This EPICA CUSTOMER DATA PLATFORM MANAGEMENT AGREEMENT (the “Agreement”) is made by and between EPICA, Inc. (“EPICA“) and the entity or person placing an order for or accessing the Service (“Customer“ or “you“). This Agreement consists of the terms and conditions set forth below and any EPICA ordering documents, order descriptions or order confirmations referencing this Agreement (“Order Forms“). If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.
EPICA INC (“EPICA”) offers the platform EPICA as owner and provides, through it, permission to customers for data collection from selected sources, processing its selected sources and sending that data to customer’s chosen destinations using artificial intelligence, in accordance with the terms and conditions of this Agreement. The “Effective Date“ of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service (as defined below) through registration or order process or (b) the effective date of the first Order Form 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.
EPICA reserves the right to modify this Agreement without notice. The CUSTOMER agrees that the continued use of the EPICA´s Platform constitutes the tacit acceptance of the terms described herein. The violation of any clause or term that is included in this Agreement by THE CUSTOMER, may result in the immediate termination of the service order generated to THE CUSTOMER without reimbursement of the payment received by “EPICA”
1.1. The CUSTOMER may access and use the Service for its internal business operations, subject to this Agreement, and any scope of use restrictions on the applicable Order Form.
1.2. As applicable, The CUSTOMER grants EPICA a non-exclusive right and worldwide license to:
1.3. Process and use Customer’s data; enable, establish and insert, read and modify the Enabling Code Customer’s properties.
1.4. Install, implement and use the Enabling Code provided by EPICA solely to (a) allow CUSTOMER to access, collect, receive and transmit Customer Data through EPICA’s platform; and (b) to allow The CUSTOMER to connect to, and transmit data to, EPICA services
1.5. Use Customer Data for (i) internal purposes related to internal optimization, statistical analysis, research and product improvement of EPICA, including development purposes, and (ii) in combination with (and the sale of) EPICA products, Technology, services and other offers of EPICA, which include, among others, the license of data, orientation to trade and advertising.
1.6. The CUSTOMER acknowledges that The CUSTOMER’s Data transmitted through the Service can be stored and processed by EPICA in the United States or in other countries in which EPICA or its subcontractors have facilities.
1.7. The rights and licenses granted in this document include licenses for all intellectual property rights owned or licensed by The CUSTOMER that are necessary to use The CUSTOMER Data as permitted in this Agreement. EPICA owns and owns exclusively all rights, licenses, copyrights and patent rights over all data (not included) created by EPICA as a result of this Agreement, including data used for optimization and product or service´s improvement and includes analysis results that arise from the use of EPICA of The CUSTOMER’s data.
2.1 EPICA will make available to The CUSTOMER the platform to be used within the internal business of The CUSTOMER in conjunction with the services listed in the order of services (hereinafter, “Services”), in accordance with the clauses of this Agreement. Except as otherwise stated in this Agreement or Customer´s order, Customer has the nonexclusive, limited right to use the Services during the period defined in Customer´s order, unless earlier terminated in accordance with this Agreement or the order (the “Services Period”). Customer is not allowed to use the Platform in any other way that is not expressly authorized by this License. Customer does not acquire under this Agreement any right or license to use the Services, in excess of the scope and/or duration of the Services stated in Customer´s order and in any other signed agreement between the parties. Upon the end of the Services ordered, Customer´s right to access and use the Services will terminate. Customer may allow its employees or permitted users to access the Platform for use in relation to the “Services” and Customer shall be responsible for the compliance of its employees with the clauses provided in this Agreement.
2.3 During the period of provision of the Services, EPICA may make, without prior notice, updates, adjustments and changes to the specifications of the Services, when required and in order to comply with, among other aspects, laws, regulations, standards, technology, industry practices, system usage guidelines. The adjustments, changes and updates that EPICA may make in relation to the Services or the Service Specifications shall not substantially affect the functionality, security or availability of the Services during the Period agreed upon in Your Order form.
3.1 The fee agreed upon for THE CUSTOMER is established in the Order of Services.
3.2 All fees payable are due within 30 days from the invoice date. Once placed, Customer´s order is non-cancelable and the sums paid nonrefundable, except as provided in this Agreement or Customer´s order. Customer will pay any sales, value-added or other similar taxes imposed by applicable law that we must pay based on the Services Customer ordered, except for taxes based on our income. Also, Customer will reimburse us for reasonable expenses related to any non-related EPICA services set forth in the order, such as professional services. Fees for Services listed in an order are exclusive of taxes and expenses.
3.3 If Customer exceed the quantity of Services ordered, then Customer promptly must purchase and pay fees for the excess quantity.
3.4 Customer understands that Customer may receive multiple invoices for the Services ordered. The invoices will be generated to THE CUSTOMER according to the EPICA invoicing Policy.
3.5 If The CUSTOMER comes to use a third-party ad server, The CUSTOMER will authorize the access to EPICA to the reports generated by said server, for purposes of performance generation and optimization of EPICA.
4.1 Customer or Customer´s licensors retain all ownership and intellectual property rights in and to Customer´s Data and digital data of The CUSTOMER as provided by EPICA. Subject to the terms of this Agreement, Customer grants EPICA a non-exclusive, worldwide and royalty-free right to use, copy, store, transmit, modify, create derivative works and disclose The CUSTOMER’s data only in the necessary measure to provide the service of the platform to The CUSTOMER. EPICA or our licensors retain all ownership and intellectual property rights in and to the Services, derivative works thereof, and anything developed or delivered by or on behalf of EPICA under this Agreement.
4.2 Customer may have access to Third Party data through use of the Services. Unless otherwise stated in Customer´s order, all ownership and intellectual property rights in and to Third Party Data and the use of such data is governed by separate third party terms between Customer and the third party. Customer have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer´s Data, and for obtaining all rights related to Customer´s Data required by EPICA to perform the Services.
4.3 Customer grant us the right to host, use, process, display and transmit Customer´s Data to provide the Services pursuant to and in accordance this Agreement and Customer´s order.
4.4 Customer may not, and may not cause or permit others to: (a) modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish or copy any part of the Services (including data structures or similar materials produced by programs); (b) access or use the Services to build or support, directly or indirectly, products or services competitive to EPICA; (c) perform or disclose any benchmarking or availability testing of the Services; (d) license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement or Customer´s order. (e) Publicly disseminate information about the performance of the Service.
5.1 By virtue of this Agreement, the parties may disclose information that is confidential (“Confidential Information”). Confidential Information shall be limited to the terms and pricing under this Agreement, Customer´s Data residing in the Services, and all information clearly identified as confidential at the time of disclosure.
5.2 A party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
5.3 Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of three years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, EPICA will protect the confidentiality of Customer´s Data residing in the Services for as long as such information resides in the Services. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law. EPICA will protect the confidentiality of Customer´s Data residing in the Services in accordance with the EPICA security practices. Likewise, the processing of your Personal Data will be done in accordance with the terms of Clause below. No provision shall prevent the parties from disclosing the terms or fees under this Agreement or the orders made under this Agreement in any legal action arising under or as a consequence of this Agreement or disclosing the Confidential Information to any governmental entity when so the law requires it.
6.2 Customer may configure The CUSTOMER Data elements to be collected from Sources and shared with different Destinations. In some instances, enabling a third-party Source involves implementing the third-party provider’s own code on Customer Properties.
6.3 The CUSTOMER is solely responsible for the accuracy, data and legality of all Customer Data and agrees to comply with all applicable Laws in the use of the Service. Customer agrees to provide any notices and obtain any consent related to Customer´s use of, and our provision of, the Services. The CUSTOMER declares and guarantees to EPICA that The CUSTOMER has all the rights, consents and permissions necessary to collect, share and use The CUSTOMER Data contemplated in this agreement (including the granting of rights in Section 4.1 and 1.1.), without violation or infringement of (i) any third party intellectual property, publicity, privacy or other rights, (ii) laws, or (iii) terms of service, privacy policies or other agreement governing the Properties of The CUSTOMER or the accounts of The CUSTOMER with third-party sources or destinations.
6.4 EPICA and its affiliates may perform certain aspects of the Services (e.g., administration, maintenance, support, disaster recovery, data processing, etc.) from locations and/or through use of subcontractors (if applicable). If the User authorizes EPICA to enable the use of the Service in conjunction with any Source or Destination, the User also authorizes EPICA to access the User’s integration accounts for the purposes described in the order of service. EPICA may also disclose (subject to prior authorization from the User) that the User is a EPICA User and data from the technical service related to third-party providers used by the User in conjunction with the Service.
6.5 Customer is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Customer´s Data, including any viruses, Trojan horses, worms or other harmful programming routines contained in Customer´s Data, or from Customer´s use of the Services in a manner that is inconsistent with the terms of this Agreement. Customer may disclose or transfer, or instruct us to disclose or transfer, Customer´s Data to a third party, and upon such disclosure or transfer we are no longer responsible for the security or confidentiality of such data and applications outside of EPICA.
6.6 Unless otherwise specified in Customer´s order (including in the Service Specifications), Customer may not provide us access to health, payment card or similarly sensitive personal information that imposes specific data security obligations on the processing of such data greater than those specified in the Service Order. In other words, Customer specifically agrees not to use the Service to collect, store, and process or transmit any Sensitive Personal Information. Customer acknowledges that EPICA is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Service is neither HIPAA nor PCI DSS compliant. EPICA shall have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
7.1 Each party represents that it has validly entered into this Agreement and that it has the power and authority to do so. EPICA warrants that during the Services Period, it will perform the Services using commercially reasonable care and skill in all material respects as described in the Service Specifications. If the Services provided to Customer were not performed as warranted, Customer must promptly provide EPICA with a written notice that describes the deficiency in the Services (including, as applicable, the service request number notifying us of the deficiency in the Services).
7.2 EPICA DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT EPICA WILL CORRECT ALL SERVICES ERRORS, OR THAT THE SERVICES WILL MEET CUSTOMER´S REQUIREMENTS OR EXPECTATIONS. EPICA IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER´S DATA OR THIRD PARTY DATA OR SERVICES PROVIDED BY THIRD PARTIES.
7.3 FOR ANY BREACH OF THE SERVICES WARRANTY, CUSTOMER´S EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY SHALL BE THE CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF EPICA CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, CUSTOMER MAY END THE DEFICIENT SERVICES AND EPICA WILL REFUND TO CUSTOMER THE FEES FOR THE TERMINATED SERVICES THAT CUSTOMER PRE-PAID TO US FOR THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.
7.4 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR SOFTWARE, HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
8.1 IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS (EXCLUDING FEES UNDER THIS AGREEMENT), SALES, DATA, DATA USE GOODWILL OR REPUTATION.
8.2 IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EPICA AND OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID FOR THE SERVICES UNDER THE ORDER GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER SUCH ORDER.
8.3 Excluded Claims. “Excluded Claims” means (a) any claim arising from Customer’s breach of Section 4 (Use Restrictions); or (b) any claim arising under Section 6 (PROTECTION OF CUSTOMER´S DATA).
9.1 This Agreement is valid for the order, which this Agreement accompanies.
9.2 Services provided under this Agreement shall be provided for the Services Period defined in Customer´s order.
9.3 The Services will be provided for the Service Period defined in Your Service Order. Any request for cancellation of the services included in the order may be made at any time after a month since the implementation day stated in numeral 3.4 of this Agreement.
9.4 Services shall be provided for the Services Period defined in the order. If stated in the order of services, the Services Period of certain Services will automatically be extended for an additional Services Period of the same duration unless (i) You provide EPICA with written notice no later than thirty (30) days prior to the end of the applicable Services Period of Your intention not to renew such Services, or (ii) EPICA provides You with written notice no later than thirty (30) days prior to the end of the applicable Services Period of its intention not to renew such Services.
9.5 EPICA may suspend Customer´s or Customer´s Users’ access to, or use of, the Services if we believe that (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any data, data, or applications in the Services; (b) Customer or Customer´s Users are accessing or using the Services to commit an illegal act; or (c) there is a violation of the Acceptable Use Policy. When reasonably practicable and lawfully permitted, EPICA will provide Customer with advance notice of any such suspension. EPICA will use reasonable efforts to re-establish the Services promptly after we determine that the issue causing the suspension has been resolved. During any suspension period, we will make Customer´s Data (as it existed on the suspension date) available to Customer. Any suspension under this paragraph shall not excuse Customer from Customer´s obligation to make payments under this Agreement.
9.6 If either party breaches a material term of this Agreement or the order and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the order under which the breach occurred. If EPICA terminates the order as specified in the preceding sentence, Customer must pay within 30 days all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Services under such order plus related taxes and expenses. Except for nonpayment of fees, the non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. Customer agrees that if Customer is in default under this Agreement, Customer may not use those Services ordered.
9.7 For a period of no less than 60 days after the end of the Services Period of an order, we will make Customer´s Data (as it existed at the end of the Services Period) available for retrieval by Customer. At the end of such 60 day period, and except as may be required by law, EPICA will delete or otherwise render inaccessible any of Customer´s Data that remains in the Services.
9.8 Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, indemnification, payment and others, which by their nature are intended to survive.
10.1 Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services and affected orders upon written notice. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer´s obligation to pay for the Services.
11.1 If a third party makes a claim against either Customer or EPICA (“Recipient” which may refer to Customer or EPICA depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, hardware, or material (collectively, “Material”) furnished by Customer to be used in EPICA ´s platform by the Recipient infringes the third party’s intellectual property rights, The CUSTOMER, at The CUSTOMER’s sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider.
11.2 If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, The CUSTOMER may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects EPICA ability to meet obligations under the relevant order, then EPICA may, upon 30 days prior written notice, terminate the order.
11.3. If a third party makes a claim either against THE CUSTOMER, as to any information, specification, instruction, software, service, hardware, or material, data or data use violation by The CUSTOMER, especially in relation to the clauses 4.1, 1.1. (Collectively, the “Material”) provided by EPICA for the provision of the services of The CUSTOMER, and this infringes the intellectual property rights of said third party, then EPICA will defend The CUSTOMER against the claim and indemnify The CUSTOMER for the damages, responsibilities, costs and expenses that the judicial authority grants in favor of the third party as a result of the claim, or of the conciliation agreement agreed by the parties, provided that THE CUSTOMER: a. notify EPICA immediately and in writing, within a maximum period of 30 days after The CUSTOMER receives notification of the claim (or earlier if required by applicable law); b. grant EPICA the exclusive control of the defense and of the negotiations related to the eventual conciliation; and c. grant EPICA the information, faculties and assistance it requires to defend the claim or reconcile it.
11.4 EPICA shall not indemnify The CUSTOMER for (a) to the extent that the claim for violation of intellectual property rights is based on information, designs, specifications, instructions, software, services, data, hardware or materials not provided by EPICA; (b) claims for violation of rights are based on Third Party Data or other external source to which The CUSTOMER has access within the Services of the platform and which have not been provided by EPICA; (c) violation of rights generated by actions against third parties if the Services that The CUSTOMER has received and used in accordance with the terms of this Agreement would not otherwise infringe the intellectual property rights of third parties; (d) for claims based on the violation of intellectual property rights that are known to The CUSTOMER at the time when the rights to the Services are obtained.
Notwithstanding anything to the contrary herein, Customer agrees that EPICA may obtain and aggregate technical and other data about Customer’s use of the Service that is non-personally identifiable with respect to Customer (“Aggregated Anonymous Data“), and EPICA may use the Aggregated Anonymous Data to analyze, improve, support and operate the Service and for distribution in general benchmarking data and industry reports. For clarity, this Section 12 does not give EPICA the right to identify Customer as the source of any Aggregated Anonymous Data.
The substantive and procedural laws of New York, United States govern this Agreement and Customer and EPICA agree to submit to the exclusive jurisdiction of, and venue in, the courts in New York City in any dispute arising out of or relating to this Agreement, without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in New York, New York and both parties hereby submit to the personal jurisdiction of such courts.
14.1 Any notice required under this Agreement shall be provided to the other party in writing. If Customer have a legal dispute with us or if Customer wish to provide a notice under the Indemnification Section of this Agreement, or if Customer become subject to insolvency or other similar legal proceedings, Customer will promptly send written notice to: EPICA INC, 78 SW 7th Street, Attention: Legal Department.
14.2 We may give notices applicable to our Services Customers by means of a general notice on the EPICA portal for the Services, and notices specific to Customer by electronic mail to Customer´s e-mail address on record in our account information or by written communication sent by first class mail or pre-paid post to Customer´s address on record in our account information.
Customer may not assign this Agreement or give or transfer the Services, or any interest in the Services, to another individual or entity.
16.1 EPICA is an independent contractor, and each party agrees that no partnership, joint venture, or agency relationship exists between the parties.
16.2 EPICA business partners and other third parties, including any third parties with which the Services have integrations or that are retained by Customer to provide consulting services, implementation services or applications that interact with the Services, are independent of EPICA and are not EPICA ’s agents.
16.3 EPICA is not liable for, bound by, or responsible for any problems with the Services or Customer´s Data arising due to any acts of any such business partner or third party, unless the business partner or third party is providing Services as our subcontractor on an engagement ordered under this Agreement and, if so, then only to the same extent as we would be responsible for our resources under this Agreement.
16.4 If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with another term consistent with the purpose and intent of this Agreement.
16.5 Except for actions for nonpayment or breach of EPICA ’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued. Prior to entering into an order governed by this Agreement, Customer is solely responsible for determining whether the Services meet Customer´s technical, business or regulatory requirements. EPICA will cooperate with Customer´s efforts to determine whether use of the standard Services is consistent with those requirements. Additional fees may apply to any additional work performed by EPICA or changes to the Services. Customer remains solely responsible for Customer´s regulatory compliance in connection with Customer´s use of the Services.
16.6 The CUSTOMER must obtain, at his own cost and charge, the rights and consents of third parties that are necessary for his Data and the Data of Third Parties, necessary for EPICA to provide the Services under this Agreement.
16.7 The CUSTOMER agrees to provide EPICA with all information, access and full cooperation that are reasonably necessary for EPICA to provide the Services and THE CUSTOMER must carry out the acts that, as indicated in the order, are found under its responsibility.
16.8 Before formalizing an order governed by this Agreement, THE CUSTOMER shall have the sole responsibility to determine whether the Services comply with its technical, business or regulatory requirements. EPICA will cooperate with your efforts to determine if the use of the Standard Services meets these requirements. THE CUSTOMER will continue to be exclusively responsible for compliance with the regulations in relation to the use that THE CUSTOMER makes of the Services.
17.1 This Agreement is the complete and exclusive declaration of mutual understanding of the parties and supersedes and cancels all agreements and prior written and oral communications related to the subject matter of this Agreement. The CUSTOMER acknowledges that the Service is a subscription-based product, and that in order to provide a better Customer experience, EPICA can make changes to the Service, and EPICA will update the corresponding Documentation accordingly.
17.2 It is expressly agreed that the terms of this Agreement and any order of EPICA will replace the terms included in any purchase order. In case of discrepancies between the terms of an order and the Agreement, the order will prevail. This Agreement does not create links with beneficiary third parties.