Agreement for Teleseer users and customers.
Last updated: January 9, 2026
Software License Agreement
This Software License Agreement (“Agreement”) between the ordering entity (“End User”) and Contractor (“Cyberspatial”), a Delaware corporation with its principal place of business located at 2451 Crystal Dr., Suite 600, Arlington VA 22202, United States, each a “Party” and collectively the “Parties,” sets forth the terms and conditions pursuant to which End User will license or access Cyberspatial Software.
The following capitalized terms will have the meanings indicated below unless otherwise specifically defined in this Agreement.
“Content.” means any data or other content that is created or provided by End User or Authorized Users, whether directly or indirectly from a third party, for transmission, storage, integration, import, display, distribution or use in or through use of the Software, including any aggregated or transformed versions thereof and any analytical outputs.
“Documentation.” means the technical specification documentation regarding the Software.
“Intellectual Property Rights.” means any all right, title, and interest in and to any and all patents, copyrights, service marks, trademarks, know-how, trade secrets, trade names, rights in trade dress and packaging, moral rights, rights of privacy, rights of publicity, and similar rights of any type, including any applications, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any governmental, regulatory, or judicial authority.
“Contract.” means the contract through which End User purchases the Cyberspatial Software and Hardware.
“Materials.” means any data, technology, and materials provided or made available to End User by Cyberspatial for use with the Software pursuant to this Agreement, including sample code, software libraries, command line tools, data integration code, templates, parsers, and configuration files.
“Hardware”. means Software sold by Cyberspatial under the Contract that have Software installed.
“Software.” means the Cyberspatial proprietary commercial software in an End User-hosted or managed cloud-hosted environment, any third-party software or data feeds, the Product Access Software, application programming interfaces (“API”), software development kit (“SDK”), features, add-ons, Updates, Documentation, Materials and models or algorithms in any format specified in the Contract (and any related purchase orders, statements of work, or amendments, in each case incorporated into this Agreement) or provided or made available to End User in connection with this Agreement.
“Updates.” means any improvements, modifications, derivative works, patches, updates, and upgrades to the Software that Cyberspatial at its discretion may implement in the applicable generally available Software without requiring the payment of additional fees. Updates do not include new product or service offerings that Cyberspatial makes available for an additional charge.
End User Hosted Software. If End User hosting is specified in the Contract, subject to End User’s continued and full compliance with all of the terms and conditions of this Agreement, Cyberspatial hereby grants to End User a non-transferable, non-assignable, non-exclusive, non-sublicensable, limited license, to install, execute, and use the Software specified in the Contract in object code format solely for End User’s internal purposes, during the Contract Term (as defined below), and only (a) for use in accordance with the Documentation, (b) if specified, for the number of Cyberspatial Core Licenses specified in the applicable Contract, and (c) for the purpose(s), configuration(s), and module(s), user(s), and usage allowance(s) specified in the Contract and any associated statements of work. The license(s) granted in the Contract shall not be fungible and shall not be reallocated or expanded by End User to any purpose, configuration, module, user, or usage allowance not specified in the Contract.
Cloud Hosted Software. If Cyberspatial cloud hosting is specified in the Contract, subject to End User’s continued and full compliance with all of the terms and conditions of this Agreement, including without limitation End User’s payment of all fees due under the Contract, Cyberspatial will (a) provide End User with access to a single instance of the Software as specified in the applicable Contract during the applicable Contract Term solely for End User’s internal purposes, and only (i) to use, access, display, and run in accordance with the Documentation, (ii) if specified, for the number of Cyberspatial Core Licenses specified in the applicable Contract, and (iii) for the purpose(s), configuration(s), module(s), user(s), and usage allowance(s) specified in the Contract and any associated statements of work; and (b) provide other Software as necessary to deliver the Software. The license(s) granted in the Contract shall not be fungible and shall not be reallocated or expanded by End User to any purpose, configuration, module, user, or usage allowance not specified in the Contract.
Trial and Beta Software. If a Contract specifies that Cyberspatial is providing End User with a trial, evaluation, developer license to, or beta version of Software (the “Trial Software”), End User agrees to use the Trial Software solely for evaluation purposes, in a non-production environment, for a 30-day evaluation period unless a different period is specified in the Contract (the “Trial Period”). At the end of the Trial Period, End User’s right to use the Trial Software automatically expires and End User shall uninstall the Trial Software and return all copies or partial copies of the Trial Software to Cyberspatial. If End User desires to continue its use of the Trial Software beyond the Trial Period, the Parties will enter into a new Contract for the Trial Software for the applicable fees. IN ADDITION TO ANY DISCLAIMERS IN SECTION 11.3, TRIAL PRODUCTS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. Cyberspatial HAS NO LIABILITY FOR CUSTOMER’S USE OF THE TRIAL PRODUCTS UNDER ANY THEORY OF LIABILITY. Cyberspatial does not provide support for Trial Software. Trial Software may be subject to reduced or different security, compliance and privacy commitments. The following Sections of the Agreement do not apply to Trial Software: 7.1, 10, 11.1.
Embedded Software. This Agreement will apply to all Software installed on Cyberspatial Hardware. Software may only be used with Hardware delivered by Cyberspatial and may not be transferred to any other hardware, device, system, or storage.
Software Delivery. Software are deemed delivered upon being made available to End User for download, installation, or access. End User is solely responsible for installing any Software as permitted under the Agreement unless otherwise set forth in a Contract. Where delivery is electronic, Cyberspatial may or may not provide any physical media or hard copy Documentation to End User. Software are deemed accepted upon delivery.
Authorized User Accounts. Cyberspatial will provide End User with the capability to provision and establish accounts to access the Software (“Accounts”) for End User’s employees or independent contractors with a need to access the Software on behalf of End User for its internal purposes (“Authorized Users”), on the condition that End User has confidentiality obligations in place for each Authorized User at least as restrictive as those stated herein and, upon request by Cyberspatial, provides Cyberspatial with company names of any independent contractors who have access to the Software.
Fees. End User shall pay to Cyberspatial the total amount of fees set forth in and in accordance with the terms of the Contract.
Verification of Use. End User shall allow Cyberspatial to audit End User’s use of the Software during the term of the Agreement and for 24 months thereafter. Cyberspatial may only conduct an audit once per 12-month period, and audits will be scheduled at a mutually agreeable time at End User’s facilities during normal business hours. End User will provide Cyberspatial and its independent auditors with access to End User’s equipment, books, records, and operations at reasonable times, and End User will cooperate in all respects necessary to enable Cyberspatial and its independent auditors to verify End User’s compliance with the Agreement. If an audit reveals that End User has failed to pay Fees consistent with its use of the Cyberspatial Offerings, End User will pay Cyberspatial the applicable Fees for the overuse, based on the then-current per-unit rate on the applicable Contract, and reimburse Cyberspatial for all reasonable costs and expenses incurred by Cyberspatial in connection with that audit.
Account Protection. End User shall be solely responsible for (a) administering and protecting Accounts; (b) providing access to the Software only to Authorized Users; (c) requiring such Authorized Users to keep Account login information, including user names and passwords, strictly confidential, and not to provide such Account login information to any unauthorized parties; (d) using industry standard security measures to protect Accounts (including, without limitation, using multi-factor authentication to access the Software); and (e) any use of the Software that occurs on End User’s Accounts. End User shall inform each Authorized User of its obligations under, and ensure that each Authorized User at all times abides by, the terms of this Agreement. End User shall be responsible and liable for any breach of this Agreement by an Authorized User. In the event that End User or any Authorized User becomes aware that the security of any Account login information has been compromised, or upon Cyberspatial’s reasonable request, End User shall immediately de-activate such Account or change the Account’s login information. End User shall immediately notify Cyberspatial in the event that End User or an Authorized User becomes aware of any violation of the terms of this Agreement.
End User Content Use. End User shall provide Cyberspatial with all information, assistance, and materials, including access to Content, as reasonably required for Cyberspatial to activate and operate the Software for End User pursuant to this Agreement. End User grants to Cyberspatial a non-exclusive worldwide license to use, copy, store, process, transmit, retrieve, and display such information and materials in connection with the provision of the Software for End User.
End User Ownership. As between the Parties, End User retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Content.
Cyberspatial Ownership. As between the Parties, Cyberspatial retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Software provided by Cyberspatial (including without limitation all Intellectual Property Rights embodied in any of the foregoing). No ownership rights are being conveyed to End User under this Agreement. Except for the express rights granted herein, Cyberspatial does not grant any other licenses or access, whether express or implied, to any Software. End User will maintain and not remove, obscure, or alter any copyright notice, trademarks, logos, and trade names and any other notices or product identifications that appear on or in any Software and any associated media.
Restrictions. End User will not (and will not allow any third party to): (a) gain or attempt to gain unauthorized access to the Software, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Software; (b) interfere with or disrupt the integrity or performance of the Software; (c) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Software; (d) decompile, disassemble, scan, reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (e) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Software for the benefit of any third party; (f) list or otherwise display, or copy, any code or multimedia assets of any Software, except for Cyberspatial Materials to the extent necessary for End User’s use of the Software; (g) copy any Software (or component thereof) or develop any improvement, modification, or derivative work thereof, except solely for Cyberspatial Materials to the extent necessary for End User’s use of the Software; (h) include any portion of any Software in any other service, equipment, or item; (i) allow the transfer, transmission (including without limitation making available on-line, electronically transmitting, or otherwise communicating, to the public), export, or re-export of any Software (or any portion thereof) or any Cyberspatial technical data; (j) perform benchmark tests on the Software; or (k) use, evaluate, or view the Software for the purpose of designing, modifying or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure, or any portion thereof, which performs functions similar to the functions performed by the Software provided, however, that subject to the other terms and conditions of this Agreement, End User shall be permitted to develop software that interfaces with the APIs or SDKs Cyberspatial makes available for End User’s use under this Agreement, provided further that End User shall not attempt to, or encourage any third party to, sell, rent, lease, license, sublicense, distribute, transfer, or syndicate such software, without prior written approval from Cyberspatial.
Open Source Software. Notwithstanding the foregoing, or any statement to the contrary herein, portions of the Software may be provided or made available with notices and open source or similar licenses from such communities and third parties that govern the use of those portions, and End User hereby agrees to be bound by and fully comply with all such licenses, and any licenses or access granted hereunder shall not alter any duties or obligations End User may have under such open source or other licenses; however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all such Software.
Unless expressly required by applicable law, End User shall keep strictly confidential all Confidential Information (as defined below) of Cyberspatial, and shall not use or process such Confidential Information except to exercise its rights and perform its obligations herein, and shall not disclose or permit the unauthorized transfer of such Confidential Information to any third party other than disclosure on a need-to-know basis to its own employees, agents, advisors, attorneys, and/or bankers who are each subject to obligations of confidentiality at least as restrictive as those stated herein. Without limiting the foregoing, End User shall use at least the same degree of care as it uses to prevent the disclosure or unauthorized transfer of its own confidential information of like importance, but in no event less than reasonable care. End User shall promptly notify Cyberspatial of any actual or suspected misuse or unauthorized disclosure of Cyberspatial’s Confidential Information. “Confidential Information” means (a) Software (including any information or data relating thereto); and (b) any other business, technical, or engineering information or data (including third-party information) disclosed or made available by or on behalf of Cyberspatial under this Agreement whether furnished before, during, or after the Contract Term. Confidential Information shall not include any information that (a) is or becomes part of the public domain through no act or omission of End User in breach of this Agreement; (b) is known to End User at the time of disclosure (as evidenced by written records) without an obligation to keep it confidential; (c) becomes rightfully disclosed to End User from another source without any breach of confidentiality by the third-party discloser and without restriction on disclosure or use; or (d) End User can document by written evidence that such information was independently developed without the use of or any reference or access to Confidential Information, by persons who did not have access to the relevant Confidential Information. End User is responsible and shall be liable for any breaches of this Section and any disclosure or misuse of any Confidential Information by its employees, independent contractors, agents, or other persons to whom Confidential Information was disclosed. End User’s obligations with respect to Cyberspatial’s Confidential Information shall survive termination of this Agreement for a period of fifteen (15) years; provided, that End User’s obligations hereunder shall survive and continue in perpetuity after termination with respect to any Confidential Information that is a trade secret under applicable law.
U.S. GOVERNMENT END USERS
This section applies when the End User is the U.S. Government. The individual executing this Agreement for the U.S. Government represents he/she has authority to obligate the U.S. Government.The Software qualifies as “commercial computer software” as defined at 48 C.F.R. 2.101. Cyberspatial developed the Software exclusively at private expense for commercial purposes, sells Software commercially, and offers Software for sale commercially. In accordance with 48 C.F.R. 12.212 (civilian agencies) or 48 C.F.R. 227.7202-1 (defense agencies), the license or access grant is solely governed by this Agreement and any other use is strictly prohibited. In no event shall source code be provided, licensed, or considered to be a deliverable under this Agreement. Notwithstanding anything to the contrary, these terms and conditions describing the Government’s use and rights are in lieu of, and supersede, any conflicting provisions that address Government rights in the Software, related documentation, and technical data that may be incorporated in any contract or subcontract under which the Software are accessed or licensed.To the extent any requirement of this Agreement violates federal law; e.g., indemnification by the Government, auto-renewal/evergreen, interest on late payments, subjecting the U.S. Government to the jurisdiction of a state, and right to defend any claim or suit brought against the U.S. pursuant to its jurisdictional statute, 28 U.S.C. § 516, the applicable federal law will apply instead. Any rider or revisions to the EULA required by the U.S. Government is not applicable unless it is accepted in writing by Cyberspatial.
Term License. If a term license is specified in the Contract, the Contract Term shall be the number of months or years set forth in the Contract.
Termination. Cyberspatial may terminate this Agreement immediately if End User breaches Sections 2 (Software License), 3 (Customer Use of Software), 4 (Proprietary Rights), 5 (Confidentiality), or 10 (Customer Representations and Warranties) or for non-payment of fees under the Contract.
Suspension. Cyberspatial reserves the right to suspend access to, and provision of, the Cyberspatial Offerings provided to End User if: (a) End User is delinquent on any payment obligations for more than 30 days following written notice of late payment; (b) Cyberspatial reasonably believes that suspension of the Cyberspatial Offerings is necessary to comply with the law or requests of governmental entities; or (c) Cyberspatial reasonably determines that End User’s use of the Cyberspatial Offerings in violation of this Agreement poses any security or vulnerability risk to Cyberspatial, its other customers, or the Cyberspatial Offerings. End User is only responsible for Fees during the period of suspension if the underlying cause was End User’s breach of the Agreement. Cyberspatial will endeavor to give advance notice of the suspension, to the extent it is able, taking into account the nature of the underlying cause. Cyberspatial will restore access to the suspended Cyberspatial Offerings promptly after the underlying cause of suspension is mitigated.
Perpetual License. If a perpetual license is specified in the Contract, this Agreement will remain in effect in perpetuity unless otherwise terminated as provided herein.
Effect of Termination. Unless otherwise specified in the Contract, upon any termination or expiration of this Agreement, all of End User’s rights, access, and licenses granted hereunder to the Software and Services shall immediately cease and End User shall promptly return to Cyberspatial or destroy all Software, including all portions thereof and all other Confidential Information, and so certify its compliance with the foregoing to Cyberspatial in writing within ten (10) days of termination or expiration. Upon any termination or expiration of this Agreement and End User’s written request, Cyberspatial will provide End User access to the Content in a format and media reasonably accessible to End User for thirty (30) days and will thereafter use reasonable methods to delete or otherwise make all such Content inaccessible.
Survival. No termination or expiration of this Agreement shall limit or affect either Party’s rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation payment obligations). Sections 3.3, 3.4, 4, 5, 9, 10, 11, 12, 13, and 14 shall survive any termination or expiration of this Agreement. Termination is not an exclusive remedy and all other remedies will remain available.
Cyberspatial has a right to (a) intervene to defend End User against any claim of infringement or violation of any patent, copyright, or trademark asserted against End User by a third party based upon End User’s use of the Software in accordance with the terms of this Agreement and (b) indemnify and hold harmless End User from and against damages, costs, and reasonable attorneys’ fees, if any, finally awarded pursuant to a non-appealable order by a court of competent jurisdiction in such claim or settlement entered into by Cyberspatial. If End User’s use of any of the Software is, or in Cyberspatial’s opinion is likely to be, enjoined by a court of competent jurisdiction due to the type of infringement specified above, or if required by settlement approved by Cyberspatial in writing, Cyberspatial may, in its sole discretion: (1) substitute for the Software substantially functionally similar products; (2) procure for End User the right to continue using the Software; or (3) if Cyberspatial reasonably determines that options (1) and (2) are commercially impracticable, Cyberspatial may terminate this Agreement. The foregoing obligations of Cyberspatial shall not apply: (A) if the Software are modified by any party other than Cyberspatial, but only to the extent the alleged infringement would not have occurred but for such modification; (B) if the Software are modified by Cyberspatial at the request of End User, but only to the extent the alleged infringement would not have occurred but for such modification; (C) if the Software are combined with other non-Cyberspatial products or processes not authorized by Cyberspatial, but only to the extent the alleged infringement would not have occurred but for such combination; (D) to any unauthorized use of the Software, any use that is not consistent with the Documentation, or use during any period of suspension; (E) to any superseded release of the Software or Product Access Software if the infringement would have been avoided by the use of a current release of the Software or Product Access Software that Cyberspatial has provided or made available to End User prior to the date of the alleged infringement; (F) to any Content; or (G) to any third-party products, software, or services contained within or used to deliver the Software (including any open source software).
Indemnification Procedure. The obligations of Cyberspatial under this Section shall be conditioned upon End User providing Cyberspatial with: (a) prompt written notice (in no event to exceed five (5) business days) of any claim, suit, or demand of which it becomes aware; (b) the right to assume the exclusive defense and control of any matter that is subject to indemnification (provided that Cyberspatial will not settle any claim unless it unconditionally releases End User of all liability and does not admit fault or wrongdoing by End User); and (c) cooperation with any reasonable requests assisting Cyberspatial’s defense and settlement of such matter (at Cyberspatial’s expense).
Exclusive Remedy. THIS SECTION SETS FORTH CYBERSPATIAL’S SOLE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO, ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
Cyberspatial Representations and Warranties. Cyberspatial warrants that during the Contract Term: (a) the Software as delivered to End User will perform substantially in accordance with the applicable Documentation and (b) the Services will be provided in a professional and workmanlike manner and by an adequate staff with knowledge about the Software. This warranty covers only problems reported to Cyberspatial in writing (including a test case or procedure that recreates the failure and full documentation of the failure) during the warranty period. In the event of a material failure of the Software to perform substantially in accordance with the specifications during the warranty period (“Defect”), Cyberspatial shall use reasonable efforts to correct the Defect or provide a suitable work around as soon as reasonably practical after receipt of End User’s written notice as specified above. A Defect shall not include any defect or failure attributable to improper installation, operation, misuse or abuse of the Software or any modification thereof by any person other than Cyberspatial.
Disclaimer. NO AMOUNTS PAID HEREUNDER ARE REFUNDABLE OR OFFSETTABLE EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11.1, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY OTHER WARRANTIES OF ANY KIND, AND CYBERSPATIAL AND ITS SUPPLIERS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATING TO THE PRODUCTS AND ANY SERVICES PROVIDED HEREUNDER OR SUBJECT MATTER OF THIS AGREEMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING LIMITATION, CYBERSPATIAL DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER REQUIREMENTS OR GUARANTEE ANY RESULTS, OUTCOMES, OR CONCLUSIONS OR THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. CYBERSPATIAL IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICE (INCLUDING, WITHOUT LIMITATION, UPTIME GUARANTEES, OUTAGES, OR FAILURES). CUSTOMER ACKNOWLEDGES THAT CYBERSPATIAL DOES NOT CONTROL THE TRANSFER OF DATA, INFORMATION, OR CONTENT OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET OR THIRD-PARTY SERVICES, AND THAT THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. CYBERSPATIAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
General. End User represents that it has validly entered into this Agreement and has the legal power to do so.
Use of Software. End User warrants and covenants that it will not use the Software for any unauthorized, improper or illegal purposes, including but not limited to (a) discrimination, (b) harassment, (c) compromising information and data security or confidentiality, (d) harmful or fraudulent activities, (e) violation of privacy or constitutional rights of individuals or organizations, or (f) violation of third-party contractual agreements or local, state, or Federal laws, regulations, or ordinances.
End User Content. End User warrants and covenants that (a) it will not transmit, store, integrate, import, display, distribute, use or otherwise make available any Content that is, or is obtained in a manner that is, unauthorized, improper or illegal; (b) no Content infringes upon or violates any other party’s Intellectual Property Rights, privacy, publicity or other proprietary rights; (c) this Agreement imposes no obligations, by contract or local, state, Federal, or international law, regulation or ordinance, with respect to Content, unless explicitly mutually agreed upon in writing; and (d) End User has provided all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required by any applicable laws or policies in order to enable Cyberspatial to receive and process Content, including personal data, according to the scope, purpose, and instructions specified by End User. End User acknowledges that all Content that End User transmits, stores, integrates, imports, displays, distributes, uses, or otherwise makes available through use of the Software, and the conclusions drawn therefrom, are done at End User’s own risk and End User will be solely liable and responsible for any damage or losses to any party resulting therefrom. Cyberspatial has the right to immediately suspend the Software (1) in order to prevent harm to Cyberspatial or its business and to limit any potential liability; (2) if End User is in breach of this Agreement; or (3) if required to do so pursuant to applicable law or regulation or requests or orders of governmental, regulatory, or judicial authorities.
LIABILITY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER AGREES THAT CYBERSPATIAL SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY REGARDLESS OF THE LEGAL THEORY USED TO MAKE A CLAIM, AND WHETHER OR NOT BASED UPON CYBERSPATIAL’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION, FOR ANY: (A) LOSS, ALTERATION, CORRUPTION OF, OR UNAUTHORIZED ACCESS TO CONTENT; (B) COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS OR SERVICES, OR COST OF REPLACEMENT, OR RESTORATION OF ANY LOST OR ALTERED CONTENT; (C) DELAYS OR UNAVAILABILITY OF ANY PRODUCTS OR SERVICES, ECONOMIC LOSSES, EXPECTED OR LOST PROFITS, REVENUE, OR ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF CONTRACTS, OR LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION; AND/OR (D) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, WHETHER ARISING OUT OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE PRODUCTS, OR FOR ANY MATTER BEYOND CYBERSPATIAL’S REASONABLE CONTROL, EVEN IF CYBERSPATIAL HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF CYBERSPATIAL ON ALL CLAIMS OF ANY KIND UNDER THE AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, STRICT LIABILITY, PRODUCT LIABILITY, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY OR RESULTING FROM THIS AGREEMENT OR ANY PRODUCTS OR SERVICES, SHALL NOT EXCEED THE FEES PAID OR PAYABLE TO CYBERSPATIAL BY CUSTOMER UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR THE SOFTWARE THAT GAVE RISE TO SUCH CLAIM AND THAT SUCH REMEDY IS FAIR AND ADEQUATE.
End User is permitted to state publicly that it is a customer of Cyberspatial. Cyberspatial may publish a brief description of End User’s deployment of the Software and may use End User’s name as a Cyberspatial customer on any of Cyberspatial’s websites, client lists, press releases, and/or other marketing or promotional materials. Any public use hereunder by either Party (a) shall be consistent with any trademark or branding guidelines provided by the other Party and (b) shall in no event disparage or demean the other Party.
End User’s rights under this Agreement are subject to its compliance with all applicable export control laws and regulations. Unless otherwise specified by Cyberspatial, the Software and any Services provided hereunder are subject to U.S. trade controls and sanctions laws and regulations, including but not limited to the U.S. Export Administration Regulations (“EAR”) and the sanctions laws and regulations administered by the U.S. Office of Foreign Assets Control (“OFAC”) (“U.S. Trade Control Laws”) and may only be further exported or transferred in accordance with applicable requirements. It is End User’s responsibility to: (a) provide Cyberspatial with the necessary information for Cyberspatial to comply with applicable requirements; (b) ensure that all end-uses and end-users relating to End User’s reexports and retransfers of the Software and any Services comply with applicable controls; and (c) refrain from taking any action that causes Cyberspatial to violate applicable U.S. Trade Control Laws. Additionally, End User shall ensure that its employees, agents, and contractors are appropriately authorized to receive any deemed exports or reexports of Cyberspatial’s technology or software, in any form, as mandated by the U.S. Government. Cyberspatial will, upon written request, provide export classification information for the Software and any Services. Cyberspatial reserves the right to suspend or terminate performance of this agreement to the extent it reasonably concludes that performance would cause it to violate U.S. or other applicable trade laws.
Assignment. Neither this Agreement nor the access or licenses granted hereunder may be assigned, transferred, subcontracted, or sublicensed by End User; any attempt to do so shall be void. Cyberspatial may assign this Agreement in whole or in part to a Cyberspatial affiliate or pursuant to a Change of Control of Cyberspatial. As used herein, “Change of Control” means the: (a) consolidation or merger of Cyberspatial with or into any person or entity, including by operation of law; (b) sale, transfer or other disposition of all or substantially all of the assets of Cyberspatial’s business related to the subject matter of this Agreement; or (c) acquisition by any person or entity, or group of persons or entities acting in concert, of beneficial ownership of fifty point one percent (50.1%) or more of the outstanding voting securities or interests of Cyberspatial.
Notice. Any notice, report, approval, or consent required or permitted hereunder shall be in writing and sent by certified mail with return receipt requested or by facsimile or electronic mail, electronically confirmed and followed up immediately by regular mail (any email notice to Cyberspatial must be sent to legal@cyberspatial.com), or major commercial rapid delivery courier service to the address specified in the applicable Contract.
Severability. If any provision of this Agreement shall be adjudged by any court or board of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.
Amendment. Any and all modifications, waivers or amendments must be made by mutual agreement and shall be effective only if made in writing and signed by each Party.
Waiver. No waiver of any breach shall be deemed a waiver of any subsequent breach. The section headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement.
Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control including without limitation acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, viral pandemic or quarantine (excluding preexisting or reasonably foreseeable events as of the date of the Contract), governmental act, failure of the Internet, telecommunications or hosting service provider, computer attacks, or malicious acts; provided that the delayed Party: (1) gives the other Party prompt notice of such cause; and (2) uses its commercially reasonable efforts promptly to correct such failure or delay in performance.
Entire Agreement. This Agreement, including any exhibits hereto and any Contracts, 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.
Acknowledgement. The Parties expressly acknowledge that they have freely negotiated all clauses of this Agreement, in written exchanges, telephone conversations, and meetings, and that pursuant to these negotiations they have agreed to adopt this Agreement and hereby acknowledge the negotiated nature of this Agreement.
Precedence. In the event of a conflict between this Agreement and any exhibits hereto or Contracts, the terms and conditions of such exhibit or Contract will prevail.
No Third-Party Beneficiaries. No provision of the Agreement is intended nor will be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto are solely between Cyberspatial and End User.
Independent Contractor. The Parties are independent contractors. Nothing contained herein or done pursuant to the Agreement will constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever and neither party will have the right to make any warranty or representation to such effect.
Remedies. The Parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 2 (Provision of Software), Section 4 (Proprietary Rights) and Section 5 (Confidentiality) or any other provisions of the Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to seek specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.
No Other Rights. Except as expressly set forth in the Agreement, no additional rights are granted to End User. Cyberspatial hereby reserves all rights not expressly granted to End User under the Agreement.
Governing Law. a. U.S. government End Users. This Agreement is governed by United States Federal law.b. For all other End Users, the Parties agree (i) the laws of the State of Delaware govern all matters arising out of the Agreement, excluding rules as to the choice and conflict of law, and (ii) all disputes arising out of or in connection with the Agreement will be finally settled under the Commercial Arbitration Rules of the American Arbitration Association using expedited procedures by one or more arbitrators appointed in accordance with those Rules. The place of the arbitration will be Wilmington, Delaware.c. Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The Parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance to: (i) compel arbitration; (ii) obtain interim measures of protection before or pending arbitration, (iii) seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) enforce any decision of the arbitrator(s), including the final award. The Parties will share equally in the costs of the arbitration. Arbitrator(s) will award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable attorneys’ fees and costs, including the costs of the arbitration. The Parties shall keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a court or other judicial authority. If any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, then the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this Section only, “prevailing party” means the party that prevails on a majority of causes of action in such dispute.
Electronic Signatures. Electronic signatures that comply with applicable law are deemed original signatures.
Counterparts: The Agreement may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the Parties. Each signed counterpart, including a signed counterpart reproduced by reliable means (such as facsimile and electronic signature), will be considered as legally effective as an original signature.
