Agora Terms of Service

These Agora Terms of Service (this “Agreement”) are a legal agreement between the entity on behalf of which you are acting (the “Customer”) and Denodo Technologies Inc., a Delaware corporation, having its principal place of business at 525 University Ave, Suite 31, Palo Alto, CA 94301 USA (“Denodo”). This Agreement shall govern Customer’s access to and use of the Denodo cloud service (“Agora”) and any related technical support and other professional services Denodo may provide Customer in connection therewith.

Carefully read the terms and conditions of this Agreement prior to accessing or using Agora. By using Agora, accepting this Agreement or entering into an ordering document which incorporates this Agreement, Customer is agreeing to be legally bound by and is becoming party to this Agreement. The person agreeing to this Agreement on behalf of Customer represents to Denodo that he/she is authorized to agree to this Agreement on behalf of, and to bind, Customer. 

This Agreement serves as the framework under which Customer may use Agora, whether by subscribing to the post-pay, generally available version of Agora (“Pay-As-You-Go” or “PAYG”), or entering into Orders to pre-pay for the Agora service from Denodo or its authorized resellers.

1. Definitions
   1. “Affiliate” means, with respect to an entity, any company, corporation, partnership or other entity that, now or hereafter, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such entity, where “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such entity, whether through the ability to exercise voting power, by contract or otherwise, and in any event and without limiting the foregoing, any entity having the rights to more than 50% of the equity, ownership or voting rights for such entity shall be deemed to control such entity.
   2. “Cloud Service Provider” means the cloud service provider on whose platform Agora components are deployed. 
   3. “Customer Cloud Environment” means the Customer’s cloud environment which is provided by the Cloud Service Provider in the Customer cloud account.
   4. “Denodo Cloud Environment” means the Denodo’s cloud environment which is provided by the Cloud Service Provider in the Denodo cloud account.
   5. “Control Plane” means the Agora components that run in the Denodo Cloud Environment and are managed and monitored by Denodo as described in the Documentation.
   6. “Execution Plane” means the Agora components that run in the Customer Cloud Environment as described in the Documentation.
   7. “Customer Materials” means the Customer Data and Customer Output. 
   8. “Customer Data” means the data residing in Customer’s data sources or otherwise under Customer’s control and made available by Customer or its authorized users for processing within Agora or in connection with Maintenance and Support Services or Other Services.
   9. “Customer Output” means the results generated from Customer’s use of Agora.
   10. “Documentation” means the user instructions, manuals or other materials, and on-line help files regarding the use of Agora, that are generally provided by Denodo to its customers.
   11. “Denodo Credit Units” means a usage credit for Agora equal to the Fees paid by Customer.
   12. “Platform Fee” means the fee paid by Customer based on the number of cores determined by the sizing exercise. The platform fee only applies to pre-paid offers (it does not apply to Pay-As-You-Go).
   13. “Effective Date” means the date on which Customer accepts this Agreement.
   14. “Fees” shall have the meaning set forth in Section 4 below.
   15. “Subscription Term” means the Agora subscription period specified in the Order and each subsequent renewal period.
   16. “Order” means an order form entered into between Denodo and Customer (or an authorized reseller) or an online order placed by Customer (either directly or through the relevant cloud marketplace) for Agora or related Services.
   17. “Services” means the Maintenance and Support Services and Other Services.
   18. “Maintenance and Support Services” means the technical maintenance and support services provided by Denodo to Customer, as further described in Section 3.1 below and the Denodo Support Guide.
   19. “Other Services” means the consulting, training, or other professional services set forth in the Order, but excluding Maintenance and Support Services.
   20. “Denodo Support Guide” means Denodo’s then-current support policies, available at https://support.denodo.com/doc/denodo_support_guide.pdf.
   21. “System” means any application, operating systems, computing or storage device, or network.
   22. “Users” means those employees, contractors and/or agents of Customer who are entitled to access and use Agora on behalf of Customer. The Customer shall be responsible for any breach of this Agreement by any such Users.
   23. “Customer Account” means the account the Customer uses to manage its Agora subscription.
   24. “Intellectual Property Rights” means any worldwide patent, copyright, trademark, service mark, trade secret or other intellectual property or industrial property right (including applications), and any moral rights and goodwill related thereto.
   25. “Confidential Information” means any business or technical information disclosed by either party (and/or its Affiliates) to the other party while this Agreement is in effect, either directly or indirectly, whether in writing, orally or by inspection of tangible objects, which is designated as "Confidential," "Proprietary" or some similar designation or which would be reasonably understood to be confidential in nature. Without limiting the foregoing, all non-public elements or non-public information regarding features, functionality and performance of Agora, as well as the terms of this Agreement and any Order, are considered to be Denodo’s Confidential Information. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no wrongful action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
2. Use of Agora
   1. Right to Use. Subject to the terms and conditions of this Agreement, including, without limitation, the restrictions in Section 2.6, Denodo grants to the Customer, during the applicable Subscription Term, a nonexclusive, nonsublicenseable and nontransferable right to permit its Users to access and use Agora for Customer’s internal information processing services and computing needs.
   2. Account; Users; Contractors and Affiliates. In order to access and use Agora, Customer must create an account and provide such information as may be requested in the registration process. Credentials for each individual User may be required. The accuracy and completeness of registration information and maintaining the confidentiality of its and its Users account access credentials shall be the responsibility of the Customer. Subject to Denodo’s approval, Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement and any use of Agora by such Permitted Users is for the sole benefit of Customer. 
   3. Deployment. Customer acknowledges that Agora is implemented in a manner that divides the platform between two main components – the Control Plane, which resides in the Denodo Cloud Environment, and the Execution Plane, which resides in the Customer Cloud Environment, and that each party must undertake certain technical and organizational measures to protect the security of Agora and Customer Materials. Without limiting the foregoing, Customer acknowledges and agrees that (a) in order to utilize Agora, Customer must have an account with the Cloud Service Provider; (b) Denodo does not host the Customer Cloud Environment in which the Execution Plane is deployed nor the Systems in which Customer Data may be stored; (c) while Customer Output may occasionally be present within the Denodo Cloud Environment, Agora is not designed to archive or permanently retain Customer Data, but merely to provide an environment to facilitate Customer’s queries and other data management services in relation to Customer Data within the Customer Cloud Environment; and (d) Agora does not provide backup services or disaster recovery to enable recovery of Customer Data. Accordingly, and without limiting the foregoing, Denodo is not responsible for any loss, destruction, alteration, or corruption of Customer Materials.
   4. Customer and Denodo Responsibilities.
      1. Customer Responsibilities. Customer acknowledges and agrees that Customer is responsible for: (i) protecting the security of all Customer credentials used to access Agora; (ii) securing the Customer Cloud Environment and any Customer-controlled System (with such steps to include, without limitation, industry standard steps to preclude unauthorized access); (iii) backing up and securing the metadata created by the Customer in Agora; (iii) backing up and securing Customer Data under Customer’s control within the Customer Cloud Environment or other Customer-controlled Systems and (iv) managing and paying the charges associated with Customer’s usage of the Customer Cloud Environment (e.g., compute, storage and network fees); and Customer expressly assumes the risks associated with the foregoing responsibilities set forth in this paragraph.
      2. Denodo Responsibilities. Denodo acknowledges and agrees that, except to the extent caused by the action or intentional or negligent inaction of Customer or its Users, including, without limitation, any customizations or configurations of Agora by Customer or anything specified to be Customer’s responsibility above, Denodo is responsible for: (i) the operation of the Denodo Cloud Environment including the Denodo software that operates the computing resources in the Execution Plane; and (ii) implementing reasonable technical and organizational measures designed in accordance with SOC2 Type II or equivalent/greater standard to protect the security of the foregoing.
      3. Agora Shared Responsibility Model. For additional information regarding the responsibilities of each of Denodo, the Cloud Service Provider and Customer, please see also the Agora Shared Responsibility Model, available at https://www.denodo.com/en/agora-shared-responsibility-model.
   5. Beta Offerings. Denodo may, in its sole discretion, make available pre-release versions, features, or functions identified as beta, preview, early access, or words or phrases with similar meanings, for the purpose of evaluating performance, identifying defects and obtaining feedback. Beta Offerings may be subject to additional terms and may not be maintained and/or become generally available. Customer may access and use Beta Offerings solely for internal evaluation purposes. Non-public information about a Beta Offering is deemed to be the Confidential Information of Denodo. Beta Versions are provided on an “as is” basis with no warranty. 
   6. Restrictions. Customer shall not itself, or through any parent, subsidiary, Affiliate, agent or other third party: (a) sell, lease, license or sublicense Agora; (b) decompile, disassemble, or reverse engineer Agora or any Denodo software components included in Agora, in whole or in part (except to the extent that such restriction is not permitted under applicable law); (c) allow access to Agora by any person or entity that is not a User; (d) write or develop any derivative software or any other software program based upon Agora or any Denodo software components included in Agora (except to the extent that such restriction is not permitted under applicable law); (e) use Agora on a “service bureau” basis; (f) provide to any third party the results of any benchmark tests or other evaluation of Agora without Denodo’s prior written consent; (g) use Agora or any Denodo software components included in Agora for any illegal or fraudulent purposes; or (h) attempt to circumvent, disable or otherwise interfere with security-related or access-related features of Agora or any Denodo software components included in Agora.
   7. Compliance. Customer will be solely responsible for ensuring that its use of Agora, including, without limitation, Customer Materials which it processes through Agora, complies with all applicable laws (including, all privacy laws), rules, and regulations. Further, Customer is solely responsible for all uses of Agora resulting from access provided to Customer and its Users, directly or indirectly, whether the access or use is permitted by, or contrary to, an Order. Denodo may temporarily suspend Customer and any Users’ access to Agora if Denodo reasonably believes that Customer is using Agora in violation of any obligations or restrictions in this Section 2 and Customer will not be entitled to any refund of any fees due to such suspension.
   8. Customer Systems. Customer will be responsible for obtaining and maintaining all Systems and any other equipment and ancillary services needed to connect to, access or otherwise use Agora. Denodo will not be liable for any Systems and/or ancillary services needed to connect to, access or otherwise use Agora.
   9. Changes to Agora. Denodo may, from time to time, at its sole discretion, update and/or change any part of Agora, including its features, functions, layout, design, enhancements, corrections, bug fixes, improvements, modifications, extensions and other changes (“Updates”). Updates implemented into Agora will be deemed part of Agora. Denodo shall have the choice to use such new versions of Agora in its deployment (i.e. the Control Plane which runs in the Denodo Cloud Environment). Customer shall have the choice to use such new versions of Agora in its deployment (i.e. the Execution Plane which runs in the Customer Cloud Environment) or remain on a prior version (subject to applicable end-of-support timelines, as set forth in the Denodo Support Guide). Denodo shall notify Customer of any such newly available versions. 
   10. Denodo-Supported External Services. Agora may operate with or using other services or application programming interfaces (APIs) operated or provided by third-party, external providers. Customer acknowledges and agrees that Denodo will have no liability for any software or service powered by or supported by Agora that is provided under contract with a third party, external provider (“External Service”). Denodo does not make any representations or warranties with respect to any such External Service or any external providers. Customer’s relationship with such an external party, including any exchange of data with such a party, is governed by the agreement between Customer and the external party only. For the avoidance of doubt, this Agreement does not provide for or govern the acquisition or use of any External Service.
   11. Right to cancel PAYG / Free Trial subscriptions. Denodo shall have the right to cut-off access to Agora and cancel a Customer’s PAYG / Free Trial subscriptions: (i) upon three (3) days notice, if the Customer has not registered any usage of Agora during the first seven (7) days of such PAYG subscription; and (ii) upon seven (7) days notice, if the Customer has not incurred any fees for Agora or has not registered any usage of Agora during the previous thirty (30) days. For purposes of this Section 2.11, notice shall mean electronic notifications via email.
3. Additional Services
   1. Maintenance and Support Services. During the Subscription Term, Denodo shall provide Maintenance and Support Services for Agora as specified in this Section 3.1 and in accordance with the Denodo Support Guide. Maintenance and Support means that Denodo will provide: (a) Updates and Upgrades, if any, and appropriate Documentation; and (b) telephone and email assistance with respect to Agora, including (i) clarification of functions and features of Agora; (ii) clarification of Documentation pertaining to Agora; (iii) guidance in the operation of Agora; and (iv) error verification, analysis and correction. Maintenance and Support shall not include services required as a result of: (A) use of Agora in a manner inconsistent with the Documentation; (B) modification, alternation, or addition, or attempted modification, alteration or addition to Agora undertaken by persons other than Denodo or Denodo’s authorized representatives; (C) use of Agora in connection with third-party software or technology. 
   2. Other Services. Denodo offers its customers Other Services for assistance in implementation, training, customization, and other services applicable to Customer’s use of Agora. To the extent set forth in an Order, Denodo shall provide the Other Services as described in such Order. 
   3. Customer Responsibilities. Customer acknowledges that successful and timely delivery of the Services requires Customer’s compliance with the terms of this Agreement, the Documentation, the Order, if applicable, and good faith cooperation with Denodo including: (i) making available to Denodo Customer’s personnel and relevant information as may be reasonable requested by Denodo in connection with a service request; (ii) reasonably training such individuals who will use Agora in the use and application of Agora; (iii) carrying out, within a reasonable time, such steps for the rectification of errors and malfunctions which Denodo may provide.
4. Fees
   1. Payment Terms. In consideration of the right to use Agora and any Services provided hereunder, Customer shall pay Denodo the following fees (collectively, the “Fees”): (i) for pre-paid Denodo Credits Units, including the Platform Fee, the amounts specified in the applicable Order; (ii) for Pay-As-You-Go, the fees set forth in the Agora Pricing Exhibit at https://www.denodo.com/en/agora-pricing; and (iii) for Other Services, the amounts specified in the applicable Order. All Fees are nonrefundable, except as otherwise provided in this Agreement or the applicable Order.Unless otherwise set forth in an Order, (a) all Fees owed to Denodo will be paid in US Dollars; (b) Fees for pre-paid Denodo Credits, including the Platform Fee, will be invoiced in full upon execution of the applicable Order, and will be due and payable in full no later than 30 days after date of Denodo’s invoice; (c) all Pay-As-You-Go consumption will be billed in arrears as determined by Denodo or the Cloud Service Provider as set forth in the Agora Pricing Exhibit at https://www.denodo.com/en/agora-pricing; and (d) any Fees due for Other Services will be invoiced monthly in advance and will be due and payable in full no later than 30 days after date of Denodo’s invoice.In the event Customer disputes any of the Fees, in good faith, it shall contact Denodo no more than 30 days after receipt of the invoice in which it believes the error occurred. In the event that Denodo determines that Customer was billed incorrectly, an adjustment or credit shall be issued.
   2. Denodo Credit Units Consumption. Consumption of the Denodo Credit Units will be measured in units of processing capability per hour (or the most granular counting unit available as set forth in the Agora Pricing Exhibit at https://www.denodo.com/en/agora-pricing). The total Denodo Credit Units consumption by Customer is the sum of the Denodo Credit Units consumption of all servers as set forth in the Agora Pricing Exhibit at https://www.denodo.com/en/agora-pricing).
   3. Taxes. All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Denodo for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement, or the transactions contemplated by this Agreement (other than taxes on the net income of Denodo).
   4. Fee Updates. Denodo reserves the right to change the Fees or applicable charges and to institute new charges and Fees, in accordance with the applicable marketplace rules of the Cloud Service Provider. Fee updates shall not apply to previously purchased Denodo Credit Units.
   5. Non-Payment and Suspension. If Denodo does not receive timely payment from Customer, without limiting Denodo’s other rights and remedies, Denodo may suspend or terminate Customer’s access to Agora and/or the Other Services until Customer has paid, provided that Denodo shall first provide Customer with at least 10 days written notice and an opportunity to pay Denodo the applicable overdue Fees. Any Fees not paid by the due date will be subject to interest of 1.5% per month, which interest will be immediately due and payable. Customer will continue to be charged for Fees during any period of suspension due to Customer’s delinquency.
   6. Right to audit. Denodo reserves the right to audit the actual usage of Agora by the Customer. In the event the actual sustained usage exceeds the agreed platform size, Denodo shall have the right to adjust the platform fee accordingly and Customer shall be responsible for any additional fees associated with such excessive usage.
5. Representations and Warranties
   1. Denodo Warranties.
      1. Agora. Denodo represents and warrants that (i) Agora will perform in substantial accordance with the Documentation, and (ii) it will use commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via Agora. Denodo’s sole liability and Customer’s exclusive remedy for any breach of this warranty will be to use commercially reasonable efforts to remedy such breach in accordance with the Support Guide. If Denodo fails to substantially correct the deficiency within a reasonable period of time then Denodo will end the deficient services and refund to the Customer any prepaid and unused Fees for the canceled services, following which Denodo will have no further liability and Customer will have no other remedy in relation to the relevant defect.
      2. Other Services. Denodo represents and warrants to the Customer that the Other Services shall be provided with reasonable skill and care and by means of appropriately qualified and skilled personnel.
      3. Exclusions. Each of 5.1.1 and 5.1.2 shall apply only if: (i) Agora has been used at all times in accordance with the terms set out in any applicable Order, this Agreement, the Documentation, and any other instructions for use communicated by Denodo to the Customer; (ii) no modification, alteration or addition has been made to Agora by persons other than Denodo or Denodo’s authorized representatives, and (iii) the non-conformity is not caused by Customer’s Systems or third-parties’ Systems or services used in connection with Agora. 
      4. Disclaimer. Except as set forth above, Denodo makes no warranties, whether express, implied, or statutory regarding or relating to Agora, the Documentation, or any materials or Services furnished or provided to Customer under this Agreement. Denodo does not warrant that Customer’s use of Agora will be uninterrupted or error free, that all errors will be corrected or that it will meet the Customer’s requirements. DENODO HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO AGORA, DOCUMENTATION AND OTHER MATERIALS AND SERVICES PROVIDED HEREUNDER, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
   2. Customer Warranties. Customer represents and warrants that it has all rights in and to the Customer Materials and their use as authorized by Customer in this Agreement will not violate any applicable laws or any third-party intellectual property rights.
6. Proprietary Rights
   1. Agora. Access to Agora and the Services are provided without transfer of Intellectual Property Rights ownership. Customer acknowledges that Denodo will retain all Intellectual Property Rights in Agora and any Denodo software components included in Agora and the Documentation, including, in each case, to any underlying software, algorithms, inventions, modifications, enhancements, derivatives and corrections thereto. Denodo hereby reserves all rights in and to Agora and any Denodo software components included in Agora, Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein. Customer shall not efface or remove any and all titles, trademark symbols, copyright symbols and legends, and other proprietary markings included in Agora or any Denodo software components included in Agora and/or the Documentation and shall copy any such markings on any copies thereof.
   2. Customer Data. As between Denodo and Customer, Customer owns all right, title and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer grants to Denodo a non-exclusive, royalty-free, worldwide license, during the Term, to access, reproduce, store and process Customer Data in any manner reasonably required to operate Agora and/or to perform the Maintenance and Support Services or Other Services for Customer. 
   3. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Denodo with respect to Agora or the Services. Denodo is free to use Feedback and Customer hereby grants to Denodo a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted and fully paid-up license to use, sell, reproduce, modify, distribute, disclose and otherwise commercially exploit the Feedback for any purpose. Denodo is not required to use any Feedback.
   4. Usage Data. Customer agrees that Denodo will have the right to collect and analyze usage, telemetry and other data relating to the provision, use and performance of various aspects of Agora (including, without limitation, information concerning queries entered by Authorized Users; but excluding, for the avoidance of doubt Customer Materials) (“Usage Data”), and that Denodo will be free (during and after the Term hereof) to use Usage Data to improve and enhance Agora and for other development, diagnostic and corrective purposes in connection with Agora and other Denodo offerings. Denodo will not share (other than with third parties providing services to Denodo who agree in writing to terms at least as restrictive regarding the use of Usage Data as those set forth herein) or publicly make available any Usage Data that identifies Customer or any of its Authorized Users, nor use any Usage Data in a manner that derives its value from the unique aspects of Customer’s queries.
   5. No Implied Rights. No rights or licenses are granted by Denodo to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
   6. Open Source Components. Agora or any Denodo software components included in Agora may contain certain third-party open source software components which are provided to Customer pursuant to their open source licenses (as may be identified to Customer by Denodo in the Documentation or the applicable proprietary notices). Copyrights to the open source software are held by the copyright holders indicated in the Documentation or the applicable notices. Any fees charged by Denodo in connection with Agora do not apply to any open source components for which fees may not be charged under their applicable open source licenses. With respect to each Open Source Component, to the extent there are any conflicts between any terms of this Agreement and any terms of the respective open source license, which the open source license does not permit, such conflicting terms of this Agreement will not apply.
7. Confidentiality
   1. Non-Use and Non-Disclosure. Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees or contractors, except on a need-to-know basis and provided that such third-party and/or employees and contractors have signed a confidentiality agreement in content similar to the provisions hereof. Each party agrees that it shall take reasonable measures, at least as protective as it takes to protect its own most confidential information, to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Notwithstanding the foregoing, a receiving party may disclose such Confidential Information to the extent it is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
   2. Return of Confidential Information. Upon the termination of this Agreement, each party shall deliver to the other party or destroy, at the disclosing party’s discretion, all of such other party’s Confidential Information, and any copies thereof, that such party may have in its possession or control. Notwithstanding the foregoing, a receiving party’s backups of computer records maintained as part of the its reasonable IT policy shall not be required to be deleted provided that such records or copies shall be subject to the confidentiality obligations herein for as long as they are retained.
   3. Injunctive Relief. Money damages may not be a sufficient remedy for a breach of confidentiality. If either party breaches the confidentiality obligations, the non-breaching party may seek injunctive or other equitable relief without the necessity of posting a bond even if otherwise normally required. Such injunctive or equitable relief is in addition to all other rights and remedies available at law or in equity.
8. Privacy and Security
   1. Data Protection. To the extent applicable, the parties will comply with Denodo’s Data Processing Agreement (“DPA”) available at https://www.denodo.com/en/page/data-processing-agreement which is incorporated into this Agreement. 
   2. Security. Each party has obligations with respect to the security of Agora and Customer Materials. Denodo shall implement data security measures in compliance with industry standards and all applicable laws and such security measures shall protect the privacy, confidentiality, integrity and availability of all Customer Materials. The current technical and organizational security measures are described at https://www.denodo.com/en/denodo-security Denodo shall secure and protect Customer’s Confidential Information using at least the same degree of care as Denodo uses to secure and protect its own confidential and proprietary information but in no event any less than reasonable care. 
   3. Customer Account. Customer is responsible for using Agora in accordance with this Agreement, the Documentation and any Order, and taking its own steps to maintain appropriate security, protection and backup of Customer Materials. Customer will not disclose its user credentials to any unauthorized persons. Customer is responsible for all activities in the Customer Account, regardless of whether undertaken by Customer, Users or a third party. Denodo is not responsible for unauthorized access to the Customer Account unless caused by Denodo’s breach of this Agreement. Customer should immediately report to Denodo any suspected unauthorized activity in the Customer Account or if the account information has been lost or stolen.
9. Limitation of Liability
   1. Limitation on Indirect Liability. Subject to Section 9.3 (Unlimited Liabilities), in no event will either party be liable for any loss of profits, loss of use, business interruption, loss of data, cost of cover, loss arising from inaccurate or unexpected results arising from the use of Agora, or indirect, special, incidental or consequential damages of any kind in connection with or arising out of or relating to this Agreement, whether alleged as a breach of contract or tortious conduct, including negligence, even if such party has been advised of the possibility of such damages.
   2. Limitation on Amount of Liability. Subject to Section 9.3 (Unlimited Liabilities), in no event shall either party’s liability under this Agreement for damages exceed the fees paid or payable by Customer for the Software and/or Services in the last twelve (12) months preceding the claim (“General Cap”). Additionally, subject to Section 9.3 (Unlimited Liabilities), and notwithstanding the foregoing, Denodo’s aggregate liability for any claim pursuant to Sections 7 (Confidentiality) and 8 (Privacy & Security) shall be limited to two (2) times the General Cap.
   3. Unlimited Liabilities. Nothing in this Agreement excludes or limits either party’s liability for:
      1. its fraud or fraudulent misrepresentation;
      2. its obligations under Section 10 (Indemnification);
      3. its infringement of the other party’s intellectual property rights;
      4. its payment obligations under this Agreement; or
      5. matters for which liability cannot be excluded or limited under applicable laws.
10. Indemnification
    1. Indemnification by Denodo. Denodo shall, at its expense, defend or settle any claim, action or allegation brought against Customer alleging that Agora or Customer’s use of Agora infringes any intellectual property rights of any third party (“IP Claim”) and shall pay any final judgments awarded or settlements agreed to by Denodo. The foregoing obligation will not apply to the extent the infringement arises from or as a result of (i) modifications to Agora made by any party other than Denodo or an authorized representative of Denodo, or (ii) any combination of Agora with other products, processes or materials where the alleged infringement would not have occurred in the absence of such combination. 
    2. Indemnification by Customer. Customer shall, at its expense, defend or settle any claim, action or allegation brought against Denodo, its affiliates, and its and their officers, directors and employees, based upon or resulting from use of Agora in violation of any applicable laws or this Agreement and/or violation of third party rights; or the submission, processing, display and/or use of any Customer Data, including, without limitation, any claim that any Customer Material infringes or misappropriates such third party’s Intellectual Property Rights. Customer shall pay any final judgments awarded or settlements agreed to by Customer.
    3. Process. The party seeking indemnification shall (i) provide the indemnifying party prompt written notice of any claim, action or allegation for which indemnification is sought, (ii) give the indemnifying party the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, provided, that, the indemnifying party may not, without the indemnified party’s consent, agree to any settlement that requires the indemnified party to admit any fault or pay any un-indemnified amount. The indemnified party shall give such assistance and information the indemnifying party may reasonably require to settle or oppose such claims, at the indemnifying party’s expense.
    4. Remedies. In the event that, during the Subscription Term, Agora is determined, in a final, non-appealable order, to be infringing, or if Denodo determines, in its sole discretion, that continued use of Agora, as is, is no longer possible, Denodo may, at its sole option and expense:
       1. procure for Customer the right to continue use of Agora; or
       2. modify or amend Agora or infringing part thereof, or replace Agora or the infringing part thereof with other services having substantially the same or better capabilities; or, if neither of the foregoing is commercially practicable, terminate Customer access to Agora and refund to the Customer any prepaid and unused Fees. Denodo and Customer will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.
11. Term and Termination
    1. Term. This Agreement will be effective as of the Effective Date and will remain in effect until Customer terminates its Agora account or until Denodo provides thirty (30) days’ advance written notice of termination (or in cases where the Order stipulates a fixed Subscription Term, until expiration of such term) (the “Term”).
    2. Termination by Customer. This Agreement or any Order may be terminated by Customer for cause if Denodo is in material breach of any term, condition, or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Customer gives Denodo written notice of such breach.
    3. Termination Events. Denodo may, by written notice to Customer, terminate this Agreement if any of the following events occur:
       1. Customer is in material breach of any term, condition, or provision of this Agreement, which breach, if capable of being cured, is not cured within thirty (30) days after Denodo gives Customer written notice of such breach; or
       2. Customer (i) terminates or suspends its business; (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver, or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes; or
       3. Denodo refunds Customer’s fees in accordance with Sections 5.1.1 or 10.4.
    4. Effect of Termination. Upon termination or expiration of this Agreement, Customer shall immediately cease to access and use Agora. If the Agreement is terminated due to Denodo’s material breach, Denodo will refund to Customer that portion of any prepaid and unused Fees.
    5. Survival. If any termination occurs, termination will become effective immediately or on the date set forth in the written notice of termination. The following sections will survive any termination or expiration of this Agreement: Sections 1 (Definitions), 4 (Fees), 6 (Proprietary Rights), 7 (Confidentiality) (for five (5) years following the effective date of such expiration or termination), 9 (Limitation of Liability), 10 (Indemnification), 11.4 (Effect of Termination), 11.5 (Survival) and 12 (Miscellaneous).
12. Miscellaneous
    1. Non-assignment/Binding Agreement. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Denodo, which consent will not be unreasonably withheld. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
    2. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address and electronic mail address set forth in an Order (or to such other address or e-mail address as a party may designate by notice from time to time). Either party may change its address for notice by providing notice to the other party in accordance with this Section 12.2 (Notices). Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
    3. Limitation on Claims. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
    4. Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions. Notwithstanding the foregoing, a party’s force majeure shall not excuse its obligation to pay outstanding undisputed invoices.
    5. Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
    6. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
    7. Integration and Entire Agreement.
       1. This Agreement (including any Order) contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes and extinguishes all previous communications, drafts, arrangements, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.
       2. In the event of a conflict between an Order and this Agreement, the terms of this Agreement will govern, except to the extent, if any, otherwise expressly set forth in the Order.
       3. This Agreement may not be amended, except in writing signed by both parties.
    8. Purchase Orders. No terms, provisions or conditions of any purchase order, invoice, acknowledgement or other business form that a party may use in connection with the acquisition or licensing of Agora will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the other party to object to such terms, provisions or conditions.
    9. Export. Agora, the Other Services and Documentation may be subject to import, export or re-export regulation of the United States and other countries. Customer may not import, export or re-export the materials provided under this Agreement to any country, jurisdiction or person: (a) to which the import, export, re-export or release is prohibited by applicable law, or (b) without first completing all required undertakings (including obtaining any necessary import or export license or other governmental approval).
    10. Publicity. Customer’s written consent, in its sole discretion, shall be required in the event that Denodo desires to use Customer’s name in any publicity materials indicating that Customer is a customer of Denodo.
    11. Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party. Notwithstanding the above, the parties acknowledge that all rights and benefits afforded to Denodo under this Agreement apply equally to its Affiliates and its licensors.
    12. U.S. Government End Users. Agora, the Other Services and/or Documentation delivered to U.S. Government end users are “commercial computer software” pursuant to the applicable Federal Acquisition Regulation and agency-specific supplemental regulations. As such, use, duplication, disclosure, modification, and adaptation of Agora, Other Services and/or Documentation shall be subject to the license terms and license restrictions set forth in this Agreement. No other rights are granted to the U.S. Government.
    13. Anti-Corruption Compliance. The parties represent and warrant that they will comply fully with the U.S. Foreign Corrupt Practices Act, UK Anti-Bribery Act and the applicable anti-corruption and/or anti-bribery laws and regulations of other jurisdictions.
    14. Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
    15. Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles.
    16. Dispute Resolution. All disputes, claims or controversies related to this Agreement (including any under a statute or regulation) "Disputes“ shall be submitted to binding arbitration (“Arbitration”), which shall take place via online conferencing, and shall be administered by, and pursuant to the rules of, the International Chamber of Commerce ("ICC") following the ICC’s “Expedited Procedure Provisions” in effect at the time of filing, or other arbitral body mutually agreeable to the parties and/or as necessary to facilitate online arbitration not requiring the parties to travel for the arbitration of the Disputes. However, either party may seek a temporary restraining order or other temporary or preliminary relief in a court of competent jurisdiction pending final arbitral resolution of a Dispute. Otherwise, neither party shall have the right to litigate the Dispute in court or have a jury trial, or to engage in pre-arbitration discovery except as provided in ICC rules in effect at the time of filing. The arbitrator's authority to resolve and make awards for Disputes is limited to Disputes between the parties to this Agreement alone. No Dispute arbitration award or decision shall be given preclusive effect as to issues or claims in any dispute with any person who is not a party to the arbitration. This section may be enforced in a court of competent jurisdiction. The parties will be responsible for paying their respective shares of any of the costs associated with the Arbitration. The number of arbitrators shall be one. The language to be used in the arbitral proceedings shall be English.
    17. Relationship between the Parties. Denodo is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.