Updated: January 2022
Ursa Space Systems, Inc. Terms & Conditions
This Ursa Data Subscription Agreement (this “Agreement”), effective as of the date first set forth on the signed order confirmation hereto (the “Effective Date”), is by and between Ursa Space Systems Inc., a Delaware corporation with a place of business at 130 E. Seneca Street, Suite 520, Ithaca, NY 14850 (“Ursa”), and the customer identified on the quotation to which this Agreement is attached (“Customer”) (Ursa and Customer each a “Party” and, together, the “Parties”).
WHEREAS, Ursa uses innovative processing techniques to transform satellite imagery into data for its customers; and WHEREAS, Customer desires to access and use data and other materials provided by Ursa, and Ursa desires to provide data and other materials to Customer, in each case on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the foregoing, the mutual covenants contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
“Affiliate” means, with respect to any entity, any other entity that now or in the future directly or indirectly controls, is controlled by, or is under common control with such entity or its successor entity, but only for so long as such control exists.
“Confidential Information” means all nonpublic information communicated to one Party by or on behalf of the other Party, whether before or after the Effective Date, which is marked as “Confidential” or which the receiving Party should reasonably understand to be confidential or proprietary given the nature of the information or the circumstances of its disclosure, including without limitation the terms and conditions of this Agreement, the Ursa Materials, the Portal and the Services. Notwithstanding the foregoing, “Confidential Information” shall not include information which is (a) already known by the receiving Party without an obligation of confidentiality; (b) publicly known or that becomes publicly known through no breach of this Agreement by the receiving Party or other breach of any obligation to the disclosing Party; (c) rightfully received from a third party without an obligation of confidentiality; or (d) independently developed without use of or reference to the disclosing Party’s Confidential Information.
“Customer” shall mean Customer and the Customer’s Affiliates.
“Portal” means Ursa’s online portal through which Customer may access, view and download Ursa Materials.
“Purchased Observations” means purchased observations and their associated imagery and image analysis.
“Quotation” means an Ursa product quotation which forms the basis of a purchase order executed by Customer pursuant to this Agreement (each, a “Purchase Order”).
“Ursa Materials” means all data, reports and other information and materials in any form whatsoever provided by Ursa to Customer under any and all Quotations but excludes Purchased Observations.
2. License to Ursa Materials; Services.
2.1 License to Ursa Materials. Ursa hereby grants to Customer a non-exclusive, non-transferable (except as expressly set forth in Section 10.9), non-sublicensable (except as expressly set forth in Section 2.2(a)), limited license to use the Ursa Materials solely at, and in support of, the customer sites set forth on the Quotation (the “Customer Sites”) for Customer’s internal business purposes only, and not for commercial use, sale or distribution. Ursa will make the Ursa Materials available to Customer in the format and in the manner specified in the applicable Quotation. Each Quotation and each Purchase Order is hereby incorporated into and made a part of this Agreement.
2.2 Third-Party Use. (a) Customer may grant sublicenses to the Ursa Materials solely to its Affiliates solely for their use at the Customer Sites for their respective internal business purposes. Customer and its Affiliates may not use the Ursa Materials at or in support of any other site not identified as a Customer Site in the Quotation or for any other purpose or, except as set forth in Section 2.2(b) below, permit any other person to access or use the Ursa Materials. (b) Contractors of Customer or any of its Affiliates may use the Ursa Materials provided that (i) such use is restricted to the Customer Sites, solely in direct support of Customer’s or such Affiliates’ respective internal business purposes at the Customer Sites, and solely for an engagement expressly authorized by Customer or the applicable Affiliate, (ii) such use is solely in accordance with the scope of use expressly permitted by Ursa under, and is subject to the restrictions and limitations applicable to Customer set forth in, this Agreement, including without limitation Section 2.3, (iii) any such contractor may not be a competitor of Ursa without Ursa’s prior written consent, and (iv) Customer ensures that, upon termination, expiration or conclusion of the engagement of any such contractor, all Ursa Materials are promptly returned to Customer or the applicable Affiliate or destroyed, and Customer shall, upon the request of Ursa, require that such contractor certify in writing to Ursa and shall itself certify in writing to Ursa that any Ursa Materials not returned to Customer or the applicable Affiliate have been destroyed. (c) Each Affiliate, and each contractor and employee of Customer or any of its Affiliates accessing or using any Ursa Materials (each a “User”), must honor the terms and conditions of this Agreement applicable to Customer. Any act or omission related to any Ursa Materials by any Affiliate, User, or other third party that gains access to any Ursa Materials directly or indirectly through Customer, any of its Affiliates, or any User will be deemed an act or omission by Customer, and Customer shall be responsible and liable hereunder for all such acts or omissions.
2.3 Restrictions. Customer shall not: (a) lease, rent, loan, license or sublicense (except as expressly set forth in Section 2.2(a)) to third parties, provide service bureau, time sharing, outsourcing, data processing or other services to third parties, commercialize, or otherwise permit the use of or access to any Ursa Materials by or for the benefit of any third party (except as expressly set forth in Section 2.2(b)); (b) assign, sell, pledge, charge, encumber, transfer or otherwise dispose of any Ursa Materials or the rights granted hereunder to any third party, whether voluntarily, by operation of law or otherwise; (c) remove or destroy, or permit others to remove or destroy, any proprietary markings of Ursa or other parties or legends that may appear on any components of any Ursa Materials; (d) use any Ursa Materials for any unlawful or fraudulent purpose or in any manner that competes with Ursa’s business; (e) copy (except to the extent necessary for Customer’s internal business use), translate, decompile, disassemble or reverse engineer any Ursa Materials; (f) modify, adapt, enhance, improve, revise or create derivative works based on any Ursa Materials except for Customer’s internal business purposes only and not for commercial use, sale or distribution, or (g) attempt to gain unauthorized access to the Ursa Materials, the Portal or Ursa’s systems or networks.
2.5 Warranty. Ursa has all necessary rights to furnish to Customer the Ursa Materials pursuant to the terms and conditions of this Agreement.
2.6 Services. Ursa shall provide any services set forth in the Quotations (the “Services”) in accordance therewith.
2.7 Export Restrictions; Compliance with Laws. Customer acknowledges that the Ursa Materials may be subject to United States export control laws. Accordingly, Customer shall not, directly or indirectly, export or permit the use of Ursa Materials: (a) in violation of United States export laws, (b) to or in the Crimean Federal District, Cuba, Iran, North Korea, Sudan, or Syria, or (c) to or in any country subject to a U.S. trade embargo or sanction or to or by any resident or national of those countries, or to or by any person, organization, or entity on any of the restricted parties lists maintained by any United States government agency. Customer shall indemnify, defend and hold harmless Ursa, its affiliates, and its and their respective employees, contractors, agents and suppliers from and against any and all losses, damages, and expenses, including attorneys’ fees and other costs of legal defense, arising out of or related to Customer’s breach of this Section 2.7. Customer shall comply with all applicable local, state, federal and foreign laws, rules and regulations in its performance under this Agreement, including without limitation its receipt, acquisition, possession and use of the Ursa Materials and Services.
3. Fees & Payment.
3.1 Fees. Customer shall pay Ursa the subscription fees for each Customer Site as set forth in the Quotations (collectively, the “Fees”).
3.2 Invoicing & Payment. Fees will be invoiced as set forth in the Quotation. Unless otherwise stated in the applicable Quotation, Fees shall be paid to Ursa within 30 days after the applicable invoice date. Customer is responsible for maintaining complete and accurate billing and contact information.
3.3 Overdue Payments. All amounts payable under this Agreement by Customer shall be paid in full without set-off, deduction or other withholding of any amount. Interest shall accrue on all payments received after the due date at the rate of the lesser of 1.5% per month and the highest rate allowable by applicable law. Failure by Customer to fully pay any Fees within 10 days after they are due shall be deemed a material breach of this Agreement, justifying suspension of Customer’s receipt of and/or access to and use of any and all Ursa Materials and Services. Any such suspension does not relieve Customer from paying past due Fees plus interest or of any other accrued obligations hereunder.
3.4 Taxes. The Fees do not include federal, state or local sales, use, property, excise, services or other taxes now or hereafter levied in connection with this Agreement or any Ursa Materials or Services. Customer shall remit such taxes directly to the applicable taxing authorities. Any taxes or amounts in lieu thereof paid or payable by Ursa in respect of any such taxes or the Fees invoiced in accordance with this Agreement (excluding only taxes on Ursa’s net income) shall be paid by Customer to Ursa.
4. Proprietary Rights.
Save for Purchased Observations which will be and remain the Customer’s exclusive property which Ursa may not resell or redistribute, all Ursa Materials are and shall remain the exclusive property of Ursa. Except for the rights expressly granted to Customer hereunder, Ursa shall retain all right, title and interest in, to and under the Ursa Materials. Ursa reserves all rights to the Ursa Materials not specifically granted herein. As between Ursa and Customer, Ursa shall own all right, title and interest in and to all materials created or resulting from any Services or used by Ursa in providing any Services.
5.1 Disclosure and Use. Neither Party will disclose the Confidential Information of the other Party to any person, other than the employees and contractors of the receiving Party who need to know such information to carry out the purposes of this Agreement. In addition, neither Party will use the Confidential Information of the other Party except for purposes of this Agreement. Each Party will be responsible for any prohibited disclosure or use of the other Party’s Confidential Information by the receiving Party’s employees and contractors. Each Party shall protect the other Party’s Confidential Information using not less than the same degree of care with which it treats its own Confidential Information of like nature, but at all times shall use at least reasonable care.
5.2 Exceptions to Obligations of Confidentiality. Information shall not be considered confidential to the extent, but only to the extent, that such information is: (i) already rightfully known to the recipient free of any restriction at the time it is obtained from the discloser; (ii) subsequently learned from an independent third party who to the receiving party’s knowledge is free of any restriction and without breach of this Agreement; (iii) is or becomes publicly available through no wrongful act of either party; or (iv) is independently developed by one party without reference to any confidential information of the other.
5.3 Disclosure Exceptions. A Party may disclose the other Party’s Confidential Information to the extent required to comply with a law or court order, provided that the receiving Party promptly, where it is legally allowed to do so, notifies the disclosing Party of the requirement to disclose such information, cooperates with the disclosing Party in any attempt by the disclosing Party to obtain an injunction preventing such disclosure or assurances that confidential treatment will be afforded any Confidential Information so disclosed, and discloses only that portion of Confidential Information that is necessary to comply with such law or court order.
5.4 Equitable Remedies. Each Party acknowledges that any threatened or actual breach of this Section 5 shall constitute immediate, irreparable harm to the disclosing Party for which equitable remedies may be awarded by a court of competent jurisdiction.
6. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 2.5, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE URSA MATERIALS AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW SAVE FOR URSA MATERIALS CONTAINING FRAUDULENT OR WILFUL MISREPRESENTED DATA, URSA EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL AND WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (A) ANY CONDITION, REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SATISFACTORY QUALITY, (B) WITH RESPECT TO THE ACCURACY, QUALITY, CONDITION, COMPLETENESS OR RELIABILITY OF THE URSA MATERIALS OR SERVICES, OR (C) ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN THE INDUSTRY. URSA DISCLAIMS ANY WARRANTY THAT THE URSA MATERIALS OR SERVICES WILL BE ERROR FREE OR THAT ANY ERRORS IN THE URSA MATERIALS OR SERVICES WILL BE CORRECTED. URSA MATERIALS ARE SUBJECT TO CHANGE, AND URSA ASSUMES NO LIABILITY WHATSOEVER WITH RESPECT TO SUCH CHANGES. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT (I) ANY ACTION TAKEN, EXPENDITURES MADE OR RESULTS PRODUCED BY THE CUSTOMER OR ANY OF ITS AFFILIATES OR USERS BASED ON ANY EXAMINATION, EVALUATION, INTERPRETATION OR USE OF THE URSA MATERIALS SHALL BE AT CUSTOMER’S OWN RISK, AND (II) URSA DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, OR THIRD-PARTY PRODUCTS OR SERVICES USED IN CONJUNCTION WITH THE URSA MATERIALS OR SERVICES.
Customer shall indemnify, defend and hold harmless Ursa, its affiliates, and their respective officers, directors, employees, agents, contractors and owners from and against any and all losses, liabilities, costs, damages and expenses, including attorneys’ fees and other costs of legal defense, which may be incurred by Ursa in connection with any claims, actions, or demands arising out of or related to: (a) a breach by Customer of any of its representations, warranties or covenants of this Agreement; (b) Customer’s or any of its Affiliates’ or Users’ receipt, acquisition, possession or use of any Ursa Materials or Services, or (c) Customer’s or any of its Affiliates’ or Users’ negligence, willful misconduct, or willful misrepresentation.
8.1 Limitation on Damages. SAVE FOR FRAUDULENT AND WILFUL MISREPRESENTATION BY URSA, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES, IN NO EVENT SHALL URSA, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, RELIANCE, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF URSA, ANY OF ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR REPRESENTATIVES HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
8.2 Limitation on Liability. THE AGGREGATE LIABILITY OF THE CUSTOMER, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES, URSA, ITS AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES FOR CLAIMS ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID TO URSA FOR THE URSA MATERIALS GIVING RISE TO THE LIABILITY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
8.3 Basis of Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN URSA AND CUSTOMER. CUSTOMER ACKNOWLEDGES THAT URSA WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE THE URSA MATERIALS OR SERVICES ABSENT SUCH LIMITATIONS.
9. Term and Termination.
9.1 Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and, with respect to any Quotation (and each Purchase Order resulting therefrom), shall continue for the term specified in such Quotation (the “Initial Term”). Thereafter, the Term for such Quotation will automatically renew for 1-year terms (each, a “Renewal Term”) unless either Party gives written notice to the other Party at least 30 days prior to the end of the then-current Initial Term or Renewal Term of the notifying Party’s election of non-renewal. This Agreement shall terminate upon the last date of termination of any Quotation (and resulting Purchase Orders) or as otherwise provided herein.
9.2 Termination for Cause. Either Party may terminate this Agreement (and all Quotations and related Purchase Orders hereunder) by giving written notice to the other Party (a) in the event the other Party is in material breach of this Agreement and fails to cure such breach within 30 days of receipt of written notice thereof from the non-breaching Party or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors that is not dismissed within 30 days after it is filed or commenced, as applicable.
9.3 Effect of Termination. Upon termination or expiration of this Agreement or any Quotation and related Purchase Orders, (a) Customer, its Affiliates and all Users must immediately cease using the relevant Ursa Materials and Services, (b) Customer must promptly destroy all copies of the relevant Ursa Materials and certify to Ursa in writing that such destruction has occurred, and (c) each Party shall return all Confidential Information of the other Party to such other Party. Termination or expiration of this Agreement shall not entitle Customer to any refund of any Fees save in the event such termination of this Agreement has been caused by a material breach of the Agreement by Ursa in which case the Customer will be entitled to a pro-rata refund of fees.
9.4 Surviving Provisions. Sections 1, 2.2(c), 2.7, 3, 4, 5, 6, 7, 8, 9.3, 9.4 and 10 shall survive any expiration or termination of this Agreement.
9.5 Suspension. Without prejudice to any of its other remedies under this Agreement or at law, Ursa may immediately suspend Customer’s or any of its Affiliates’ or Users’ receipt of and/or access to and use of any and all Ursa Materials and Services in the event of any breach by Customer or any of its Affiliates or Users of this Agreement, and such suspension shall not be deemed a violation of this Agreement.
10. General Provisions.
10.1 Relationship of the Parties. Ursa enters into this Agreement as an independent contractor. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10.2 No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
10.3 Publicity. Neither Party may issue press releases or otherwise make any public statement relating to this Agreement without the other Party’s prior written consent.
10.4 Force Majeure. A Party’s breach of this Agreement (other than a breach of its obligation to pay money) because of an act of God, act of government, civil commotion, earthquake, epidemic, explosion, fire, flood, labor strike, national emergency, quarantine, riot, terrorist attack, war or any other event outside of such Party’s reasonable control will not give rise to a claim for damages by the other Party. If the period of delay or non-performance continues for 1 (one) month, the Party not affected may terminate this Agreement by giving 15 (fifteen) days’ written notice to the affected Party.
10.5 Audit. Customer shall maintain records of payments made by Customer to Ursa hereunder and of Customer’s, its Affiliates’ and Users’ respective receipt, acquisition, possession and use of the Ursa Materials and Services (collectively, the “Records”). From time to time during the Term and for 18 months thereafter, upon reasonable prior notice to Customer, Ursa or its authorized designees may audit such Records. In the event any such audit reveals that Customer or any Affiliate or User is receiving, acquiring, possessing or using (or has at any time received, acquired, possessed or used) any Ursa Materials or Services contrary to the terms and conditions of this Agreement, Customer shall promptly pay to Ursa the proven costs and expenses incurred by Ursa in performing any such audit. Such assessment of additional costs and expenses will be without prejudice to any other remedies Ursa may have for breach of this Agreement, including without limitation termination under Section 9.2. Ursa’s decision not to perform an audit shall not relieve Customer of its obligations under this Agreement or waive any rights of Ursa of enforcement hereunder.
10.6 Notices. Notices hereunder must be in writing and given by in-hand delivery, by first class mail, postage prepaid, or by air courier to the mailing address set forth above or to such other address as either Party may designate in writing. Notices will be deemed to have been received 3 business days after the date of posting.
10.7 Waiver and Cumulative Remedies. The waiver by either Party of any right provided under this Agreement shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement. The remedies provided herein are in addition to, and not exclusive of, any other remedies a Party may have at law or in equity.
10.8 Severability. In the event that one or more terms of this Agreement becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall to the extent of such illegality or unenforceability be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
10.9 Assignment. Customer may not assign this Agreement (including without limitation pursuant to a change of control of Customer) in whole or in part without the prior written consent of Ursa. Ursa may not assign this Agreement to any affiliate or pursuant to a change of control (whether resulting from merger, consolidation, stock transfer, asset sale or otherwise) without the prior written consent of Customer. Any assignment in contravention of this provision shall be void. The Parties acknowledge and agree that the Fees for each Customer Site are based upon Customer’s anticipated scope of use at such Customer Site under the license granted hereunder as of the Effective Date. In the event of a change of control or restructuring of Customer or its Affiliates (whether pursuant to merger, acquisition, reorganization, sale or lease of substantially all of Customer’s assets, operation of law or otherwise) that may have the effect of broadening the scope of Customer’s actual use at such Customer Site under the license, Customer shall immediately notify Ursa in writing and the Parties shall promptly determine in good faith an increase in the applicable Fees commensurate with Customer’s broadened scope of use, which increase shall be reflected on invoices issued subsequent to such determination. This Agreement shall be binding upon the successors and permitted assigns of the Parties.
10.10 Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed exclusively by the internal laws of the State of New York, without regard to the conflicts of laws rules of any jurisdiction. This Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods, and the Parties expressly disclaim the application thereof. Each Party agrees that any judicial proceeding brought to enforce any provision of this Agreement or to recover damages for its breach shall be brought exclusively in the state and federal courts located in the State of New York, and the Parties waive any objections to jurisdiction or venue of any such court. EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.11 Entire Agreement; Modification; Conflict. This Agreement, including all Quotations (and Purchase Orders resulting therefrom), contains the complete and exclusive statement of the agreement between the Parties and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind, whether oral or written, with respect to the subject matter hereof. Each Party acknowledges that in entering into this Agreement, it has not relied on any previous or implied representation, warranty, agreement or statement not expressly set out in this Agreement and it will have no right or remedy arising out of any such representation, warranty, agreement or statement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. In the event of a conflict between any of the terms of this Agreement and the terms of a Quotation, the terms of the Quotation shall control except if such Quotation provides that any Ursa Materials will be owned by Customer, in which case the provision of this Agreement providing that all Ursa Materials will be exclusively owned by Ursa will control.