This Agreement is by and between Spaceflux Ltd. incorporated and registered in England and Wales with company number 14023744 whose registered office is at 9a Northampton Street, London N1 2HY, United Kingdom (“Spaceflux“), and the customer being granted access and use of the Spaceflux Platform or other Spaceflux services, as identified in an email, covering letter, order form or other document, as applicable (hereinafter after “Customer“) (together this “Agreement”). Spaceflux and Customer may also be referred to herein collectively as the “Parties” or individually as a “Party.”
WHEREAS, Customer desires to access and use the Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Access and Use
Provision of Access. Subject to the terms and conditions of this Agreement, Spaceflux hereby grants Customer a non-exclusive, non-transferable right during the time period agreed in any applicable email, covering letter, order form or other document, (the “Term“) to: (a) access and use the Spaceflux software-as-a-service platform for the provision of Tracking Data Messages (“TDMs”) or other services (the “Services“) by up to a maximum of three (3) employees of Customer that Customer permits to access and use the Services and/or Documentation, or such other number agreed in writing (“Authorised Users“); and (b) use Spaceflux’s documentation relating to the Services provided by Spaceflux to Customer either electronically or in hard copy form relating to the Services (the “Documentation“).
Use Restrictions. Customer shall not at any time, directly or indirectly, and shall not permit any Authorised Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) publicly benchmark or disclose the performance of the Services or data derived from the Services against other providers of similar services (v) remove any proprietary notices from the Services or Documentation; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
Reservation of Rights. Spaceflux reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to the Services, the Documentation, or any and all intellectual property provided to Customer or any Authorised User in connection with the foregoing (“Spaceflux IP”).
Customer Responsibilities. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the foregoing, Customer is responsible for all acts and omissions of Authorised Users, and any act or omission by an Authorised User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorised Users aware of this Agreement’s provisions as applicable to such Authorised User’s use of the software or Services, and shall cause Authorised Users to comply with such provisions.
Spaceflux has no obligation under this Agreement to provide support, maintenance, upgrades, modifications, or new releases of the Services or Documentation to Customer.
Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, Services, data derived from the Services, the performance or capabilities of its Services, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential”. For the avoidance of doubt, confidential information includes the performance and capabilities of the Spaceflux platform, including amongst other things, its tasking ability, observation priority, network queuing system, detection rate and its data delivery rate to the Customer (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of this Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date Confidential Information was first received (the “Effective Date”) and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Intellectual Property Ownership and Feedback
Spaceflux IP. Customer acknowledges that, as between Customer and Spaceflux, Spaceflux owns all right, title, and interest, including all intellectual property rights, in and to the Spaceflux IP.
Customer Data. Spaceflux acknowledges that, as between Spaceflux and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorised User through the Services (“Customer Data“). Customer hereby grants to Spaceflux a non-exclusive, royalty-free, worldwide license to reproduce, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Spaceflux to provide or improve the Services to its customers.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Spaceflux may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services that is used by Spaceflux in an aggregate and anonymised manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics“).
Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Spaceflux by mail, email, telephone, or otherwise, suggesting or recommending changes to the Spaceflux services or Spaceflux IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), Spaceflux is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Spaceflux on Customer’s behalf, and on behalf of its employees, contractors, and/or agents, all right, title, and interest in, and Spaceflux is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Spaceflux is not required to use any Feedback.
Disclaimer of Warranties
THE SPACEFLUX IP IS PROVIDED “AS IS” AND SPACEFLUX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SPACEFLUX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SPACEFLUX MAKES NO WARRANTY OF ANY KIND THAT THE SPACEFLUX IP, SPACEFLUX SERVICES OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification
Customer shall indemnify, hold harmless, and, at Spaceflux’s option, defend Spaceflux from and against any losses, damages, liabilities, or costs (including attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim“) alleging that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorised User’s (i) negligence or willful misconduct; (ii) use of the Services or Documentation in a manner not Authorised by this Agreement; or (iii) use of the Services or Documentation in combination with data, software, hardware, equipment, or technology not provided by Spaceflux or Authorised by Spaceflux in writing. In the event Spaceflux seeks indemnification or defense from Customer under this provision, Spaceflux shall promptly notify Customer in writing of the claim(s) brought against Spaceflux for which Spaceflux seeks indemnification or defense. Spaceflux reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of Spaceflux’s choice. Customer may not enter into any third-party agreement which would, in any manner whatsoever, affect Spaceflux’s rights, constitute an admission of fault by Spaceflux, or bind Spaceflux in any manner, without Spaceflux’s prior written consent.
Limitations of Liability
IN NO EVENT WILL SPACEFLUX BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, SAVINGS, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SPACEFLUX WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SPACEFLUX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE-HUNDRED PECENT (100%) OF THE REMUNERATION RECEIVED BY SPACEFLUX UNDER THIS AGREEMENT IN THE TWELVE MONTHS BEFORE THE FIRST CAUSE OF ACTION AROSE OR TEN THOUSAND POUNDS (10,000 GBP), WHICHEVER IS THE LESSER.
Term and Termination
The term of this Agreement begins on when the Customer first sign’s in or connects to access the Services and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until the expiration of the Term. Spaceflux may terminate this Agreement at any time, without cause, upon 7 days prior written notice. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services and Spaceflux IP and, without limiting Customer’s obligations under Section 5 (Indemnification), Customer shall delete, destroy, or return all copies of the Spaceflux IP and certify in writing to Spaceflux that the Spaceflux IP has been deleted or destroyed.
Miscellaneous
Entire Agreement. This Agreement, together with any applicable email, covering letter, order form or other document referring to these terms, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing. Notices to Spaceflux must be by email to the main Spaceflux contact of the Customer and [contracts@spaceflux.io). Notices to the Customer shall be to the email address of the Customer with whom Spaceflux has been dealing. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an Authorised representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the laws of England without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of England. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the Courts of England, and each Party irrevocably submits to the non-exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Assignment. Customer may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, in voluntarily, by operation of law or otherwise, without the prior written consent of Spaceflux. Any purported assignment, transfer, or delegation in violation of this Section is null and void.
Export Regulation. Customer shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the United Kingdom.
US Government Rights applicable to US Customers only. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
