Last Updated: August 27, 2020
What We Collect
We get information about you in a range of ways. Information You Give Us. We collect your name, postal address, email address, phone number as well as other information you directly give us on our Site. Information We Get From Others. We may get information about you from other sources. We may add this to information we get from this Site. Information Automatically Collected. We automatically log information about you and your computer. For example, when visiting our Site, we log your computer operating system type, browser type, browser language, the website you visited before browsing to our Site, pages you viewed, how long you spent on a page, access times and information about your use of and actions on our Site. Cookies. We may log information using “cookies.” Cookies are small data files stored on your hard drive by a website. We may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience on our Site. This type of information is collected to make the Site more useful to you and to tailor the experience with us to meet your special interests and needs.
Use of Personal Information
We use your personal information as follows:
We use your personal information to operate, maintain, and improve our sites, products, and services.
We use your personal information to provide and deliver products and services customers request.
Sharing of Personal Information
We may share personal information as follows:
We may share personal information with your consent. For example, you may let us share personal information with others for their own marketing uses. Those uses will be subject to their privacy policies.
We may share personal information when we do a business deal, or negotiate a business deal, involving the sale or transfer of all or a part of our business or assets. These deals can include any merger, financing, acquisition, or bankruptcy transaction or proceeding.
We may share personal information for legal, protection, and safety purposes.
We may share information to comply with laws.
We may share information to respond to lawful requests and legal processes.
We may share information in an emergency. This includes protecting the safety of our employees and agents, our customers, or any person.
We may share information with those who need it to do work for us. We may also share aggregated and/or anonymized data with others for their own uses.
Information Choices and Changes
Our marketing emails tell you how to “opt-out.” If you opt out, we may still send you non-marketing emails. Non-marketing emails include emails about your accounts and our business dealings with you.
You may send requests about personal information to our Contact Information below. You can request to change contact choices, opt-out of our sharing with others, and update your personal information.
You can typically remove and reject cookies from our Site with your browser settings. Many browsers are set to accept cookies until you change your settings. If you remove or reject our cookies, it could affect how our Site works for you.
Privacy and Security
Documents on the Observe platform are stored with enterprise-grade security on the AWS platform. Stored documents are protected with AES-256 Encryption. Additionally, Observe implements audit logging to protect against unexpected database activity. Data is regularly backed up.
If you delete your account or request that your information be deleted, we may still retain some Personal Information that you have provided to us in order to maintain Observe or to comply with relevant laws.
We are committed to ensuring your information is protected and have selected third-party vendors that help keep your Personal Information safe. Unfortunately, we do not control these third parties and therefore cannot guarantee complete security.
We do employ several physical and electronic safeguards to keep your information safe, including encrypted user passwords and securing all connections with industry standard transport layer security.
If you log into your account on a shared computer, be sure to sign out of your account when finished. If you believe an unauthorized third party has access to your account, you must let us know as soon as possible.
Even with all these precautions, we cannot fully guarantee against the access, disclosure, alteration, or deletion of data through events, including, but not limited to, hardware or software failure or unauthorized use. Any information that you provide to us is done so entirely at your own risk.
You may also contact us at our address:
2 East 3rd Avenue
San Mateo, CA 94401
Observe Inc. Terms of Service
OBSERVE INC. TERMS OF SERVICE
VERSION DATE: July 21, 2020
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY
IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED
UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.AGREEMENT
This Observe Inc. Terms of Service (“Agreement”) is entered into by and between Observe Inc. (as defined below) and the entity or person placing an order for or accessing any Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms and SOWs (as defined below) that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form or Reseller Order Form, as applicable, referencing this Agreement. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
Purchase from Reseller: Customer may procure use of any Service from an authorized reseller of Observe Inc. (“Reseller”) pursuant to a separate Reseller Order Form that references this Agreement. Customer’s use of any Service procured through a Reseller will be subject to the terms of this Agreement and all fees payable for such use shall be payable pursuant to the terms set forth in the Reseller Order Form. Modifications to this Agreement: From time to time, Observe Inc. may modify this Agreement. Unless otherwise specified by Observe Inc., changes become effective for Customer upon renewal of the then-current Subscription Term (as defined below) or entry into a new Order Form after the updated version of this Agreement goes into effect. Observe Inc. will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account (as defined below), email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.
- USE OF SERVICE
1.1. Service Provision and Access; Client Software. Observe Inc.
will make the Service available to Customer for the Subscription
Term solely for use by Customer and its Users in accordance with
the terms and conditions of this Agreement, the Documentation, and
the Order Form. Customer may permit its Contractors and Affiliates
to serve as Users provided that any use of the Service by each such
Contractor or Affiliate is solely for the benefit of Customer or such
Affiliate. Customer shall be responsible for each User’s compliance
with this Agreement. To the extent use of a Service requires
Customer to install Client Software, Observe Inc. grants to Customer
a limited, non-transferable, non-sublicensable, non-exclusive
license during the Subscription Term to use the object code form of
the Client Software internally in connection with Customer’s and its
Affiliates use of the Service, subject to the terms and conditions of
this Agreement and the Documentation.
1.2. Affiliates. Customer Affiliates may purchase services from
Observe Inc. by executing an Order Form or SOW which is governed
by the terms of this Agreement. This will establish a new and
separate agreement between the Customer Affiliate and the
Observe Inc. entity signing such Order Form. If the Customer Affiliate
resides in a different country than Customer, then the Order Form
may include modifications to terms applicable to the transaction(s)
(including but not limited to tax terms and governing law).
1.3. Compliance with Applicable Laws. Observe Inc. will provide
the services in accordance with its obligations under laws and
government regulations applicable to Observe Inc.’s provision of the
services to its customers generally, including, without limitation,
those related to data privacy and data transfer, international
communications, and the exportation of technical or personal data,
without regard to Customer’s particular use of the services and
subject to Customer’s use of the services in accordance with this
1.4. Sample Data; Third Party Applications. Observe Inc. may
make Sample Data available for Customer. Customer
acknowledges that Sample Data is example data only, which may
not be complete, current, or accurate. Customer will not (and will
not permit any third party to) copy or export any Sample Data and
agrees that Observe Inc. may delete or require Customer to cease
using Sample Data at any time upon advance notice. Observe Inc.
may also provide URL links or interconnectivity within the Service to
facilitate Customer’s use of Third Party Applications, at Customer’s
sole discretion. Notwithstanding the foregoing, any procurement or
use of Third Party Applications are solely between Customer and
the applicable third party and Observe Inc. will have no liability for such
Third Party Applications.
1.5. General Restrictions. Customer will not (and will not permit
any third party to): (a) sell, rent, lease, license, distribute, provide
access to, sublicense, or otherwise make available any Service (or
Deliverables, if applicable) to a third party (except as set forth in the
Documentation for Service features expressly intended to enable
Customer to provide its third parties with access to Customer Data,
or the SOW, as applicable) or in a service bureau or outsourcing
offering; (b) use any Service to provide, or incorporate any Service
into, any general purpose data warehousing service for the benefit
of a third party; (c) reverse engineer, decompile, disassemble, or
otherwise seek to obtain the source code or non-public APIs to any
Service, except to the extent expressly permitted by applicable law
(and then only upon advance written notice to Observe Inc.); (d)
remove or obscure any proprietary or other notices contained in any
Service; or (e) use any services in violation of the Acceptable Use
1.6. Preview Service Terms. Observe Inc. may make available to
Customer certain products, features, services, software, regions or
cloud providers that are not yet generally available, including such
products, features, services, software, regions or cloud providers
that are labeled as “private preview,” “public preview,” “pre-release”
or “beta” (collectively, “Previews”). Customer may access and use
Previews solely for its internal evaluation purposes and in
accordance with the Preview Terms. In the event of any conflict
between this Agreement and the Preview Terms, the Preview
Terms shall govern and control solely with respect to the Previews.
- CUSTOMER DATA
2.1. Rights in Customer Data. As between the parties, Customer
or its licensors retain all right, title and interest (including any and all
intellectual property rights) in and to the Customer Data and any
modifications made thereto in the course of the operation of the
Service as provided to Observe Inc.. Subject to the terms of this
Agreement, Customer hereby grants to Observe Inc. and its Affiliates
a non-exclusive, worldwide, royalty-free right to process the
Customer Data solely to the extent necessary to provide the
services to Customer or as may be required by law.
2.2. Use Obligations.
(a) In General. Customer’s use of the services and all
Customer Data will comply with applicable laws and government
regulations. Customer is solely responsible for the accuracy,
content and legality of all Customer Data. Customer warrants that
Customer has and will have sufficient rights in the Customer Data
to grant the rights to Observe Inc. under this Agreement and that the
Customer Data will not violate the rights of any third party.
(b) HIPAA Data. Customer agrees not to upload to any Service
any HIPAA Data. Observe Inc. will have no liability under this
Agreement for HIPAA Data, notwithstanding anything to
the contrary in this Agreement or in HIPAA or any similar federal or
state laws, rules or regulations. If Customer is permitted to submit
HIPAA Data to a Service, then Customer may submit HIPAA Data
to Observe Inc. and/or the Service only by uploading it as Customer
2.3. Data Privacy. The parties shall comply with the DPA.
- SECURITY. The parties shall comply with the Security Policy.
- INTELLECTUAL PROPERTY
4.1. Observe Inc. Technology. Customer agrees that Observe Inc. or
its suppliers retain all right, title and interest (including all patent,
copyright, trademark, trade secret and other intellectual property
rights) in and to the Service, all Documentation and Client Software,
any Deliverables (as defined in the TSA), and any and all related
and underlying technology and documentation; and any derivative
works, modifications, or improvements of any of the foregoing,
including any Feedback that may be incorporated (collectively,
“Observe Inc. Technology”). Except for the express limited rights set
forth in this Agreement, no right, title or interest in any Observe Inc.
Technology is granted to Customer. Further, Customer
acknowledges that the Service is offered as an online, hosted
solution, and that Customer has no right to obtain a copy of the
underlying computer code for any Service, except (if applicable) for
the Client Software in object code format. Notwithstanding anything
to the contrary herein, Observe Inc. may freely use and incorporate
into Observe Inc.’s products and services any suggestions,
enhancement requests, recommendations, corrections, or other
feedback provided by Customer or by any users of the Services
relating to Observe Inc.’s products or services (“Feedback”).
4.2. Usage Data. Notwithstanding anything to the contrary in this
Agreement, Observe Inc. may collect and use Usage Data to develop,
improve, support, and operate its products and services. Observe Inc.
may not share any Usage Data that includes Customer’s
Confidential Information with a third party except (i) in accordance
with Section 5 (Confidential Information) of this Agreement, or (ii) to
the extent the Usage Data is aggregated and anonymized such that
Customer and Customer’s Users cannot be identified.
4.3. Marketing. Observe Inc. may use and display Customer’s name,
logo, trademarks, and service marks on Observe Inc.’s website and in
Observe Inc.’s marketing materials in connection with identifying
Customer as a customer of Observe Inc.. Upon Customer’s written
request, Observe Inc. will promptly remove any such marks from
Observe Inc.’s website and, to the extent commercially feasible,
Observe Inc.’s marketing materials. If Observe Inc. requests, Customer
agrees to participate in a case study, press release and/or
cooperate with Observe Inc. in speaking to the media, and to speak at
a future Observe Inc. event.
- CONFIDENTIALITY. Each party (as “Receiving Party”) will
use the same degree of care that it uses to protect the confidentiality
of its own confidential information of like kind (but not less than
reasonable care) to (i) not use any Confidential Information of the
other party (the “Disclosing Party”) for any purpose outside the
scope of this Agreement, and (ii) except as otherwise authorized by
the Disclosing Party in writing, limit access to Confidential
Information of the Disclosing Party to those of its and its Affiliates’
employees and contractors who need that access for purposes
consistent with this Agreement and who have signed confidentiality
agreements with the Receiving Party containing protections not
materially less protective of the Confidential Information than those
herein. If Receiving Party is required by law or court order to
disclose Confidential Information, then Receiving Party shall, to the
extent legally permitted, provide Disclosing Party with advance
written notification and cooperate in any effort to obtain confidential
treatment of the Confidential Information. The Receiving Party
acknowledges that disclosure of Confidential Information would
cause substantial harm for which damages alone would not be a
sufficient remedy, and therefore that upon any such disclosure by
the Receiving Party, the Disclosing Party will be entitled to seek
appropriate equitable relief in addition to whatever other remedies it
might have at law.
- FEES AND PAYMENT; TAXES; PAYMENT DISPUTES
6.1. Fees and Payment. All Fees and payment terms are as set
forth in the applicable Order Form. Except as expressly set forth in
this Agreement, all payment obligations are non-cancelable and
Fees are non-refundable. If Customer issues a purchase order upon
entering into an Order Form, then: (i) any such purchase order
submitted by Customer is for its internal purposes only, and
Observe Inc. rejects, and in the future is deemed to have rejected, any
purchase order terms to the extent they add to or conflict in any way
with this Agreement or the applicable Order Form and such
additional or conflicting terms will have no effect, (ii) it shall be
without limitation to Observe Inc.’s right to collect Fees owing
hereunder, (iii) it shall be for the total Fees owing under the
applicable Order Form, and (iv) on request, Observe Inc. will reference
the purchase order number on its invoices (solely for administrative
convenience), so long as Customer provides the purchase order at
least ten (10) business days prior to the invoice date.
6.2. Taxes. Fees do not include Taxes. Customer is responsible for
paying all Taxes associated with its purchases hereunder including
without limitation all use or access of the Service by its Users. If
Observe Inc. has the legal obligation to pay or collect Taxes for which
Customer is responsible under this Section, Observe Inc. will invoice
Customer and Customer will pay that amount unless Customer
provides Observe Inc. with a valid tax exemption certificate authorized
by the appropriate taxing authority. Taxes will not be deducted from
payments to Observe Inc., except as required by applicable law, in
which case Customer will increase the amount payable as
necessary so that, after making all required deductions and
withholdings, Observe Inc. receives and retains (free from any liability
for Taxes) an amount equal to the amount it would have received
had no such deductions or withholdings been made. Upon
Observe Inc.’s request, Customer will provide to Observe Inc. its proof
of withholding tax remittance to the respective tax authority. Where
applicable, Customer will provide its VAT/GST Registration
Number(s) on the Order Form to confirm the business use of the
6.3. Payment Disputes. Observe Inc. will not exercise its rights under
Section 7.2 (Termination for Cause) or Section 7.5(a) (Suspension
of Service) with respect to non-payment by Customer if Customer is
disputing the applicable charges reasonably and in good faith and
is cooperating diligently to resolve the dispute. If the parties are
unable to resolve such a dispute within thirty (30) days, each party
shall have the right to seek any remedies it may have under this
Agreement, at law or in equity, irrespective of any terms that would
limit remedies on account of a dispute. For clarity, any undisputed
amounts must be paid in full.
6.4 Reseller Orders. If Customer has procured the Service or
Technical Services through a Observe Inc.-authorized distributor or
reseller (“Reseller”), then different terms regarding invoicing,
payment and taxes may apply as specified between Customer and
its Reseller. Customer acknowledges that: (a) Observe Inc. may share
information with the Reseller related to Customer’s use and
consumption of the Service or Technical Services for account
management and billing purposes; (b) the termination provisions
below will also apply if Customer’s Reseller fails to pay applicable
fees; and (c) Reseller is not authorized to make any changes to this
Agreement or otherwise authorized to make any warranties,
representations, promises or commitments on behalf of Observe Inc.
or in any way concerning the Service or Technical Services.
- TERM AND TERMINATION
7.1. Term. This Agreement is effective as of the Effective Date and
will remain in effect until terminated in accordance with its terms. If
there is no SOW, Order Form or Retrieval Right currently in effect,
either party may terminate this Agreement upon written notice to the
other party. Each Order Form will terminate upon expiration of the
applicable Subscription Term, unless expressly stated otherwise
therein or in this Agreement.
7.2. Termination for Cause. Either party may terminate this
Agreement (including all related Order Forms) if the other party (a)
fails to cure any material breach of this Agreement (including a
failure to pay Fees) within thirty (30) days after written notice; (b)
ceases operation without a successor; or (c) seeks protection under
any bankruptcy, receivership, trust deed, creditors’ arrangement,
composition, or comparable proceeding, or if any such proceeding
is instituted against that party and is not dismissed within 60 days.
Except where an exclusive remedy is specified, the exercise of
either party of any remedy under this Agreement, including
termination, will be without prejudice to any other remedies it may
have under this Agreement, by law or otherwise. For any
termination of this Agreement by Customer for cause in accordance
with Section 7.2(a), Customer shall be entitled to a refund of any
unused Fees Customer has pre-paid for the Service purchased
7.3. Effect of Termination; Customer Data Retrieval. Upon
written notice to Observe Inc. or Reseller (if applicable), Customer will
have up to thirty (30) calendar days from termination or expiration
of this Agreement to access the Service solely to the extent
necessary to retrieve Customer Data (“Retrieval Right”). If
Customer exercises its Retrieval Right, this Agreement and the
applicable Order Form shall continue in full force and effect for the
duration of the Retrieval Right. Observe Inc. shall have no further
obligation to make Customer Data available after termination of this
Agreement and shall thereafter promptly delete Customer Data.
After the Retrieval Right period, Customer will have no further
access to Customer Data and shall cease use of and access to the
Service (including any related Observe Inc. Technology) and delete all
copies of Client Software, Documentation, any Service passwords
or access codes, and any other Observe Inc. Confidential Information
in its possession.
7.4. Survival. The following Sections will survive any expiration or
termination of this Agreement: 1.5 (General Restrictions), 4
(Intellectual Property), 5 (Confidentiality), 6.1 (Fees and Payment),
6.2 (Taxes), 7 (Term and Termination), 8.2 (Warranty Disclaimer),
11 (Indemnification), 12 (Limitation of Remedies and Damages), 13
(General Terms), and 14 (Definitions).
7.5. Suspension of Service In addition to any of its other rights or
remedies (including, without limitation, any termination rights) set
forth in this Agreement, Observe Inc. reserves the right to suspend
provision of services; (a) if Customer (or Customer’s Reseller, if
applicable) is thirty (30) days or more overdue on a payment, (b) if
Observe Inc. deems such suspension necessary as a result of
Customer’s breach of Sections 1.5 (General Restrictions) or 2.2
(Use Obligations), (c) if Observe Inc. reasonably determines
suspension is necessary to avoid material harm to Observe Inc. or its
other customers, including if the Service is experiencing denial of
service attacks, mail flooding, or other attacks or disruptions outside
of Observe Inc.’s control, or (d) as required by law or at the request of
8.1. Service Warranty. Observe Inc. warrants that: (a) each Service
will operate in substantial conformity with the applicable
Documentation and (b) Technical Services and Deliverables will be
provided in a professional and workmanlike manner and
substantially in accordance with the specifications in the applicable
SOW. If Observe Inc. is not able to correct any reported nonconformity
with this warranty, either party may terminate the
applicable Order Form or Statement of Work (as applicable, and
Customer, as its sole remedy, will be entitled to receive a refund of
any unused Fees that Customer has pre-paid for the applicable
Service or Technical Services purchased thereunder. This warranty
will not apply if the error or non-conformance was caused by misuse
of the Service or Deliverables, modifications to the Service or
Deliverables by Customer or any third-party, or third-party
hardware, software, or services used in connection with the Service.
For Technical Services and Deliverables, this warranty will not apply
unless Customer provides written notice of a claim within thirty (30)
days after expiration of the applicable Statement of Work.
8.2. Mutual Warranty. Each party warrants that it has validly
entered into this Agreement and has the legal power to do so.
8.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, EACH SERVICE, THE CLIENT
SOFTWARE, SAMPLE DATA, AND ALL TECHNICAL SERVICES
AND SUPPORT ARE PROVIDED “AS IS” AND OBSERVE INC.
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS
FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
OBSERVE INC. DOES NOT WARRANT THAT THE USE OF ANY
SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR
DOES OBSERVE INC. WARRANT THAT IT WILL REVIEW THE
CUSTOMER DATA FOR ACCURACY.
- SUPPORT AND AVAILABILITY. During a Subscription Term,
Observe Inc. will provide Customer the level of support for the Service
specified in the applicable Order Form, in accordance with the
- TECHNICAL SERVICES.
10.1. Provision of Technical Services. Observe Inc. will perform the
Technical Services for Customer as set forth in each applicable
Statement of Work, subject to the terms and conditions of the
Agreement. The Observe Inc. personnel that Observe Inc. assign to
perform the Technical Services will be professional and qualified in
the performance of the applicable Technical Services. If Customer,
in its reasonable judgement, believes that Observe Inc. personnel
assigned to a project do not meet the requirements in this Section,
Observe Inc. will in good faith discuss alternatives and will replace
Observe Inc. personnel as reasonably necessary. Where expressly
stated in an SOW, Observe Inc. will not remove Personnel expressly
named in the SOW without the prior written permission of Customer.
10.2 Assistance. Customer acknowledges that timely access to
applicable Customer Materials (defined below), resources,
personnel, equipment or facilities is necessary for the provision of
Technical Services. Customer agrees to provide such access and
to reasonably cooperate with Observe Inc. during a Technical
Services project. Observe Inc. will have no liability for any delay or
deficiency to the extent resulting from Customer’s breach of its
obligations under this Section 10.
10.3 Customer Materials. Customer hereby grants Observe Inc. a
limited right to use any materials provided to Observe Inc. in
connection with Technical Services projects (the “Customer
Materials”) solely for the purpose of providing Technical Services
to Customer. Customer will retain any of its rights (including all
intellectual property rights) in and to the Customer Materials.
Observe Inc. will treat Customer Materials subject to the confidentiality
obligations under Section 5 (Confidentiality). Customer warrants
that Customer has and will have sufficient rights in the Customer
Materials to grant the rights to Observe Inc. under this Agreement and
that the Customer Materials will not violate the rights of any third
10.4 Access to Customer Data With respect to access to any
Customer Data, Customer is solely responsible for ensuring that
both the duration and scope of access is strictly limited to the access
required under the specific SOW. Customer agrees that it will not
grant Observe Inc. access to Customer Data unless specifically
required and noted in an SOW, and only during the term of the
applicable Technical Services project. Unless otherwise specified in
a SOW, Customer must ensure that (a) any access to Customer
Data that it grants is limited to read-only access in Customer’s
development environment for the Observe Inc. Service (and
Customer will not grant access to any other environment, such as
the its test, prod or disaster recovery) and (b) Customer will not
grant access to any Customer Data that is unencrypted or contains
personal data . To the extent access to Customer Data is granted,
Customer will provide Observe Inc. with: (i) secure Customer
workstations and networks for accessing Customer Data that are
monitored, managed, configured, supported and maintained by
Customer and (ii) unique user ID/passwords to each Observe Inc.
resource that requires access to Customer Data, and these
credential will be solely managed by Customer.
10.5 License to Deliverables. The Technical Services Observe Inc.
performs (e.g., providing guidance on configuring the Observe Inc.
Service), and the resulting Deliverables are generally applicable to
Observe Inc.’s business and are part of Observe Inc.
Technology. Subject to the terms and conditions of the Agreement
(including the restriction in Section 1.6 (General Restrictions)),
Observe Inc. hereby grants Customer a limited, non-exclusive,
royalty-free, non-transferable worldwide license to use the
Deliverables internally solely in connection with such Customer’s
use of the Observe Inc. Service during the period in which such
Customer has valid access to the Observe Inc. Service. The parties
may mutually agree to SOWs with additional terms and restrictions
related to the use of Deliverables provided as part of that project, in
which case those terms and restrictions will also apply for purposes
of those Deliverables only.
10.6 Change Orders; Other Terms. Customer may submit written
requests to Observe Inc. to change the scope of Technical Services
under an existing Statement of Work. Observe Inc. will promptly notify
Customer if it believes that the requested change requires an
adjustment to the fees, schedule, assumptions or scope for the
performance of the Technical Services. Neither party is bound by a
change request unless agreed in writing by both parties pursuant to
a mutually executed amendment or change order (each, a “Change
Order”). Observe Inc. will continue to perform Technical Services
pursuant to the existing Statement of Work unless the parties
mutually agree to such amendment or change order. Observe Inc.
may use subcontractors to deliver Technical Services but will
remain responsible for their performance of those Technical
Services under the the applicable terms and conditions of this
Agreement. For clarity, Customer will be responsible for any
consumption and other fees for the Service that are generated as
part of the Technical Services.
11.1. Indemnification by Observe Inc.. Observe Inc. will defend
Customer against any claim by a third party alleging that any
Service or Deliverable, when used in accordance with this
Agreement, infringes any intellectual property right of such third
party and will indemnify and hold harmless Customer from and
against any damages and costs awarded against Customer or
agreed in settlement by Observe Inc. (including reasonable attorneys’
fees) resulting from such claim. If Customer’s use of the Service or
Deliverable results (or in Observe Inc.’s opinion is likely to result) in an
infringement claim, Observe Inc. may either: (a) substitute functionally
similar products or services; (b) procure for Customer the right to
continue using the Service or Deliverable; or if (a) and (b) are not
commercially reasonable, (c) terminate this Agreement, or the
applicable Order Form or SOW and refund to Customer the unused
Fees that Customer has pre-paid for the applicable Service or
Deliverable. The foregoing indemnification obligation of Observe Inc.
will not apply to the extent the applicable claim is attributable to: (1)
the modification of the Service or Deliverable by any party other than
Observe Inc. or based on Customer’s specifications or requirements;
(2) the combination of the Service or Deliverable with products or
processes not provided by Observe Inc.; (3) any use of the Service or
Deliverables in non-conformity with this Agreement; or (4) any
action arising as a result of Customer Data, or any deliverables or
components not provided by Observe Inc.. This Section sets forth
Customer’s sole remedy with respect to any claim of intellectual
11.2. Indemnification by Customer. Customer will defend
Observe Inc. against any claim by a third party arising from or relating
to any Customer Data, Customer Materials or any Customer-offered
product or service used in connection with the Service and will
indemnify and hold harmless Observe Inc. from and against any
damages and costs awarded against Observe Inc. or agreed in
settlement by Customer (including reasonable attorneys’ fees)
resulting from such claim.
11.3. Indemnification Procedures. In the event of a potential
indemnity obligation under this Section 11, the indemnified party
will: (i) promptly notify the indemnifying party in writing of the claim,
(ii) allow the indemnifying party the right to control the investigation,
defense and settlement (if applicable) of such claim at the
indemnifying party’s sole cost and expense, and (iii) upon request
of the indemnifying party, provide all necessary cooperation at the
indemnifying party’s expense. Failure by the indemnified party to
notify the indemnifying party of a claim under this Section 11 shall
not relieve the indemnifying party of its obligations under this
Section 11, however the indemnifying party shall not be liable for
any litigation expenses that the indemnified party incurred prior to
the time when notice is given or for any damages and/or costs
resulting from any material prejudice caused by the delay or failure
to provide notice to the indemnifying party in accordance with this
Section. The indemnifying party may not settle any claim that would
bind the indemnified party to any obligation (other than payment
covered by the indemnifying party or ceasing to use infringing
materials), or require any admission of fault by the indemnified
party, without the indemnified party’s prior written consent, such
consent not to be unreasonably withheld, conditioned or delayed.
Any indemnification obligation under this Section 11 will not apply if
the indemnified party settles or makes any admission with respect
to a claim without the indemnifying party’s prior written consent.
- LIMITATION OF REMEDIES AND DAMAGES. EXCEPT AS
TO “EXCLUDED CLAIMS,” TO THE MAXIMUM EXTENT
PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT:
(A) NEITHER PARTY NOR ITS AFFILIATES SHALL
BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES
FOR ANY LOSS OF USE, LOST OR INACCURATE DATA,
INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST
PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL,
RELIANCE, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF
INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN
(B) SUBJECT TO SUBSECTION (C) BELOW, EACH PARTY’S
AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER
PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE
AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY
TYPE), SHALL NOT EXCEED THE AMOUNT ACTUALLY
PAID OR PAYABLE BY CUSTOMER TO OBSERVE INC. IN
THE PRIOR 12 MONTHS UNDER THE APPLICABLE
ORDER FORM(S) OR SOW TO WHICH SUCH LIABILITY
RELATES (“GENERAL LIABILITY CAP”);
(C) IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH
PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE
OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN
THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY
TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE
“GENERAL LIABILITY CAP”;
2020June30 Observe Inc. Terms of Service
Page 6 of 8
(D) IN NO EVENT SHALL EITHER PARTY (OR ITS
RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME
EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND
THE DATA PROTECTION CLAIMS CAP. SIMILARLY,
THOSE CAPS SHALL NOT BE CUMULATIVE; IF A PARTY
(AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS
SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM
TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE
SHALL NOT EXCEED THE DATA PROTECTION CLAIMS
(E) THE PARTIES AGREE THAT THIS SECTION 12 WILL APPLY
REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE AND WILL APPLY
EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE; AND
(F) THE APPLICABLE MONETARY CAPS SET FORTH IN THIS
SECTION 12 SHALL APPLY ACROSS THIS AGREEMENT
AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN
AGGREGATED BASIS, WITHOUT REGARD TO WHETHER
ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE
EXECUTED A SEPARATE AGREEMENT IN ACCORDANCE
WITH SECTION 1.2 (AFFILIATES).
- GENERAL TERMS
13.1. Assignment. This Agreement will bind and inure to the
benefit of each party’s permitted successors and assigns. Neither
party may assign this Agreement without the advance written
consent of the other party, except that either party may assign this
Agreement in its entirety in connection with a merger,
reorganization, acquisition, or other transfer of all or substantially all
of such party’s assets or voting securities to such party’s successor;
and Observe Inc. may assign this Agreement in its entirety to any
Affiliate. Each party shall promptly provide notice of any such
assignment. Any attempt to transfer or assign this Agreement
except as expressly authorized under this Section will be null and
13.2. Severability; Interpretation. If a court of competent
jurisdiction holds any provision of this Agreement to be
unenforceable or invalid, that provision will be limited to the
minimum extent necessary so that this Agreement will otherwise
remain in effect. Section headings are inserted for convenience only
and shall not affect the construction of the agreement.
13.3. Dispute Resolution. Each party agrees that before it
seeks any form of legal relief (except for a provisional remedy as
explicitly set forth below) it shall provide written notice to the other
party of the specific issue(s) in dispute (and reference the relevant
provisions of the contract between the parties which are allegedly
being breached). Within thirty (30) days after such notice,
knowledgeable executives of the parties shall hold at least one
meeting (in person or by video- or tele-conference) for the purpose
of attempting in good faith, to resolve the dispute. The parties agree
to maintain the confidential nature of all disputes and disagreements
between them, including, but not limited to, informal negotiations,
mediation or arbitration, except as may be necessary to prepare for
or conduct these dispute resolution procedures or unless otherwise
required by law or judicial decision. The dispute resolution
procedures in this Section shall not apply to claims subject to
indemnification under Section 11 (Indemnification) or prior to a party
seeking a provisional remedy related to claims of misappropriation
or ownership of intellectual property, trade secrets or Confidential
13.4. Governing Law; Jurisdiction and Venue; Observe Inc.
Affiliate. This Agreement will be governed by the laws of the State
of California and the United States without regard to conflicts of laws
provisions thereof, and without regard to the United Nations
Convention on the International Sale of Goods; and (ii) t he
jurisdiction and venue for actions related to the subject matter
hereof will be the state and federal courts located in San Francisco,
California and both parties hereby submit to the personal jurisdiction
of such courts. While the Observe Inc. entity contracting with
Customer or the Customer Affiliate remains fully liable and
responsible for all Observe Inc. obligations under this Agreement, the
parties acknowledge that certain obligations under this Agreement
may be fulfilled by other Observe Inc.’s Affiliates, including, but not
limited to, Observe Inc. Inc.
13.5. Notice. Any notice or communication required or permitted
under this Agreement will be in writing to the parties at the
addresses set forth in this Agreement or at such other address as
may be given in writing by either party to the other in accordance
with this Section and will be deemed to have been received by the
addressee: (i) if given by hand, immediately upon receipt; (ii) if given
by overnight courier service, the first business day following
dispatch; (iii) if given by registered or certified mail, postage prepaid
and return receipt requested, the second business day after such
notice is deposited in the mail; or (iv) if given by email, immediately
upon receipt. Notwithstanding the foregoing, except for notices
pertaining to non-payment and except as otherwise expressly
permitted in this Agreement or in an Order Form, notices related to
termination of this Agreement or any claims (including without
limitation breach, warranty or indemnity) may not be given via email.
Email notifications to Observe Inc. shall be to
13.6. Amendments; Waivers. No supplement, modification, or
amendment of this Agreement will be binding, unless executed in
writing by a duly authorized representative of each party to this
Agreement, except as expressly set forth herein. No waiver will be
implied from conduct or failure to enforce or exercise rights under
this Agreement, nor will any waiver be effective unless in a writing
signed by a duly authorized representative on behalf of the party
claimed to have waived. No terms or conditions stated in a
Customer purchase order, vendor onboarding process or web
portal, or any other Customer order documentation (excluding Order
Forms) shall be incorporated into or form any part of this Agreement,
and all such terms or conditions shall be null and void,
notwithstanding any language to the contrary therein, whether
signed before or after this Agreement.
13.7. Entire Agreement. This Agreement is the complete and
exclusive statement of the mutual understanding of the parties and
supersedes and cancels all previous written and oral agreements
and communications relating to the subject matter of this
Agreement. Observe Inc. may change and update any Service (in
which case Observe Inc. may update the applicable Documentation
accordingly), subject to the warranty in Section 8.1 (Service
13.8. Third Party Beneficiaries. There are no third-party
beneficiaries under this Agreement.
13.9. Force Majeure. Neither party will be liable to the other for
any delay or failure to perform any obligation under this Agreement
(except for a failure to pay Fees) if the delay or failure results from
any cause beyond such party’s reasonable control, including but not
limited to acts of God, labor disputes or other industrial
disturbances, systemic electrical, telecommunications, or other
utility failures, earthquake, storms or other elements of nature,
blockages, embargoes, riots, public health emergencies (including
pandemics and epidemics), acts or orders of government, acts of
terrorism, or war.
13.10. Independent Contractors. The parties to this Agreement
are independent contractors. There is no relationship of partnership,
joint venture, employment, franchise or agency created hereby
between the parties. Neither party will have the power to bind the
other or incur obligations on the other party’s behalf without the
other party’s prior written consent and neither party’s employees are
eligible for any form or type of benefits, including, but not limited to,
health, life or disability insurance, offered by the other party to its
13.11. Export Control. Customer agrees to comply with all export
and import laws and regulations of the United States and other
applicable jurisdictions. Without limiting the foregoing, (i) Customer
represents and warrants that it is not listed on any U.S. government
list of prohibited or restricted parties or located in (or a national of)
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, (ii) Customer will not (and will not permit any third parties
- to) access or use any Service in violation of any U.S. export
embargo, prohibition or restriction, and (iii) Customer will not submit
to any Service any information that is controlled under the U.S.
International Traffic in Arms Regulations.
13.12. Federal Government End Use Provisions. Observe Inc.
provides the Service, including all related software and, to the extent
applicable the Observe Inc. Technology, for ultimate federal
government end use solely in accordance with the following:
Government technical data and software rights related to the
Service 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
227.7202-3 (Rights in Commercial Computer Software or Computer
Software Documentation). If a government agency has a need for
rights not granted under these terms, it must negotiate with
Observe Inc. to determine if there are acceptable terms for granting
those rights, and a mutually acceptable written addendum
specifically granting those rights must be included in any applicable
13.13. Counterparts. This Agreement may be executed in
counterparts, each of which will be deemed an original and all of
which together will be considered one and the same agreement.
- RESELLER ORDERS. Customer may procure the Service
directly from Reseller pursuant to a separate agreement that
includes the Reseller Order Form and other commercial terms (a
“Reseller Arrangement”). Observe Inc. will be under no obligation to
provide the Service to Customer under a Reseller Arrangement if it
has not received a Reseller Order Form for Customer. Reseller is
not authorized to make any changes to this Agreement or otherwise
authorized to make any warranties, representations, promises or
commitments on behalf of Observe Inc. or in any way concerning the
Service. If Customer procured the Service through a Reseller
Arrangement, then Customer agrees that Observe Inc. may share
certain Service Data with Reseller related to Customer consumption
of the Service.
“Acceptable Use Policy” means Observe Inc.’s acceptable use
“Account” means Customer’s account in the applicable Service in
which Customer stores and processes Customer Data.
“Affiliate” means an entity that, directly or indirectly, owns or
controls, is owned or is controlled by, or is under common ownership
or control with a party. As used herein, “control” means the power
to direct the management or affairs of an entity and “ownership”
means the beneficial ownership of more than fifty percent (50%) of
the voting equity securities or other equivalent voting interests of an
“Client Software” is any desktop client software included in the
applicable Service that is made available to Customer by Observe Inc.
for installation on end user computers.
“Confidential Information” shall mean all information that is
identified as confidential at the time of disclosure by the Disclosing
Party or should be reasonably known by the Receiving Party to be
confidential or proprietary due to the nature of the information
disclosed and the circumstances surrounding the disclosure. All
Customer Data will be deemed Confidential Information of
Customer without any marking or further designation. All Observe Inc.
Technology and the terms and conditions of this Agreement will be
deemed Confidential Information of Observe Inc. without any marking
or further designation. Confidential Information shall not include
information that the Receiving Party can demonstrate: (i) was
rightfully in its possession or known to it prior to receipt of the
Confidential Information; (ii) is or has become public knowledge
through no fault of the Receiving Party; (iii) is rightfully obtained by
the Receiving Party from a third party without breach of any
confidentiality obligation; or (iv) is independently developed by
employees of the Receiving Party who had no access to such
“Contractor” means the independent contractors and consultants
permitted by Customer to serve as Users of the Service.
“Customer Data” means any data or data files of any type that are
uploaded by or on behalf of Customer to the Service for storage in
a data repository.
“Data Protection Claims” means any claims arising from a party’s
breach of Section 2.3 (Data Privacy), Section 3 (Security), or
Section 5 (Confidentiality), where such breach results in the
unauthorized disclosure of Customer Data, or breach of Section 2.2
“Deliverables” means the guides, code (including SQL queries) or
other deliverables that Observe Inc. provides to Customer in
connection with Technical Services. For clarity, Observe Inc. may use
compilers, assemblers, interpreters and similar tools to develop
Deliverables. The term “Deliverables” does not include such tools.
“Disclosing Party” is defined in Section 5 (Confidential
“Documentation” means Observe Inc.’s technical documentation and
usage guides for the applicable Service
“DPA” means the Customer Data Processing Addendum attached
here to as Exhibit B and incorporated herein by this reference.
“Excluded Claims” means (a) a party’s breach of its obligations in
Section 5 (Confidential Information) (but excluding obligations
and/or claims relating to Customer Data); (b) either party’s express
obligations under Section 11 (Indemnification); and (c) liability
which, by law, cannot be limited.
“Feedback” is defined in Section 4.1 (Observe Inc. Technology).
“Fees” means the fees payable by Customer for the applicable
Service or Technical Services, as set forth in an Order Form or
Statement of Work. For Technical Services, the term Fees also
includes travel, lodging, meal and other expenses incurred in the
course of providing Technical Services, but only if the applicable
SOW specifies that expenses are reimbursable.
“HIPAA” means the Health Insurance Portability and Accountability
Act, as amended and supplemented.
“HIPAA Data” means any patient, medical or other protected health
information regulated by HIPAA or any similar federal or state laws,
rules or regulations.
“Order Form” means the Observe Inc. ordering document (and/or an
SOW, if applicable) executed by both Customer and Observe Inc.
which specifies the services being provided by Observe Inc. and that
is governed by this Agreement.
“Reader Accounts”, “Read Only Consumers”, and “Read Only
Users” are respectively as defined in Section 1.4(d) (Reader
“Receiving Party” is defined in Section 5 (Confidentiality).
“Retrieval Right” is defined in Section 7.3 (Effect of Termination;
Customer Data Retrieval).
“Sample Data” means any data (including from third-party sources)
provided or made available to Customer by Observe Inc. solely for
Customer’s internal testing, evaluation, and other non-productive
use of the Service during the Subscription Term.
“Security Policy” means the Observe Inc. Security Policy attached
hereto as exhibit C and incorporated herein by this reference.
“Service” means a Observe Inc. software-as-a-service offering made
generally available and ordered by Customer as set forth in an
“Observe Inc.” means Observe Inc. Inc. or its Affiliate which executes
an Order Form that is governed by this Agreement.
“Observe Inc. Technology” is defined in Section 4.1 (Observe Inc.
“SOW” shall have the meaning set forth in the TSA.
“Subscription Term” means the set term designated on an Order
“Support Policy” means the Observe Inc. Support Policy
“Taxes” means taxes, levies, duties or similar governmental
assessments of any nature, including, for example, any sales, use,
GST, value-added, withholding, or similar taxes, whether domestic
or foreign, or assessed by any jurisdiction, but excluding any taxes
based on net income, property, or employees of Observe Inc..
“Technical Services” shall mean the consulting, configuration or
other professional services provided by Observe Inc. to Customer
under an Order Form or Statement of Work.
“Third Party Applications” means separate services or
applications (and other consulting services related thereto),
procured by Customer from a party other than Observe Inc. that can
be used in connection with the Service.
“Usage Data” means query logs, and any data (other than
Customer Data) relating to the operation, support and/or about
Customer’s use of the Service.
“User” means the persons designated and granted access to the
Service by or on behalf of Customer, including its and its Affiliates’
“VAT/GST Registration Number” means the value added
tax/GST registration number of the business location(s) where
Customer is legally registered and the ordered services are used for