Privacy Policy

Last Updated: August 27, 2020

This privacy policy (“ Policy ”) describes how Observe, Inc. and its related companies (“ Company ”) collect, use and share personal information of consumer users of this website, www.observeinc.com (the “ Site ”). This Policy also applies to any of our other websites that post this Policy. This Policy does not apply to websites that post different statements.

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 to protect the rights and property of Observe, Inc., our agents, customers, and others. This includes enforcing our agreements, policies, and terms of use.

  • 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

We care about the privacy of our Users and the security of their PII. You understand that by using the Services you consent to the collection, use and disclosure of your PII and aggregate and/or anonymized data as set forth in our Privacy Policy, and to have your PII collected, used, transferred to and processed in the United States. We care about the integrity and security of your PII. However, we cannot guarantee that unauthorized third-parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your PII at your own risk.

Data Retention

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.

Data Security

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.

 

Contact Information

We welcome your comments or questions about this privacy policy.
You may also contact us at our address:

Observe, Inc.
2 East 3rd Avenue
San Mateo, CA 94401

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Changes to This Privacy Policy

We may change this privacy policy. If we make any changes, we will change the Last Updated date above.

 

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

YOU.

 

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.

 

  1. 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

Agreement.

 

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

Policy.

 

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.

 

  1. 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

Data. 

 

2.3. Data Privacy. The parties shall comply with the DPA.

 

  1. SECURITY. The parties shall comply with the Security Policy.

 

  1. 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.

 

  1. 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.

 

  1. 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

ordered services.

 

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.

 

  1. 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

hereunder.

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

governmental entities.

 

  1. WARRANTY

 

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.

 

  1. 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

Support Policy.

 

  1. 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

party rights.

 

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.

 

  1. INDEMNIFICATION

 

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

property infringement.

 

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.

 

  1. 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

ADVANCE;

(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

CAP;

(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).

 

  1. 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

void.

 

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

Information.

 

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

hello@ObserveInc..com.

 

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

Warranty).

 

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

employees.

 

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

  1. 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

agreement.

 

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.

 

  1. 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.

 

  1. DEFINITIONS

“Acceptable Use Policy” means Observe Inc.’s acceptable use

Policy
“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

entity.

 “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

information.

“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

(Use Obligations).

“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

Information).

“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

Accounts).

“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

Order Form.

“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.

Technology).

“SOW” shall have the meaning set forth in the TSA.

“Subscription Term” means the set term designated on an Order

Form.

“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’

Contractors.

“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

business use.

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