Crux End- User License Agreement

1.1 “Affiliate” means with respect to a Party, any entity that directly or indirectly owns or controls, is owned or controlled by or is under common control with such Party. 
1.2 “Crux Platform” means Crux’s proprietary platform for extracting, validating, transforming, and loading Data and from which Data is delivered using the Data Delivery Services.
1.3 “Data” or “Datasets” means any data or information as set out in the Order Form which are sourced from a Data Supplier, made available by a Customer, or supplied by Crux.
1.4 “Data Delivery Services” means the transmission of Data by Crux to Customer via the Google® GCP Marketplace or such other delivery mechanism as the Parties have agreed on an Order Form.
1.5 “Data Supplier” means any third-party licensor of Datasets or information.
1.6 “Intellectual Property Rights” means all intellectual property rights of any kind, whether registered or unregistered, including all patents, copyrights, trade secrets, trademarks, and other proprietary and intellectual property rights, including moral rights, and any and all other rights similar or analogous to any of the foregoing arising or granted in any jurisdiction, now or in future, anywhere in the world.
1.7  “Order Form” means the order confirmation process used to specify Datasets and Data Delivery Services agreed to be provided through the Google® GCP Marketplace.
1.8 “Processed Data” means Data that has been processed through the Crux Platform for delivery to a Customer via a Data Delivery Service. 
1.9 “Services” shall have the meaning set forth in Section 2.1. 

2.1 Crux Services.  Crux shall provide Customer with the Services confirmed on an Order Form through the Google® GCP Marketplace (the “Services”).

2.2 Crux Platform License.  Crux hereby provides Customer with a personal, non-exclusive, non-transferable license to use the Crux Platform for purposes of controlled access to the Datasets. The Crux Platform shall be used solely for Customer’s internal business purposes and not for any timesharing, outsourcing, reselling, or service-bureau purposes or otherwise for the benefit of a third party.   The Crux Platform is hosted on the Google Cloud Platform (“GCP”).  As a user of the GCP Customer is subject to the terms of the Google Platform License Agreement https://cloud.google.com/terms and any personal data (if applicable) processed through Crux will be subject to the Google Data Processing and Security Terms https://cloud.google.com/terms/data-processing-terms. If Crux selects an alternate cloud hosting solution, Crux shall notify Customer in writing at least fifteen (15) days prior to such transition and shall provide copies of any user terms and licenses applicable to such hosting solution.  If Crux decides to select an alternative cloud hosting solution, Customer shall enter into such terms of service as reasonably required by the new cloud hosting provider. 

2.3 Acknowledgement as to Customer Affiliates.   Crux and Customer hereby specifically acknowledge and agree that it is their intention that the Services be made available to Customer Affiliates.  Customer shall remain liable for all Data Supplier fees incurred for the use of the Services by a Customer Affiliate, as well as for the acts and omissions of any such Customer Affiliate.

3.1 Datasets and Data Rights.  Each Dataset shall be identified in an Order Form.  Customer shall at all times have and maintain all rights required or necessary to use the Datasets. If Customer’s rights to any Dataset is changed, modified, altered, or terminated by such Data Supplier, Customer shall immediately notify Crux of such event.

4.1 Term.  The term of this Agreement shall commence as of the Effective Date and shall continue so long as there is a valid Order Form in place; provided however that Crux may terminate this Agreement immediately if you fail to comply with the term(s) of this Agreement.

5.1 Fees.  Customer shall pay Crux fees or charges as agreed in the applicable Order Form, or as otherwise agreed, through the Google® GCP Marketplace, or if applicable, directly from Crux to Customer. All fees or charges due are payable immediately unless otherwise agreed in writing between the Parties.

5.2 Taxes.  Customer shall be responsible for and pay the sales, use, value added, excise, and similar taxes related to Customer’s use of the Services, regardless of the jurisdiction that imposes such taxes, excluding taxes based on or measured by Crux’s net income. 

6.1 Crux Proprietary Rights. Customer acknowledges and agrees that Crux is the sole and exclusive owner of or has the right to license or provide the Services and the Crux Platform and the related software, systems, database content, and related documentation and all intellectual property rights therein and/or related thereto including all improvements, derivate works or updates thereto (“Crux Intellectual Property”) and that Customer shall not modify or create derivative works of, copy, disclose, publish, display, or assign, transfer, sell, lend, sublicense, encumber rights to, or otherwise make available the Crux Intellectual Property or copies thereof to any third party, except as necessary to implement the Services and the Crux Platform, perform Customer’s obligations under this Agreement, or exercise the rights granted to Customer in this Agreement.

6.2 No Rights. This is an Agreement for access to and use of the Services and the Crux Platform.  Customer is not granted a license to any software by this Agreement. Customer will not (i) remove any proprietary notices or labels from the Services or the Crux Platform, (ii) modify, translate, or create derivative works based on the Services or the Crux Platform, or (iii) copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or the Crux Platform. 

7.1 Joint Warranties. Each of the Parties represents and warrants as to itself that (i) it has the authority to enter into and perform the duties and obligations described in this Agreement; (ii) the performance of the obligations and duties described in this Agreement does not conflict with any other agreement either signed or contemplated; and (iii) it will comply with all applicable laws with respect to its duties and obligations under this Agreement.

7.2 Joint Covenants. Each of the Parties represents, warrants and covenants as to itself that it has not  and shall not knowingly (i) incorporate into the Services, Crux Platform, Datasets or Processed Data any viruses, Trojan horses, trap doors, back doors, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information or (ii) include, without the other party’s prior written approval, any code that would have the effect of disabling or otherwise shutting down all or any portion of the Services, Crux Platform, Datasets or Processed Data or any software, computer, or technology of the other Party or its Affiliates

7.3 Customer Warranties. Customer represents, warrants, and covenants that: (i) Customer has, and will at all times have, the right to grant Crux and Crux’s Affiliates the rights granted to them in the Agreement and (ii) Customer has and shall maintain all rights, authorizations, permits, and licenses necessary and appropriate to utilize the Datasets  and any Customer Intellectual Property hereunder.   

7.4 Crux Warranties. Crux represents, warrants and covenants that: (i) Crux has and shall maintain all rights, authorizations, permits, and licenses necessary and appropriate to provide the Services and the Crux Platform hereunder, (ii) Crux’s obligations hereunder shall be performed at all times by qualified professional personnel, consistent with the standards prevailing in the industry; and  (iii) Crux shall use commercially reasonable efforts to ensure the integrity of the Datasets and Processed Data maintained and stored on the Crux Platform as part of the Services.

7.5 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 7, CRUX MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE CRUX PLATFORM OR SERVICES AND DOES NOT REPRESENT OR WARRANT THAT (I) THE USE OF THE CRUX PLATFORM OR SERVICES SHALL BE ENTIRELY SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, OR SYSTEMS NOT PRESCRIBED BY CRUX, (II) ALL ERRORS OR DEFECTS SHALL BE CORRECTED.  ALTHOUGH CRUX ENDEAVORS TO USE CARE IN RESPECT TO PROVIDING THE CRUX PLATFORM AND SERVICES, THE CRUX PLATFORM AND SERVICES ARE FURNISHED TO CUSTOMER ON AN “AS IS” BASIS WITH ALL FAULTS AND DEFECTS CONTAINED THEREIN AND CRUX DOES NOT WARRANT AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE CRUX PLATFORM OR SERVICES AND THE CRUX PLATFORM.

8.1  Confidential Information.  “Confidential Information” of a Party includes, whether it is presented in oral, printed, written, graphic, photographic, or other tangible form (including information received, stored, or transmitted electronically), (i) any and all communications concerning a Party’s or its Affiliates’ business and marketing strategies, including but not limited to, employee and customer lists, customer profiles, project plans, design documents, product strategies and pricing data, financial information, research, advertising plans, leads and sources of supply, development activities, design and coding; (ii) a Party’s computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, and other technical plans; (iii) other information of that Party or its Affiliates which by its nature can be reasonably expected to be proprietary and confidential, even though specific designation as Confidential Information has not been made; and (iv) the terms and conditions of this Agreement are the Confidential Information of both Parties.  Crux’s Confidential Information expressly includes the Crux Intellectual Property. 

8.2 Exclusions. Confidential Information does not include information that:  (i) entered the public domain (other than through unauthorized disclosure); (ii) prior to disclosure hereunder, was already in the receiving Party’s possession without obligation of confidentiality from a third party who has the right to disclose such information without restriction; (iii) subsequent to disclosure hereunder, is obtained by the receiving Party on a non-confidential basis from a third party who has the right to disclose such information without restriction; or (iv) was independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.

8.3 Protection; Non-Disclosure; Ownership.  Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner and degree that it protects the confidentiality of its own proprietary and confidential information (but in no event using less than reasonable care).  The Parties shall not use the other Party’s Confidential Information other than as necessary to carry out their duties under this Agreement or exercise the rights granted to them in this Agreement nor shall either Party disclose any such Confidential Information to third parties other than its consultants or agents who have a need to know such Confidential Information and who have entered into a written confidentiality agreement with the receiving Party consistent with the terms of this Section 8. The Parties further acknowledge and agree that the Confidential Information shall remain the sole and exclusive property of the disclosing Party and that the receiving Party shall not acquire any right, license, title, or ownership interest therein solely by virtue of this Section 8.

8.4 Disclosure Required by Law.  Notwithstanding anything to the contrary herein, each Party may comply with an order from a Governmental Body of competent jurisdiction and disclose the other Party’s Confidential Information in compliance with that order; provided that, to the extent permitted by applicable law, such Party gives the other Party prior notice of its intention to make such disclosure and fully cooperates with the other Party, at the other Party’s expense, in seeking a protective order or confidential treatment or taking other measures to oppose or limit such disclosure.

8.5 Return or Destruction of Confidential Information.  Upon the termination of this Agreement, except as otherwise may be provided under this Agreement, the receiving Party shall return or destroy all copies of documents, papers, or other material that may contain or be derived from the disclosing Party’s Confidential Information that are in the receiving Party’s possession or control; except that, the receiving Party may retain copies of written or printed Confidential Information to the extent required for the exercise of the licenses granted to it in this Agreement, for archival purposes, and to the extent required by applicable law.  The receiving Party shall, if requested by the disclosing Party, provide a certificate signed by the receiving Party in form and substance satisfactory to the disclosing Party, stating that all Confidential Information has been returned or destroyed.

8.6 Remedies.  If the receiving Party discloses or uses (or permits or threatens to disclose or use) any Confidential Information of the disclosing Party in breach of the confidentiality protections hereunder, the disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts.

8.7 Insights. Any insights resulting from Crux’s access to Customer’s Confidential Information in accordance with this Agreement shall not be subject to the confidentiality obligations contained herein, and Crux shall have the right to use such insights for any business purpose. For purpose of this Section 8.7 “Insights” means any information retained in the unaided memories of a recipient who had authorized access to the disclosing Party’s Confidential Information pursuant to the terms of the Agreement.  Memory is “unaided” if the recipient does not reference, copy, or intentionally memorize the information.

9.1 Limitation on Indirect Liability. EXCEPT AS SET FORTH IN SECTION 9.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, PROFITS OR REVENUE, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

9.2 Limitation on Amount of Liability. EXCEPT AS SET FORTH IN SECTION 9.3, EACH PARTY’S LIABILITY FOR ANY DAMAGES WITH RESPECT TO ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT EQUAL TO FIVE THOUSAND DOLLARS ($5,000).

9.3 Exclusions. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN SECTIONS 9.1 AND 9.2 SHALL NOT APPLY WITH RESPECT TO ANY CLAIMS BASED ON A BREACH OF SECTION 8 (CONFIDENTIALITY), THE PARTIES’ INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 (INDEMNIFICATION), CUSTOMER’S NON-PAYMENT OF FEES, EITHER PARTY’S FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, OR WITH RESPECT TO CLAIMS FOR PERSONAL INJURY OR TANGIBLE PROPERTY DAMAGE.  

10.1 Customer Indemnification. Customer, at its own expense, shall defend and hold harmless Crux, its Affiliates and permitted assignees, and their directors, officers, employees, members, managers, and agents (the “Crux Indemnified Parties”) against any claim, demand, or cause of action brought by a third party (a “Claim”) and losses, damages, costs, expenses (including reasonable attorneys’ fees), liabilities, judgments, assessments, and penalties (“Losses”) arising from any claim that Crux’s use of the Datasets or Customer Intellectual Property misappropriates, infringes, or violates any Intellectual Property Rights of any third party.  The foregoing indemnification obligations shall not apply to the extent such Claim or such Losses arise as a result of the gross negligence or willful misconduct of any Crux Indemnified Parties or Crux’s personnel or its’ subcontractors or agents.

10.2 Crux Indemnification. Crux, at its own expense, shall defend and hold harmless Customer,  its Affiliates and permitted assignees, and their directors, officers, employees, members, managers, and agents (the “Customer Indemnified Parties”) against any Claim or Losses  arising from any claim that the Services or Crux Platform or the use thereof in accordance with this Agreement misappropriates, infringes or violates any Intellectual Property Rights of any third party. The foregoing indemnification obligations shall not apply to the extent such Claim or such Losses arise as a result of the gross negligence or willful misconduct of any Customer Indemnified Parties or Customer’s personnel or its’ subcontractors or agents. The foregoing indemnification obligations shall not apply to the extent such Claim or such Losses arise as a result of the use of the Services or Crux Platform other than as expressly authorized by this Agreement.

10.3 Procedures. The indemnified party shall promptly notify the indemnifying party of any claim or action described in this Section 10 (although failure to do so will only relieve the indemnifying party of its obligations hereunder to the extent the indemnifying party was prejudiced thereby). The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense of any such claim or action. The indemnifying party shall have full control over the defense and settlement of any such claim or action, subject to this Section 10.3. The indemnified party shall have the right, at its own expense, to participate in the defense of any such claim or action. The indemnifying party shall have total control over all negotiations for the settlement or compromise of a claim or action, which such party is required to defend and/or handle under this Section 10, provided that such settlement or compromise is solely monetary in nature. Without limiting the generality of the foregoing, the indemnifying party may not, without the other party’s prior written consent, settle, compromise, or consent to the entry of any judgment in any such commenced or threatened claim or action, unless such settlement, compromise, or consent: (a) includes an unconditional release of the relevant indemnified party from all liability arising out of such commenced or threatened claim or action; and (b) does not include a statement as to or an admission of fault, culpability, or failure to act by, or on behalf of, the relevant indemnified party or otherwise adversely affect the relevant indemnified party.

11.1  Security Procedures. Crux shall use commercially reasonable efforts to, implement and maintain reasonable and appropriate safety, electronic, and physical security measures to ensure the confidentiality, integrity and availability of the Crux Platform, Data Delivery Services, Datasets and Processed Data. Such measures shall also cover any subcontractors engaged on behalf of Crux. 

11.2 Security Breaches. 
11.2.1 Crux shall: (i) notify Customer after Crux discovers a Security Breach (as defined below) that may impact the Customer; and (ii) comply with all applicable law related to Security Breaches, subject to a request by law enforcement or other government agency to withhold provision of such notice.  Crux’s notice to Customer of a Security Breach shall include an estimate of the effects of such Security Breach on Customer, specify the corrective actions Crux has taken or proposes to take, and contain material details of the Security Breach that are known at the time of notification.  

11.2.2 Crux shall promptly take commercially reasonable steps to contain and control any Security Breach. Crux shall maintain appropriate processes for evidence collection, analysis, and remediation of Security Breaches.

11.2.3 “Security Breach” means any event, including any unlawful or unauthorized access, use, acquisition, transmission, alteration, loss, disclosure, deletion, or destruction, that compromises the confidentiality, integrity or availability of (a) the Crux Platform, Data Delivery Services for the Datasets, Datasets, Processed Data when in Crux’s, its Affiliates’, or their respective hosting provider’s or such Person’s personnel’s possession or control or (b) the information systems of Crux, its Affiliates, or their respective hosting providers or such Person’s personnel containing any of the foregoing.
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11.3 Business Continuity Policy.
11.3.1 Crux shall maintain and implement a business continuity and disaster recovery plan (a “Business Continuity Policy”), which shall comply in all material respects with applicable law and generally accepted standards in the field. Crux shall, at the request of Customer, provide Customer with a copy of Crux’s then-current Business Continuity Policy. Crux shall maintain its Business Continuity Policy for all relevant locations from which its obligations under this Agreement are performed. Crux may change its Business Continuity Policy from time to time; provided that, such modified Business Continuity Policy continues to address the applicable requirements and recovery objectives described in Crux’s Business Continuity Policy. 

11.3.2 Upon Crux’s determination of an unexpected outage, as defined in its Business Continuity Policy, Crux shall commence the activities for which it is responsible under its Business Continuity Policy and then promptly notify Customer. Upon cessation of the disaster, Crux shall, as soon as reasonably practicable, provide Customer with an incident report detailing the reason for the disaster and a summary of the actions taken by Crux to resolve the disaster.

12. Force Majeure. Neither party will be liable to the other for any act of God, pandemic, terrorism, war, catastrophic weather condition, earthquake, failure or fluctuation in electrical power or other utility services, or Internet or telecommunications company failure or other events that are beyond the affected Party’s reasonable control. Both Parties shall use commercially reasonable efforts to minimize delays and service interruptions that occur due to a force majeure event.

13.1 No Promotion. Customer and Crux shall not issue any press release, make any public announcement relating to this Agreement, or use the other Party’s trademarks without the prior written consent of the other Party provided, however, that either Party may list the other Party as a customer in any customer list.

13.2 Assignment; Successors and Assigns. Client shall not assign this Agreement in whole or in part without the prior written consent of Crux. This Agreement shall be for the benefit of, and be binding upon, each Party and its successors and permitted assigns.

13.3 Choice of Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. This Agreement shall not be governed by the United Nations Conventions of Contracts, the application of which is hereby expressly excluded from any interpretation of this Agreement. The Parties hereby submit and consent to the exclusive jurisdiction of any state or federal court located within New York City, State of New York (USA), and agree that all actions or proceedings relating to this Agreement shall be litigated in such courts.

13.4 Severability; Waiver. If any provision of this Agreement is held invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions of this Agreement shall not in any way be affected or impaired and the invalid, illegal, or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the Parties’ intent underlying the invalid, illegal, or unenforceable provision.  Any failure of a Party to enforce or exercise any provision of this Agreement or related right shall not constitute a waiver of that right or provision. 

13.5 Questions. For any questions concerning this Agreement, you may contact Crux at the following email address: legal@cruxinformatics.com.

13.6 Independent Contractors. The Parties are independent contractors and nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship, or other joint enterprise between them.

13.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreement. 

13.8 Order of Precedence. In the event of a conflict between the terms and conditions of this Agreement or any Order Form, the terms and conditions of this Agreement shall control.

13.9 Amendments or Modifications. Except as otherwise stated herein, modifications or amendments to this Agreement shall be enforceable only if they are in writing and are signed by an authorized representative of both Parties.

13.10 No Third-Party Beneficiaries. Any Person who is not a Party to this Agreement shall not be entitled to any benefit from or to enforce any benefit under this Agreement, except those Persons indemnified pursuant to Section 10 shall be entitled to the benefits of such Section as provided therein.

13.11 Survival. The following Sections shall survive termination of this Agreement: 6, 7.5, 8, 9, 10 and 13.