Updated: July 2023
URSA SPACE SYSTEMS INC. TERMS & CONDITIONS
These Terms and Conditions, together with any related order form (“Order Form”) constitutes the “Agreement” between Ursa Space Systems Inc. and the customer identified in the Order Form (“Customer”). Ursa and Customer are each a “Party” and together the “Parties.”
1.1 Scope of Work. Ursa shall provide the products and/or services as described in the applicable Order Form (“Content”). Each Order Form is governed by these Terms and Conditions. In the event of a conflict between these Terms and Conditions and an Order Form, the Order Form shall control.
1.2 License: Ursa grants to Customer a limited non-exclusive, non-sub-licensable, non-transferrable, revocable license to use the Content solely for its internal business purposes. For purposes of clarity, this limited license does not include the right to use the Content to create a “Derivative Work,” which means any addition, improvement, update, modification, transformation, adaptation, or derivative work created using the Content.
Notwithstanding, third party contractors (“Contractors”) of Customer may use the Content provided that: (i) such use is solely in direct support of Customer’s internal business purposes; and (ii) such use is solely in accordance with the terms of this Agreement. Customer is responsible for ensuring that each of its employees, agents, and Contractors (collectively, “Users”) abides by the terms of the Agreement and Customer shall be liable for any breach by a User. Customer shall be liable for any breach of this Agreement committed by anyone using Customer’s usernames and passwords, regardless of whether Customer authorized said use.
Except to the extent expressly permitted in the Agreement, Customer shall not: (a) publicly disclose the Content; (b) disclose, transfer, lease, rent, loan, or sublicense the Content to third parties; (c) provide service bureau, time sharing, outsourcing, data processing, or other services to third parties with regard to the Content; (d) assign, pledge, encumber, or otherwise dispose of any Content or the rights granted hereunder to any third party, whether voluntarily, by operation of law, or otherwise; remove or destroy, or permit others to remove or destroy, any proprietary markings of Ursa or other parties or legends that may appear on the Content; (f) use the Content for any unlawful or fraudulent purpose; (g) translate, decompile, disassemble, or reverse engineer any Content; (h) attempt to gain unauthorized access to the Content or Ursa’s systems or networks; or (i) transmit to Ursa any phishing attempt, virus, disabling device, or other malware.
1.3 Warranties. Ursa represents and warranties that the Content will, upon delivery, substantially conform to the specifications in the applicable Order Form.
1.4 Compliance with Laws. Each Party shall comply with all applicable laws, rules, and regulations in its performance under this Agreement.
2. Fees & Payment.
2.1 Fees. Customer shall pay Ursa the fees set forth in the
Order Form (the “Fees”) in full without setoff or deduction. Customer shall be responsible for all bank fees charged by its bank in connection with invoice payment.
2.2 Invoicing & Payment. Fees shall be paid to Ursa within 30 days after receipt of the invoice. Interest shall accrue on all overdue Fees at the greater of 1.5% per month or the highest lawful rate.
2.3 Taxes. The Fees do not include federal, state, or local sales, use, property, excise, services, or other taxes levied in connection with this Agreement. If applicable, any taxes or amounts in lieu thereof paid or payable by Ursa in relation to the provision of Content to Customer shall be invoiced in accordance with this Agreement (excluding only taxes on Ursa’s net income) and shall be paid by Customer to Ursa. All payments by Customer shall be exclusive of any Value Added Tax (“VAT”) chargeable to Ursa with respect to the Content, which shall be paid by Customer.
3. Intellectual Property Rights.
Except for the limited license expressly granted hereunder, Ursa hereby retains and reserves all right, title, and interest in the Content. To the extent Customer uses the Content to create a Derivative Work in breach of Section 1.2, in addition to any other remedies Ursa may have, Customer hereby assigns to Ursa all right, title, and interest in such Derivative Work. Nothing herein shall be deemed to grant any other license or rights in any other technology, products, or services to Customer.
4.1 Disclosure and Use. Neither Party will disclose the Confidential Information of the other Party to any person other than the employees, officers, representatives, professional advisers, and contractors of the receiving Party that need to know such information to carry out the purposes of this Agreement. Neither Party will use the Confidential Information of the other Party except for the purposes of this Agreement. Each Party shall protect the other Party’s Confidential Information using at least the same degree of care with which it treats its own Confidential Information of like nature. This paragraph will survive for 3 years after the effective date of the agreement.
“Confidential Information” means all nonpublic information communicated to one Party by or on behalf of the other Party 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 the Order Form and the Content. Notwithstanding, “Confidential Information” shall not include information which is: (a) rightfully in the receiving Party’s possession without obligation of confidentiality prior to receipt from the disclosing Party and as demonstrated by contemporary documentary evidence; (b) publicly known other than as a result of a breach by the receiving Party of this Agreement or any other 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 as demonstrated by contemporary documentary evidence.
4.2 Disclosure Exceptions. A Party may disclose the other Party’s Confidential Information to the extent required to comply with a law or court order or regulatory authority, provided that the receiving Party promptly notifies the disclosing Party of the requirement to disclose such information, cooperates with the disclosing Party in any attempt by the disclosing Party to prevent or limit such disclosure, and assure that Confidential Information treatment will be designated confidential under a protective order.
5. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULL EXTENT ALLOWED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED HEREIN, URSA EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT (A) ANY ACTION TAKEN, EXPENDITURES MADE, OR RESULTS PRODUCED BY THE CUSTOMER OR USERS BASED ON ANY USE OF THE CONTENT SHALL BE AT CUSTOMER’S OWN RISK, AND (B) URSA DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE, AND SHALL NOT BE LIABLE FOR, ANY THIRD PARTY DATA, INFORMATION, PRODUCTS, OR SERVICES USED ALONE OR IN CONJUNCTION WITH THE CONTENT.
6.1 Indemnity. Each Party shall indemnify, defend, and hold harmless the other Party and its respective officers, directors, employees, agents, contractors and owners from and against any and all claims, losses, liabilities, costs, damages, and expenses, including attorneys’ fees, expert fees, and other costs of legal defense including on appeal (collectively, “Losses”), arising out of any third-party claims, actions, or demands (collectively, “Claims”) to the extent they arise out of: (a) a breach by either Party of this Agreement or any of the representations, warranties, or covenants contained herein; and (b) either Party’s or any of its Users’ negligence or willful misconduct. Additionally, except in connection with an infringement claim against Customer under Section 6.2, Customer shall indemnify, defend, and hold harmless Ursa and its officers, directors, employees, agents, contractors and owners from and against any and all Losses arising out of any Claims to the extent they relate to Customer’s use of Content.
6.2 Infringement Indemnity.
(a) Ursa shall indemnify, defend, and hold harmless Customer, its Affiliates, and the respective officers, directors, employees, agents, contractors and owners of each of the foregoing from and against any and all Losses arising out of any lawsuit alleging infringement of a third party’s intellectual property rights based on Customer’s use of the Content in the form it was provided by Ursa to Customer (the “Infringing Materials”).
(b) If such a lawsuit has been filed, or in Ursa’s opinion is likely to be made, Customer agrees to permit Ursa, at its option and expense, to: (i) procure for Customer the right to continue using the Infringing Materials; (ii) replace or modify the Infringing Materials so that they become non-infringing; or (iii) terminate Customer’s use of the Infringing Materials, in which case Customer will destroy the Infringing Materials and, upon Ursa’s receipt of attestation of such destruction, Ursa will refund to Customer the Fees (or pro rata portion of Fees as applicable) associated with the Infringing Materials.
(c) Notwithstanding, Ursa has no liability for any such lawsuit to the extent it relates to or arises out of: (i) the combination or use of Content with any materials not supplied by Ursa; (ii) the alteration or modification of Content by any party other than Ursa, including Customer; (iii) Customer’s use of Content after Ursa has informed Customer of modifications or changes in such Content intended or required to avoid a Claim; or (iv) use of Content in a manner not authorized by this Agreement THIS SECTION SETS FORTH URSA’S ENTIRE OBLIGATION AND LIABILITY, AND CUSTOMER’S SOLE REMEDY, IN CONNECTION WITH ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION RELATING TO OR ARISING OUT OF THE CONTENT.
IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY SPECIAL, INDIRECT, RELIANCE, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF. EACH PARTY’S AGGREGATE LIABILITY TO THE OTHERFOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE SHALL NOT EXCEED THE FEES PAID TO URSA UNDER IN THE TWELVE MONTH PERIOD PRECEDING THE DATE UPON WHICH THE CLAIM AROSE.
8. Term and Termination.
8.1 Term. The term of this Agreement shall commence as set forth in the applicable Order Form and shall continue until terminated in accordance with this section.
8.2 Termination for Cause. Either Party may terminate this Agreement (or any or all affected Order Forms ) by giving written notice to the other Party in the event the other Party is in material breach of this Agreement or an Order Form and fails to cure such breach within thirty (30) days’ written notice thereof from the non-breaching Party. Either Party may terminate this Agreement immediately upon notice if the other Party: (i) becomes insolvent or generally fails to pay or is unable to pay or admits in writing its inability to pay its debts as they become due; (ii) applies for, consents to, or acquiesces in, the appointment of a trustee, receiver, administrator, or other custodian; (iii) makes a general assignment for the benefit of creditors; or (iv) commences any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any local, state, or federal bankruptcy or insolvency law or any dissolution or liquidation proceeding.
8.3 Effect of Termination/Suspension. Upon termination of any Order Form, Customer shall immediately cease using the Content covered thereunder. Termination of this Agreement shall not entitle Customer to any refund of any Fees, except that in the event Customer properly terminates any Order Form in accordance with Section 8.2 for Ursa’s material breach, Ursa shall refund to Customer Fees prepaid under such Order Form that are allocable to the period after termination. Sections 1.2 (second paragraph only), 2, 3, 5, 6, 7, 8.3, and 9.7 of this Agreement shall survive any termination of this Agreement. Without prejudice to any of its other remedies under this Agreement or at law, Ursa may suspend provision of and access to Content in the event of a breach by Customer.
9. General Provisions.
9.1 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. There are no third-party beneficiaries of this Agreement.
9.2 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, pandemic, 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 non-performance continues for 1 month, the Party not affected may terminate this Agreement by giving 15 days’ written notice to the affected Party.
9.3 Notices. Notice given hereunder must be in writing and given by in-hand delivery or by first class mail, email, 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 (a) when delivered, if given by in-hand delivery, and (b) 3 business days after the date of posting, if given by mail (c) upon receipt if given by email.
9.4 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.
9.5 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.
9.6 Assignment. Neither party may assign this Agreement in whole or in part without the prior written consent of the other party, except that either party may assign this Agreement in connection with a change of control (whether resulting from merger, consolidation, stock transfer, asset sale or otherwise) without the prior written consent of the other party. Any assignment in contravention of this provision shall be null and void. The Parties acknowledge and agree that the Fees are based upon Customer’s anticipated scope of use under the license granted hereunder as of the Effective Date. In the event of a change of control or restructuring of Customer or any of its Affiliates (whether pursuant to merger, acquisition, reorganization, sale or lease of substantially all of Customer’s or such Affiliate’s assets, operation of law or otherwise) that may have the effect of broadening the scope of Customer’s actual use 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.
9.7 Governing Law; Venue. This Agreement shall be governed exclusively by the laws of the State of New York, without regard to the conflicts of laws rules of any jurisdiction. Each Party agrees that any action, claim, or proceeding brought to enforce or interpret 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 Northern District of New York, and the Parties waive any objections to jurisdiction or venue of any such court. In the event that any suit, claim, proceeding, or action is instituted to enforce or interpret any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party its reasonable attorney’s fees and legal costs, including upon appeal.
9.8 Entire Agreement; Modification; Conflict. This Agreement, including all Order Forms, 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.