Antaris Platform Terms of Service
THESE TERMS OF SERVICE (THE "TERMS") ARE A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND ANTARIS, INC. ("ANTARIS"). BY EXECUTING A PROJECT AGREEMENT (AS DEFINED BELOW) THAT INCLUDES THESE TERMS BY REFERENCE OR BY USING THE ANTARIS PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE ANTARIS PLATFORM.
In consideration of the mutual promises and agreements set forth in these Terms, the parties agree as follows:
1. DEFINITIONS.
1.1 “Antaris Platform” means the Antaris satellite design and testing platform provided by Antaris; provided that such definition excludes the Spacecraft Software and any Open Source Software that may be used to provide such platform.
1.2 “Authorized Purposes” means, unless otherwise permitted in an applicable Project Agreement, use of the Antaris Platform solely for Customer’s internal purposes in designing satellites and testing virtual simulations of such designs, and not for the provision of services to any third party. For avoidance of doubt, Authorized Purposes includes use of the Antaris Platform to demonstrate its capabilities to potential clients but not, unless otherwise permitted in an appliable Project Agreement, to provide services to such potential clients.
1.3 “Authorized Users” means Customer’s employees, consultants, contractors, and/or agents: (a) who are authorized by Customer to access and use the Antaris Platform on Customer’s behalf, and (b) who have been supplied user identifications and passwords for such purpose by Customer (or by Antaris at Customer’s request).
1.4 “Confirmed Client” means a third party with whom Customer has contracted to design and build one or more satellites (as set forth in an applicable Project Agreement) and with whom Antaris has entered into a written agreement to use the Antaris Platform and Spacecraft Software. Antaris must provide written confirmation that a Customer client is a Confirmed Client before Customer is permitted to use the Antaris Platform to provide services to such client.
1.5 “Customer Data” means all Customer and Confirmed Client data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or its Authorized Users, and received and analyzed by the Antaris Platform.
1.6 “Customer System” means Customer’s internal computers, servers and other equipment and software used to access and use the Antaris Platform.
1.7 “Documentation” means the printed or electronic user instructions and help files made available by Antaris for use with the Antaris Platform, as may be updated from time to time by Antaris.
1.8 “Spacecraft Software” means those binary software images made available for download from the Antaris Platform for installation on satellites designed on the Antaris Platform and built by Customer.
1.9 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.10 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.11 “Open Source Software” means open source, public source or freeware software made available under or otherwise subject to any license that (a) is considered an open source software license by the Open Source Initiative or a free software license by the Free Software Foundation, or any license substantially similar to any of the foregoing.
1.12 “Project Agreement” means the Antaris ordering documents required for the purchase of Services and use of the Spacecraft Software and that are executed by the parties from time to time, including any mutually acceptable modifications, supplements, and addenda thereto. Project Agreements are incorporated herein.
1.13 “Services” means the Antaris Platform and Support Services.
1.14 “Subscription Term” means the period for which Customer is permitted to access and use the Antaris Platform. The applicable Subscription Term shall be set forth in a Project Agreement.
1.15 “Support Services” means the support and maintenance services provided by Antaris to Antaris Platform subscribers, as further described in Customer’s Project Agreement (if applicable).
2. PROJECT AGREEMENTS; LICENSES; RESTRICTIONS.
2.1 Project Agreements. Subject to the terms of this Agreement, Customer may order Services and Spacecraft Software by entering into one or more Project Agreements. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Antaris regarding any future functionality or features
2.2 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, Antaris, during the relevant Subscription Term, hereby grants Customer and, if applicable its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Antaris Platform in accordance with the Documentation in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the Antaris Platform may be subject to certain limitations – for example, certain functionality of the Antaris Platform may be limited, as further described in the applicable Project Agreement.
2.3 No License to Spacecraft Software. For avoidance of doubt, the license set forth in Section 2.2 does not permit Customer to download, install or use Spacecraft Software. Customers license to use the Spacecraft Software, if any, will be as set forth in an appliable Project Agreement.
2.4 Confirmed Clients. If Customer desires to utilize the Antaris Platform to design, test and build satellites for a Confirmed Client, both Customer and the applicable Confirmed Client must have entered into Project Agreements for that specific satellite project. Once Antaris has confirmed both Project Agreements and all appliable fees have been paid by both Customer and the Confirmed Client, then, subject to Customer’s compliance with the terms and conditions contained in these Terms, Antaris, during the relevant Subscription Term, hereby grants Customer and, if applicable its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Antaris Platform in accordance with the Documentation for both Customer’s Authorized Purposes and for purposes of providing satellite design and testing services to the applicable Confirmed Client under the applicable Project Agreement.
2.5 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Antaris Platform or the Spacecraft Software; (b) modify, translate, or create derivative works based on any element of the Antaris Platform, the Spacecraft Software or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Antaris Platform or Spacecraft Software; (d) except as otherwise expressly permitted herein, use the Antaris Platform or Spacecraft Software for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Authorized Users; (e) remove any proprietary notices from the Documentation or Spacecraft Software; (f) use the Antaris Platform or Spacecraft Software for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Antaris Platform; (h) introduce any Open Source Software into the Antaris Platform or Spacecraft Software; or (i) attempt to gain unauthorized access to the Antaris Platform, the Spacecraft Software, Antaris’ related systems or networks, or to the content and data uploaded by other users.
2.6 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer or any Authorized User, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Antaris.
3. THIRD PARTY PRODUCTS AND HOSTING.
3.1 Third Party Products. Customer understands that the successful design and build of a satellite will require the procurement of hardware and software components not provided by Antaris (“Third-Party Products”). Customer shall procure such items solely at its cost and in a timely manner to avoid project delays. The Antaris Platform may permit Customer to incorporate certain Third-Party Products into Customer’s satellite design and may facilitate the purchase of such Third-Party Products by Customer. Any images of such Third-Party Products on the Antaris Platform are for illustrative purposes only. Although Antaris makes every effort to provide accurate information about such Third-Party Products, we cannot guarantee that the third-party provider has provided correct information to us or that it will not change the Third-Party Products without notice to us. Therefore, Customer understands and agrees that the Third-Party Products it receives may have different specifications from those displayed on the Antaris Platform. All Third-Party Products shown on the Platform are subject to availability and Antaris does not provide any guarantee of any Third-Party Product’s availability or performance.
3.2 Third Party Hosting. Antaris may use the services of one or more third parties to deliver all or part of the Antaris Platform. Antaris will pass through any warranties to the extent that Antaris receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
4. ACCOUNTS AND PASSWORDS.
4.1 Accounts. Customer and all Authorized Users will be required to have an account with Antaris before being permitted to access and use the Antaris Platform. To create an account, the user must complete the registration process by providing Antaris with current, complete, and accurate information. All the information provided when registering for an account must be accurate, complete, and up to date. Users may change, correct, or remove their account information by logging into the account directly and making the desired changes. Antaris reserves the right to terminate any account for which the provided information is untrue, inaccurate, incomplete, or not current.
4.2 Passwords. Customer and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. Customer is solely responsible for any and all access and use of the Antaris Platform that occurs using any Authorized User’s account. Customer shall not share, and shall restrict its Authorized Users from sharing, passwords. Customer agrees to immediately notify Antaris of any unauthorized use of any account or login and password issued to Customer and/or its Authorized Users. Antaris shall have no liability for any loss or damage arising from Customer’s or its Authorized Users failure to comply with the terms set forth in this Section.
4.3 No Circumvention of Security. Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Antaris Platform. Customer will immediately notify Antaris of any breach, or attempted breach, of security known to Customer.
5. CUSTOMER OBLIGATIONS.
5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Antaris Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a separate agreement between Customer and Antaris referencing these Terms, Antaris shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
5.2 Acceptable Use. Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Antaris Platform and Spacecraft Software. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Antaris Platform and Spacecraft Software, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Antaris Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Antaris Platform or another's computer or mobile device; (d) not to use the Antaris Platform or Spacecraft Software for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Antaris Platform or interfere with others’ ability to access or use the Antaris Platform; (f) not to distribute, promote or transmit through the Antaris Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) to comply with all regulations, policies and procedures of networks connected to the Antaris Platform and Antaris’ service providers; and (i) to use the Antaris Platform and Spacecraft Software only in accordance with the Documentation. Customer acknowledges and agrees that Antaris neither endorses any Customer communications or Customer Data, nor does Antaris assume any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Antaris may, but is not required to, remove any violating content posted or stored using the Antaris Platform or transmitted through the Antaris Platform, without notice to Customer. Notwithstanding the foregoing, Antaris does not guarantee and is not obligated to verify, authenticate, monitor, or edit the Customer Data, or any other information or data input into or stored in the Antaris Platform for completeness, integrity, legality, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, legality, quality and accuracy of Customer Data and other information input into the Antaris Platform. Customer shall be solely responsible for ensuring compliance with applicable laws and regulations in its use of the Antaris Platform.
5.3 Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current, and complete information as necessary for Antaris to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Antaris of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from Antaris at the e-mail addresses specified by it for login purposes. In addition, Customer agrees that Antaris may rely and act on all information and instructions provided to Antaris by Authorized Users from such e-mail addresses.
5.4 Temporary Suspension. Antaris may temporarily suspend Customer’s or its Authorized Users’ access to the Antaris Platform in the event that either Customer or any of its Authorized Users is engaged in, or Antaris in good faith suspects Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Antaris will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Antaris’ exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its Authorized Users’ accounts. Customer agrees that Antaris shall not be liable to Customer, Authorized Users, or any third party if Antaris exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Antaris’ reasonable satisfaction, Antaris shall reinstate Customer’s and its Authorized Users’ access to and use of the Antaris Platform. Notwithstanding anything in this Section to the contrary, Antaris’ suspension of access to the Antaris Platform is in addition to any other remedies that Antaris may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Antaris may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6. AVAILABILITY; SECURITY.
6.1 Availability. Subject to the terms and conditions of these Terms, Antaris will use commercially reasonable efforts to make the Antaris Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond Antaris’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Antaris may make changes to the Antaris Platform and/or Spacecraft Software at any time and without notice to Customer. Certain enhancements to the Antaris Platform and Spacecraft Software made generally available at no cost to all users during the applicable Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Antaris Platform and Spacecraft Software may require the payment of additional fees, and Antaris will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Antaris Platform and Spacecraft Software include, any enhancements, updates, upgrades and new modules to the Antaris Platform provided in connection therewith and subsequently provided by Antaris to Customer hereunder.
6.2 Security; Privacy Policy. Antaris will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data in a in a manner consistent with what Antaris supplies generally to its other users. Please review Antaris’ privacy policy, which is available on the Antaris Website (the “Privacy Policy”) and which further explains how Antaris collects and uses the Customer Data and other information that Antaris collects through users’ use of the Antaris Platform.
7. FEES AND PAYMENT.
7.1 Fees. Customer agrees to pay all applicable fees using one of the payment methods Antaris supports. Except as otherwise specified in these Terms, (a) fees are based on Services and software licenses purchased, regardless of actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable. Subscription fees are based on annual periods that begin on the Subscription Term start date and each anniversary thereof. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
7.2 Payment. Antaris will invoice customer for the amounts set forth in applicable Project Agreements and payment of such invoices is due upon the date set forth for such payment in the Project Agreement. Customer agrees that Antaris may invoice Customer for any unpaid fees, including without limitation any amounts owed by Customer that cannot be processed. Customer is responsible for providing complete and accurate billing and contact information to Antaris and notifying Antaris of any changes to such information. Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date.
7.3 AUTOMATIC RENEWAL. UNLESS CUSTOMER CANCELS SUCH SUBSCRIPTIONS AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT SUBSCRIPTION TERM, ANTARIS WILL AUTOMATICALLY RENEW SUBSCRIPTIONS FOR SERVICES ON THE FIRST BUSINESS DAY FOLLOWING THE END OF THE SUBSCRIPTION TERM AND INVOICE CUSTOMER FOR SUCH RENEWAL SUBSCRIPTION(S).
CUSTOMER MAY CANCEL ITS SUBSCRIPTION BY PROVIDING NOTICE WITHING 30 DAYS OF THE END OF THE THEN CURRENT SUBSCRIPTION TERM. SUBSCRIPTION FEES ARE NOT REFUNDABLE. IF CUSTOMER CANCELS ITS SUBSCRIPTION FEWER THAN THIRTY (30) DAYS PRIOR TO THE LAST DAY OF THE THEN-CURRENT SUBSCRIPTION TERM, THE SUBCRIPTION WILL AUTOMATICALLY RENEW AND CUSTOMER WILL NOT RECEIVE A REFUND, BUT WILL CONTINUE TO ENJOY ITS SUBSCRIPTION BENEFITS FOR THE REMAINDER OF THE SUBSCRIPTION(S) FOR WHICH IT HAS PAID.
7.4 Overdue Charges. If Antaris does not receive fees by the due date, then at Antaris’ discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Antaris may condition future purchases of Services on payment terms shorter than those specified in Section 8.2 (Payment).
7.5 Suspension of Service. If any amounts owed by Customer for the Services are more than thirty (30) days overdue, Antaris may, without limiting Antaris’ other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Antaris Platform until such amounts are paid in full; provided that Antaris agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
7.6 Taxes. The fees applicable to Customer’s and its Authorized Users’ use of the Antaris Platform are exclusive of all sales, use, value added, and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Antaris’ net income).
8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
8.1 Mutual Representations and Warranties. Each party represents, warrants, and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
8.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE ANTARIS PLATFORM, SPACECRAFT SOFTWARE AND SUPPORT SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE AND RECEIPT OF THE ANTARIS PLATFORM, SPACECRAFT SOFTWARE AND SUPPORT SERVICES IS AT ITS OWN RISK. ANTARIS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY ANTARIS IN SECTION 8 ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE ANTARIS PLATFORM IS LICENSED AND NOT SOLD.
ANY WARRANTY FOR THIRD-PARTY PRODUCTS WILL BE THE WARRANTY PROVIDED BY THE MANUFACTURER OF SUCH THIRD-PARTY PRODUCT DIRECTLY TO CUSTOMER. ANTARIS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE THIRD-PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY, ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
NO AGENT OF ANTARIS IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF ANTARIS AS SET FORTH HEREIN. ANTARIS DOES NOT WARRANT THAT: (A) THE USE OF THE ANTARIS PLATFORM OR SPACECRAFT SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES OR SPACECRAFT SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE ANTARIS PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES OR SPACECRAFT SOFTWARE WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE ANTARIS PLATFORM OR SPACECRAFT SOFTWARE WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE ANTARIS PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ANTARIS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS (INCLUDING, WITHOUT LIMITATION, ANY PURCHASES) MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; (B) ANTARIS SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE SERVICES, DELAYS OR ERRORS CAUSED BY CUSTOMER'S USE OF THE SERVICES, OR ANY PART THEREOF; (C) ANTARIS IS NOT THE MANUFACTURER OF ANY THIRD-PARTY PRODUCT AND CUSTOMER IS NOT RELYING ON ANTARIS TO PROVIDE ANY SATELLITE DESIGN ADVICE OR SERVICES; AND (D) ANTARIS SHALL NOT BE RESPONSIBLE FOR (i) MISREPRESENTATIONS OF ANY THIRD-PARTY PRODUCT MANUFACTURER OR (ii) THE FULFILLMENT OF ANY THIRD-PARTY PRODUCT ORDERS PLACED BY CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE CANCELLATION OF ANY SUCH ORDERS AND/OR THE RETURN OR SERVICING OF ANY THIRD-PARTY PRODUCTS. CUSTOMER SHALL HOLD ANTARIS AND ITS DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF CUSTOMER'S USE OF THE SERVICES.
9. INDEMNIFICATION.
9.1 Antaris Indemnity.
(a) General. During the Term, Antaris, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Antaris Platform or Spacecraft Software infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing such Third-Party Claim. Antaris’ obligations under this Section are conditioned upon (i) Antaris being promptly notified in writing of any Third-Party Claim under this Section, (ii) Antaris having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) Customer providing all reasonable assistance (at Antaris’ expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Antaris settle any such Third-Party Claim without Customer’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to Antaris’ right to control the defense and settlement.
(b) Mitigation. If any claim which Antaris is obligated to defend has occurred, or in Antaris’ determination is likely to occur, Antaris may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Antaris Platform and/or Spacecraft Software, (b) substitute a functionality equivalent, non-infringing replacement for the Antaris Platform and/or Spacecraft Software, (c) modify the Antaris Platform and/or Spacecraft Software to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Antaris Platform and/or Spacecraft Software due to such claim and the remaining days in the then-current Subscription Term.
(c) Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Antaris Platform and/or Spacecraft Software in combination with any software, hardware, network or system not supplied by Antaris where the alleged infringement relates to such combination, (iii) any modification or alteration of the Antaris Platform and/or Spacecraft Software other than by Antaris, (iv) Customer’s continued use of the Antaris Platform and/or Spacecraft Software after Antaris notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; and/or (vi) the Customer System.
(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF ANTARIS WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE ANTARIS PLATFORM, SPACECRAFT SOFTWARE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF ANTARIS WITH RESPECT THERETO.
9.2 Customer Indemnity. Customer shall defend Antaris and its affiliates, licensors and their respective officers, directors and employees (“Antaris Indemnified Parties”) from and against any and all actions, proceedings, claims and demands by a third party (each a “Third-Party Claim”) which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Antaris of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights or privacy rights; (b) Customer’s use or alleged use of the Antaris Platform in violation of applicable law or other than as permitted under these Terms or (c) Customer’s use of any Third-Party Products. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Antaris providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Customer settle any such Third-Party Claim without Antaris’ prior written approval. Antaris may, at its own expense, engage separate counsel to advise Antaris regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
10. CONFIDENTIALITY.
10.1 Confidential Information. Each party (the “Receiving Party”) hereby understands and acknowledges that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s or its suppliers’ or Confirmed Clients’ business or products (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Antaris shall include the Spacecraft Software any and all non-public information regarding features, functionality and performance of the Antaris Platform and the Third-Party Products. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
10.2 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
11. PROPRIETARY RIGHTS.
11.1 Antaris Platform and Antaris Spacecraft Software. As between Antaris and Customer, all right, title and interest in the Antaris Platform, the Spacecraft Software and any other Antaris materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Antaris Platform or Spacecraft Software, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Antaris or Antaris’ licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Antaris all evaluations, ideas, feedback and suggestions made by Customer to Antaris regarding the Antaris Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
11.2 Customer Data. As between Antaris and Customer, all right, title and interest in the Customer Data, belongs to and is retained solely by Customer. By posting, displaying, sharing, or distributing Customer Data on or through the Antaris Platform, Customer hereby grants to Antaris a limited, sublicensable non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute, and otherwise use the Customer Data, and perform all acts with respect to the Customer Data as may be necessary for Antaris to provide the Services to Customer. Antaris may modify, copy, translate or make any derivative works of Customer Data in connection with its provision of the Antaris Platform as required to format such Customer Data for presentation within the Antaris Platform, to continually improve the Antaris Platform and to develop new services and offerings.
11.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Antaris may monitor Customer’s use of the Services and use Customer Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to Antaris Platform and its users (“Aggregated Statistics”). As between Antaris and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Antaris. Customer acknowledges that Antaris will be compiling Aggregated Statistics based on Customer Data and information input by other customers into the Antaris Platform and Customer agrees that Antaris may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
12. LIMITATION OF LIABILITY.
12.1 No Consequential Damages. NEITHER ANTARIS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF ANTARIS OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE ANTARIS PLATFORM, ANCILLARY SERVICES, SUPPORT SERVICES AND/OR THE RESULTS THEREOF. ANTARIS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
12.2 Limits on Liability. NEITHER ANTARIS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ANTARIS UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
12.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
13. TERM AND TERMINATION.
13.1 Term. The term of these Terms commence upon the execution of an applicable Project Agreement and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between Customer and Antaris referencing these Terms
13.2 Termination for Cause. A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. Antaris may terminate these Terms upon notice to Customer if the country in which Customer or an applicable Confirmed Client intends to use the Antaris Platform or Spacecraft Software becomes an Embargoed Country (as defined in Section 15.5), if Customer, an applicable Confirmed Client, or any of their Authorized Users is determined to be a Designated National (as defined in Section 15.5), or if, in Antaris’ determination, Customer, an applicable Confirmed Client, or any of their Authorized Users is otherwise no longer legally permitted to use the Antaris Platform and/or Spacecraft Software. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Antaris for the period prior to the effective date of termination.
13.3 Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Antaris Platform and Antaris’ performance of all Support Services and Ancillary Services shall cease; (b) Customer and its Authorized Users shall cease all use of and destroy any copies of images shared by other users of the Antaris Platform that Customer has downloaded; and (c) all fees and other amounts owed to Antaris shall be immediately due and payable by Customer. Antaris shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete or retain all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.
13.4 Survival. This Section and Sections 1, 2.5, 2.6, 5.2, 8.2, 9, 10, 11, 12, 13.3, 14 and 15 shall survive any termination or expiration of these Terms.
14. DISPUTES BETWEEN USERS; INTELLECTUAL PROPERTY INFRINGEMENT.
14.1 No Agency or Partnership. No agency, partnership, joint venture, or employment is created as a result of these Terms or Customer’s use of any part of the Antaris Platform. Customer does not have any authority whatsoever to bind Antaris in any respect. The parties agree that Antaris is a technology company whose primary business is providing a platform upon which users can design satellites and test virtual simulations of those satellites, and operate those satellites on orbit. Neither Antaris nor any users of the Antaris Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.
14.2 Disputes Between Users.
(a) Customer’s interactions with individuals and/or organizations found on or through the Antaris Platform, including Customer’s decision to use Third-Party Products, materials, advice or other information provided by such individuals and/or organizations is Customer’s decision for which Customer alone is responsible. Customer understands and agrees that Antaris does not and cannot make representations as to the suitability of (i) any images, information and/or data Customer may access via the Antaris Platform; (ii) any individual or entity Customer may decide to interact with on or through the Antaris Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any user.
(b) IF THERE IS A DISPUTE BETWEEN USERS OF THE ANTARIS PLATFORM, OR BETWEEN ANY USER OF THE ANTARIS PLATFORM AND ANY OTHER THIRD PARTY, CUSTOMER ACKNOWLEDGES AND AGREES THAT ANTARIS IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CUSTOMER AND ANY OTHER USER OR THIRD PARTY, CUSTOMER HEREBY RELEASES ANTARIS, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
15. MISCELLANEOUS.
15.1 Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the address set forth in the preamble to these Terms (as updated by the parties from time to time pursuant to this Section) by: (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
15.2 Governing Law and Venue. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be Santa Clara County, California. Notwithstanding the foregoing, Antaris has the right to pursue equitable relief in the state and federal courts located California, and Customer agrees to the exclusive jurisdiction and venue of such courts.
15.3 Publicity. Antaris has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in Antaris business development and marketing efforts, including without limitation Antaris’ web site.
15.4 U.S. Government Customers. If Customer is a Federal Government entity, Supplier provides the Antaris Platform and Spacecraft Software, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Supplier Service and Spacecraft Software include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.
15.5 Export. The Antaris Platform and Spacecraft Software utilize software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Antaris Platform and Spacecraft Software shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Antaris Platform and/or Spacecraft Software, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Antaris Platform and/or Spacecraft Software may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Antaris and its licensors make no representation that the Antaris Platform or Spacecraft Software is appropriate or available for use in other locations. No information acquired through the use of the Antaris Platform and/or Spacecraft Software, may be used by Customer or any Confirmed Client for nuclear activities, chemical or biological weapons, or missile projects.
15.6 General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Antaris. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors, and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for Customer’s payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.