Master Customer Agreement - Terms and Conditions
These Master Customer Agreement Terms and Conditions (these “Terms and Conditions”) are entered into by and between DUST and Customer (each as defined below). These Terms and Conditions, together with all Order Forms (as defined below), constitute this “Agreement”. If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you purchase, license or subscribe to any DUST Technology (as defined below) using an email address from your employer or such entity), then the “Customer” under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.
1. DEFINITIONS
The following terms, when used in this Agreement shall have the following meanings.
“Authorized Users” means the individuals that are authorized under this Agreement to use any DUST Software, each individual having distinct user credentials.
“Customer” means the individual or entity entering into this Agreement with DUST by entering into an Order Form referencing these Terms and Conditions.
“Customer Application” means any software application operated by or on behalf of Customer that uses the DUST APIs to transmit Customer Data to and from the DUST Cloud.
“Customer Data” means data and other material supplied directly to DUST by Customer in using the DUST Software.
“DUST” means DUST Identity, Inc. a Delaware corporation.
“DUST APIs” means the application programming interfaces made available by DUST to Customer hereunder for use with Customer Applications and the DUST Cloud.
“DUSK SDKs” means the software development kit, including DUST API documentation, examples, source code, binaries, libraries, etc. for use with Customer Applications and the DUST Cloud.
“DUST Cloud” means the SaaS-based management platform for tracking Tags implemented by Customer, as further described in the Order Form.
“DUST Materials” means the physical identification technology called ‘Diamond Unclonable Security Tag’, which enables unique and unclonable identities for physical items, made out of engineered diamond particles embedded in polymers that can be applied to physical objects as a unique identifier tag (“Tags”).
“DUST Scanners” means the DUST scanners to be purchased by Customer pursuant to an Order Form and used in connection with the DUST Software and onto which DUST may have pre-installed certain Firmware for the identification of Tags.
“DUST Software” means, collectively, the DUST Cloud, DUST APIs, DUST SDKs and Mobile App.
“DUST Technology” means, collectively, DUST Scanners, DUST Materials, and DUST Software.
“Fees” means the fees for the DUST Technology as stated on the applicable Order Form.
“Firmware” means software installed on or otherwise contained in any DUST Scanners delivered to Customer hereunder.
“Mobile App” means the mobile application to be used by Authorized Users in connection with the DUST Materials and DUST Scanners.
“Order Form” means an order form, ordering document or online order entered into between Customer and Dust, or online ordering flow completed by Customer, in each case that sets forth the applicable Dust Technology that Customer is purchasing or licensing or to which Customer is subscribing, and that references these Terms and Conditions.
“Parties” means DUST and Customer, and each are individually referred to in this Agreement as a “Party”.
2. PURCHASE OF DUST SCANNERS. To the extent Customer purchases any DUST
Scanners as set forth in an Order Form, in consideration of payment of the applicable Fees, DUST hereby sells to the Customer, and the Customer hereby purchases from DUST, the DUST Scanners further described on such Order Form.
3. DUST SOFTWARE.
3.1 Access to DUST Software. To the extent Customer purchases any license or subscription to any DUST Software as set forth in an Order Form, subject to the terms and conditions of this Agreement and such Order Form, DUST hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to (a) install the Mobile App on the number of mobile devices set forth on such Order Form, (b) access and use the DUST Cloud for the subscription term set forth on such Order Form, and (c) use the DUST APIs to enable the interoperability of Customer Applications with the DUST Cloud during such subscription term, in each case solely as permitted in such Order Form for Customer’s internal business purposes. Customer is responsible for provisioning and managing its Authorized User accounts, its Authorized Users’ actions with respect to the Dust Technology and their compliance with this Agreement. Customer acknowledges and agrees that Customer’s wireless service carrier’s standard charges, data rates, and other fees may apply to Customer’s use of the Mobile App, and that downloading, installing, or using the Mobile App may be prohibited or restricted by Customer’s carrier and the Mobile App may not work with all carries or devices.
3.2 Customer Limitations. Customer shall not (a) copy, modify, frame, scrape, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, rent, lease, loan, distribute, assign, sublicense, or otherwise transfer any right in any DUST Software, (b) attempt to probe, scan or test the vulnerability of the Dust Software, breach the security or authentication measures of the Dust Software without proper authorization or wilfully render any part of the Dust Software unusable, or (c) use any DUST Software for any commercial purposes, in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form. Any rights not expressly granted under this Agreement are reserved by DUST. Any use of the DUST Software other than as specifically authorized in this Agreement is strictly prohibited.
3.3 Customer Obligations. Customer is responsible for compliance with any applicable privacy, data security, wiretap or electronic interception laws including, if required under applicable laws, providing any notices, obtaining any consents, or otherwise taking such actions as are required to ensure the lawfulness of using the DUST Technology and Customer Applications. Customer will ensure that it has the necessary rights to use and make available the Customer Applications and Customer Data in connection with this Agreement as contemplated herein. Other than the DUST Scanners being purchased by Customer under this Agreement, Customer is responsible for providing all hardware, system software, access devices, networks and telecommunications or other connections required for access to the Dust Software. Customer acknowledges that DUST may change, deprecate or republish DUST APIs from time to time and Customer is responsible for using the then-current version of the DUST APIs made available by DUST.
3.4 License to Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants DUST a limited, non-exclusive, royalty-free, fully paid-up, worldwide license to (a) copy, display, perform, distribute and create derivative works of the Customer Data (solely in aggregated or other deidentified form), as well as any metrics and usage of any DUST Software by Customer, solely for DUST’s business purposes, including to market, improve, provide and enhance DUST’s products and services, and (b) copy and create derivative works of the Customer Data to provide the services contemplated hereunder.
3.5 DUST Trademarks. DUST’s name and logos are trademarks and service marks of DUST (collectively the “DUST Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any DUST Trademark without DUST’s prior written permission in each instance. All goodwill generated from the use of DUST Trademarks will inure to DUST’s exclusive benefit.
3.6 Apple-Enabled Software. With respect to the Mobile App and Customer’s use in connection with an Apple-branded product (the “Apple-Enabled Software”), in addition to the other terms and conditions set forth in this Agreement: (a) DUST and Customer acknowledge that this Agreement is concluded between DUST and Customer only, and not with Apple Inc. (“Apple”), and that as between DUST and Apple, DUST, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof; (b) Customer may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions; (c) Customer’s license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that Customer owns or controls, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs; (d) Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software; (e) Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to Customer; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be DUST’s sole responsibility, to the extent it cannot be disclaimed under applicable law; (f) DUST and Customer acknowledge that DUST, not Apple, is responsible for addressing any claims of Customer or any third party relating to the Apple-Enabled Software or Customer’s possession and/or use of that Apple-Enabled Software, including: (i) product liability claims, (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection, privacy, or similar legislation; (g) in the event of any third-party claim that the Apple-Enabled Software or Customer’s possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between DUST and Apple, DUST, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim; (h) Customer represents and warrant that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties; (i) if Customer has any questions, complaints, or claims with respect to the Apple-Enabled Software, they must be directed to DUST; (j) Customer must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., Customer’s wireless data service agreement; and (k) DUST and Customer acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement with respect to the Apple-Enabled Software, and that Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
4. FEES; TAXES. Customer shall pay to DUST the Fees as reflected on the Order Form. All amounts payable by Customer to DUST under any Order Form are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively “Taxes”). Customer shall be solely responsible for payment of any Taxes, except for those taxes based on the income of DUST. Customer will not withhold any Taxes from any amounts due to DUST.
5. FEEDBACK AND CONFIDENTIALITY.
5.1 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to DUST with respect to the DUST Technology. Customer hereby assigns to DUST, on Customer’s behalf and on behalf of its employees and contractors, all right, title and interest in any such Feedback.
5.2 Confidentiality
(a) “Confidential Information” means, subject to the exceptions set forth below, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified, unless such information is the subject of any of the exceptions set forth below. For clarity, the DUST Technology is the Confidential Information of DUST; and the Customer Data is Confidential Information of Customer.
(b) Notwithstanding the foregoing, “Confidential Information” shall not include any information (i) that the Receiving Party can show is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (iv) is independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
(c) The Receiving Party must keep secret and shall never, without the prior written consent of the Disclosing Party, directly or indirectly, disclose, publish, divulge, furnish or make accessible to anyone all or any portion of the Disclosing Party’s Confidential Information, other than furnishing such Confidential Information to (i) the Receiving Party’s employees and consultants who are required to have access to such Confidential Information in connection with the performance of this Agreement, and (ii) the Receiving Party’s professional advisers (e.g., lawyers and accountants), in each case, during the time that the Receiving Party is permitted to retain such Confidential Information hereunder; provided that any and all such employees and consultants are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.
(d) The obligations pursuant to this Section 5.2 will survive the expiration or termination of this Agreement for five (5) years, except for Confidential Information that is being protected as a trade secret in which case such obligations pursuant to this Section 5.2 will survive for the greater of (i) five (5) years from expiration or termination of this Agreement, and (ii) for so long as the Confidential information is being protected as a trade secret.
(e) Notwithstanding anything to the contrary herein, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required by judicial process or otherwise by law; provided that, prior to such disclosure, the Receiving Party shall: (i) promptly notify the Disclosing Party of any actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure, and (ii) cooperate with the Disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure.
6. EXCLUSIONS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DUST DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. DUST DOES NOT WARRANT THAT THE DUST TECHNOLOGY WILL OPERATE AT ALL TIMES IN AN UNINTERRUPTED OR ERROR-FREE FASHION.
7. INDEMNIFICATION.
7.1 Indemnification by Dust. DUST will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third-party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the DUST Technology infringes or misappropriates any U.S. patent, copyright or trade secret of a third party (except for claims for which DUST is entitled to indemnification under Section 7.2, in which case DUST will have no obligations with respect to such claim). Further, DUST will indemnify the Customer Indemnified Parties against any damages actually awarded or paid as part of a settlement approved by DUST in connection therewith, including any reasonable attorneys’ fees. DUST’s indemnification obligations will not apply to Claims to the extent arising from (a) modification of the DUST Technology by any party other than DUST without DUST’s express consent; (b) the combination, operation, or use of the DUST Technology with other products, data or services where the DUST Technology would not by itself be infringing; or (c) unauthorized or improper use of the DUST Technology. If the use of the DUST Technology by Customer has become, or in DUST’s opinion is likely to become, the subject of any claim of infringement, DUST may at its option and expense (x) procure for Customer the right to continue using the DUST Technology as set forth hereunder; (y) replace or modify the Dust Technology to make it non-infringing so long as the DUST Technology has at least equivalent functionality; or (z) substitute an equivalent for the DUST Technology. If options (x)-(z) are not reasonably practicable, DUST may terminate the applicable Order Form(s) and provide a pro-rata refund of any unused funds under such Order Form(s). This Section 7.1 states DUST’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
7.2 Indemnification by Customer. Customer will (a) defend DUST and the officers, directors, agents, and employees of DUST (“DUST Indemnified Parties”) against any Claims arising from any use or disclosure by Customer of the DUST Technology in violation of this Agreement, and (b) indemnify the DUST Indemnified Parties against any damages actually awarded or paid as part of a settlement approved by Customer in connection therewith, including any reasonable attorneys’ fees.
7.3 Procedure. If a Customer Indemnified Party or a DUST Indemnified Party (“Indemnified Party”) becomes aware of any matter for which it believes it should be indemnified or defended under Section 7.1 or Section 7.2, as applicable, involving any Claim, such Indemnified Party will give the other Party (“Indemnifying Party”) prompt written notice of such Claim. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Claim with counsel of its own choosing. Any compromise or settlement of a Claim will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld, conditioned or delayed.
8. DAMAGES EXCLUSION; LIMITATION OF LIABILITY. WITH THE EXCEPTION OF LIABILITY ARISING FROM BREACHES OF SECTION 3.2, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS OF VALUE, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITH THE EXCEPTION OF LIABILITY ARISING FROM (A) BREACHES OF SECTION 3.2, 3.3 OR 5.2, OR (B) DUST’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, IN NO EVENT SHALL DUST BE LIABLE FOR ANY DIRECT DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE PRICE DUST CHARGES UNDER THIS AGREEMENT FOR TWELVE (12) MONTHS FEES AS SET FORTH ON THE APPLICABLE ORDER FORM IN EFFECT AT THE TIME OF ANY CLAIM. MONETARY DAMAGES, AS LIMITED BY THIS SECTION, WILL BE EACH PARTY’S SOLE AND EXCLUSIVE ALTERNATIVE REMEDY (AT LAW OR IN EQUITY) IN THE EVENT THAT ANY EXCLUSIVE REMEDY HEREUNDER IS FOUND TO FAIL ITS ESSENTIAL PURPOSE. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
9. TERMINATION.
9.1 Term. The term of this Agreement shall commence on the date of the initial Order Form and continue until there are no Order Forms in effect.
9.2 Termination. In addition to any rights of a Party to terminate this Agreement as specifically provided in any other section of this Agreement, either Party may terminate this Agreement or the applicable Order Form upon written notice in the event the other Party commits any material breach of this Agreement or such Order Form and either (a) fails to provide an acceptable remedy of such breach within thirty (30) days after written notice of such breach (or in the case of a material breach by Customer of Section 3.1, 3.2 or 3.3, ten (10) days); or (b) such breach is uncurable. DUST may suspend access to the DUST Software immediately upon notice if Customer fails to pay any applicable Fee within five (5) days of the applicable due date. Either Party may terminate this Agreement if the other ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation that is not dismissed within ninety (90) days, or a receiver is appointed with respect to a substantial part of its assets. Termination of this Agreement will terminate all Order Forms.
9.3 Obligations on Termination. Upon termination or expiration of this Agreement, all rights granted hereunder to Customer and all obligations of DUST to provide access to the DUST Software shall immediately terminate. Upon termination or expiration of this Agreement, each Party shall return all Confidential Information in its possession or control to the other Party. Expiration or termination of this Agreement or any Order Form shall not relieve Customer from paying all Fees accruing prior to expiration or termination. Sections 1 (Definitions), 3.2 (Customer Limitations), 3.3 (Customer Obligations), 3.4 (License to Customer Data), 4 (Fees; Taxes), 5 (Feedback and Confidentiality), 6 (Exclusions), 7 (Indemnification), 8 (Damages Exclusion; Limitations of Liability), 9.3 (Obligations on Termination), and 10 (General) shall survive any termination or expiration of this Agreement or any Order Form.
10. GENERAL. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, USA, exclusive of its rules governing choice of law and conflict of laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. All disputes arising out of the Agreement shall be subject to the exclusive jurisdiction and venue of the state and federal courts in Middlesex County, Massachusetts, and the Parties to this Agreement hereby consent to the personal jurisdiction of these courts. Neither Party shall be liable for any failure or delay in performance under this Agreement caused by any natural disaster (e.g., fire, flood, earthquake), terrorist act, war, pandemic, government action, strike, equipment or facility shortage, equipment or facility relocation, or other cause beyond such Party’s reasonable control, provided that the non-performing Party gives the other Party prompt written notice. Neither Party shall make any public statements including, without limitation, press releases or public announcements regarding this Agreement without first obtaining written consent from the other Party. Neither Party may assign or transfer this Agreement (or any of its rights hereunder) to any other Party without the prior written consent of the other Party, except that either Party (the “Assigning Party”) may assign or transfer this Agreement in its entirety, by operation of law or otherwise, without the consent of the other Party to a corporation or other business entity succeeding to all or substantially all of the assets and business of the Assigning Party related to this Agreement by merger, purchase or otherwise, provided that such corporation or other business entity expressly assumes all of the terms and conditions of this Agreement.
Dust reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. Any modification will only apply to Order Forms entered into after the effective date of such modification, provided that with respect to an Order Form under which Customer purchases a license or subscription to any DUST Software, such modification will become effective upon the date of Customer’s next renewal of such Order Form; if Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Except as set forth in this paragraph, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, shall be effective unless assented to in writing by both Parties.
The waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default. Nothing contained herein shall in any way constitute any association, partnership, agency, employment or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of this Agreement shall remain in full force and effect and bind the Parties according to its terms. To the extent any provision cannot be enforced in accordance with the stated intentions of the Parties, such provision shall be deemed not to be a part of this Agreement. Any notice required or permitted to be given hereunder shall be given in writing to the Party at the address specified in the applicable Order Form by personal delivery, certified mail, return receipt requested, or by overnight delivery. This Agreement (including all Order Forms) comprises the entire agreement between Customer and DUST with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by DUST, its agents or employees shall create a warranty or in any way increase the scope of the warranties in this Agreement.
