not provided, made available, or required Spice AI to use or access.
9.4 Improper Use of Spice AI Technology. Customer will indemnify and hold Spice AI harmless from any claims, damages, losses, judgments, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any non-compliance with the Acceptable Use Policy for which Customer, Customer’s Users, or Customer’s Affiliates are responsible.
(i) If the Modification Notice states that the modifications will become effective upon commencement of a Renewal Term, then Customer may terminate Customer’s subscription for convenience prior to commencement of the Renewal Term, in accordance with Section 8.2 (Termination for Convenience).
(ii) If the Modification Notice states that the modifications will become effective during the then current Subscription Term, then Customer may terminate Customer’s subscription to the affected Subscription Services at any time within the 30 day period following the date of the Modification Notice. Customer’s termination will become effective on the later to occur of (a) the date on which Customer delivers the termination notice, or (b) the date on which the applicable modifications become effective. If Customer terminates a Subscription Services subscription pursuant to this Section 13(ii), then Customer will be entitled to a pro-rata refund of any Subscription Services fees prepaid to Spice AI for the terminated Subscription Service for the unutilized portion of the Subscription Term (for clarification, Subscription Services fees do not include any activation fees, installation fees, Professional Service fees, or other expenses incurred in connection with the Services).
13.2 Publicity; References. Unless otherwise specified in the applicable Sales Order, Spice AI may refer to Customer as one of Spice AI’s customers and use Customer’s logo as part of such reference, provided that Spice AI complies with any trademark usage requirements notified to it by Customer. If so specified in the applicable Sales Order, (i) Spice AI may either (a) issue a press release announcing the relationship between Spice AI and Customer, or (b) submit a joint press release to Customer for Customer’s approval, such approval not to be unreasonably withheld or delayed; and (b) Customer will be a reference account for Spice AI, provided, however, that Spice AI will provide Customer with reasonable notice and obtain Customer’s consent before scheduling any reference calls or site visits.
13.5 U.S. Government Rights In The Services. Spice AI provides the Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 228.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Spice AI to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.