In connection with an Order Form entered into between Subscriber and Tango, Tango may provide Subscriber with access to certain of its Subscription Services and provide Professional Services as set forth in a mutually agreed statement of work. Subscriber’s use and receipt of the Services is subject to the additional terms herein (the “Services Terms”). Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Order Form. In the event of any conflict or inconsistency between these Services Terms and the terms in an Order Form, these Services Terms will control.
PLEASE READ THESE SERVICES TERMS CAREFULLY. BY AGREEING TO THE ORDER FORM, YOU AGREE TO BE BOUND BY THESE SERVICES TERMS. IF YOU DO NOT AGREE TO ALL OF THESE SERVICES TERMS, DO NOT AGREE TO THE ORDER FORM OR USE OR RECEIVE THE TANGO SERVICES.
1. Access and Use of Subscription Service.
1.1 By Subscriber. Subject to the terms and conditions of this Agreement and the payment of the fees set forth in the Order Form, Tango grants Subscriber a limited, non-exclusive, non-transferable right to allow up to the number of Subscriber’s authorized users (“Users”), for which Subscriber has paid the applicable fees to Tango, to access and use the Subscription Services on a named-user basis during the subscription terms set forth in the applicable Order Form for Subscriber’s internal business purposes only.
1.2 Restrictions. The Subscription Services constitute protected copyrighted material and valuable trade secrets of Tango. Accordingly, Subscriber will not: (i) authorize or permit use of the Subscription Services or Documentation by persons other than its Users; (ii) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the Subscription Services; (iii) use or access the Subscription Services for the purpose of building a competitive product; (iv) copy, frame, modify or create any derivative works of the Subscription Services (or any component, part, feature, function, user interface, or graphic thereof) or Documentation, except with the prior written consent of Tango or to the extent such restriction is prohibited by applicable law; (v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Subscription Services is compiled or interpreted; (vi) use the Subscription Services as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SAAS offerings; (vii) perform or disclose any benchmark or performance tests of the Subscription Services without Tango’s prior written consent; (viii) perform or disclose any security testing of the Subscription Services or associated infrastructure without Tango’s prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (ix) remove or modify any program markings or any notice of Tango’s or its licensors’ proprietary rights; (x) use the Subscription Services in violation of applicable laws; (xi) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (xii) send or store malicious code in connection with the Subscription Services; (xiii) interfere with or disrupt performance of the Subscription Services or the data contained therein; (xiv) attempt to gain access to the Subscription Services or its related systems or networks in a manner not set forth in the applicable Documentation; or (xv) cause or permit any Users or any other party to do any of the foregoing. Additionally some of the content made available through the Subscription Services is provided by third parties and Subscriber must use such data in compliance with licensing terms applicable to such data. Subscriber is responsible for its Users’ compliance with the terms of this Section.
1.3 Passwords. Subscriber is responsible for maintaining the security and confidentiality of its User’s login information and credentials for its subscription to the Subscription Services and is responsible for any use of the Subscription Services utilizing such information and credentials. Login credentials and passwords are assigned on a named user basis and may not be shared by multiple individuals, provided that, upon written notification to Tango, Subscriber may reassign credentials to new named Users. Subscriber may not (i) permit login credentials, identification or password codes to be cached in proxy servers and accessed by individuals who are not authorized Users, or (ii) permit access to the Subscription Services through a single identification or password code being made available to multiple users on a network.
1.4 Suspension. Tango reserves the right, in its reasonable discretion, to suspend or terminate access to the Subscription Services by Subscriber for any reason. Tango will have no responsibility or liability for any such suspension.
2. Data and Results. As between Subscriber and Tango, Subscriber is solely responsible for the accuracy and quality of the data submitted, processed, or stored by Subscriber and Users using the Subscription Services (collectively “Subscriber Data”). The Parties agree that under no circumstances will Tango be responsible or have any liability for Subscriber’s or a User’s use of the Subscriber Data. Subscriber and each User are responsible for updating its own Subscriber Data. Tango may use all information, data, documents and any other output results generated by queries, data feeds, and other use of and access to the Subscription Services by Subscriber (collectively “Results”) to provide and improve the Subscription Services, and may use and include de-identified, aggregated forms of Results as part of Tango’s Services offerings. Tango will have no responsibility for any decisions made on the basis of Results or for the completeness or accuracy of any predictive or analytical Results or for their usefulness for Subscriber’s purposes.
3. No Personally Identifiable Information. The Subscription Services are not designed or maintained in manner to process, handle or protect any personally identifiable information or other sensitive data. To the extent that the parties wish to add services that involve the processing of personally identifiable information or other sensitive data, the parties may execute a Statement of Work to add such Services that (i) specifically identifies the types of personally identifiable information or other sensitive data to be provided to the Tango service and (ii) any additional terms applicable to such Services, provided that in the absence of such a Statement of Work, Subscriber must not provide personally identifiable information or other sensitive data to Tango or its services.
4. Security. Tango obtains an annual Service and Organization Controls (SOC) 2 Report, a redacted copy of which will be made available to Subscriber upon request.
5. Termination. Tango may terminate the Agreement if Subscriber breaches any of its obligations under the Agreement, and such breach is not cured within 5 days of the breaching Party’s receipt of written notice of the breach. Additionally, Tango may terminate the Agreement immediately if Subscriber’s or a User’s acts with respect to the Subscription Services subject Tango to actual or potential civil or criminal liability, or for any misuse of the Services by Subscriber, including unlawful use, or any violations of the restrictions set forth in Section 1.2. Upon the termination or expiration of the Agreement (the “Termination Date”), the rights and licenses that were granted to Subscriber under the Agreement will cease. Upon a termination of this Agreement, Subscriber will make payment to Tango for all unpaid Services up to the Termination Date within 30 days of Subscriber’s receipt of Tango’s invoice. Upon any termination of this Agreement for convenience, the Subscriber will pay Tango an amount equal to the Fees that would otherwise have been payable under the applicable Order Forms. Subject to Subscriber’s payment of any fees owed as of the Termination Date, Subscriber will be permitted to continue to access the Subscription Services for a period of 10 business days after the Termination Date for the sole purpose of copying or downloading its Subscriber Data and any Results. After this extended access period, Tango will remove, delete and/or destroy any Subscriber Data remaining on the Subscription Services. The termination of this Agreement will terminate all Order Forms unless otherwise explicitly provided by Tango.
6. Fees; Payment Terms. Subscriber will pay Tango the Subscription Fees set forth in the Order Form. Tango will invoice Subscriber annually in advance for each subscription year for the Subscription Services. Unless otherwise agreed in a Statement of Work, Tango will invoice Subscriber monthly for Professional Services rendered during the preceding monthly period and any expenses incurred. Payment terms are 30 days from date of receipt of invoice. Past due balances are subject to interest equal to the lower of 1 ½% per month or the maximum rate allowed by law. Tango may, at its discretion, engage third parties to assist in the collection of past due accounts. Subscriber will be liable to Tango for all reasonable costs of third party collection activity, including attorneys’ fees, resulting from Subscriber’s past due account. Invoices not paid within 60 days may result in Tango restricting or removing access to the Subscription Services until such invoices are paid in full.
7. Taxes. Subscriber will be responsible for any federal, state and local sales, use, excise, ad valorem, value-added, and other similar type taxes and duties (“Taxes”) imposed on the purchases of Services (including implementation where applicable). Tango will use commercially reasonable efforts to include any applicable Taxes on invoices. For other Taxes, Subscriber has a duty to self-report and will indemnify Tango should any Taxes go unreported or unpaid by Subscriber to a taxing jurisdiction. If Subscriber produces supporting documentation certified by state authority authorizing Subscriber to pay such Taxes directly, then Tango will withhold from including such Taxes on invoices. It is agreed that each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.
8. Tango Property. Tango owns all right, title and interest in and to (i) the Subscription Services (and any and all configurations, developments, modifications, and derivative works of the Subscription Services); (ii) any work product, concepts, inventions, information, drawings, designs, programs, or software (whether developed by Tango, Subscriber, either alone or with others, and whether completed or in-progress) created as part of the Professional Services; (iii) any materials provided by Tango to Subscriber or a User with respect to the Subscription Services, including but not limited to any Documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by Tango or its suppliers, such as text, graphics (including the underlying web-presentation code of the Subscription Services), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by Tango to provide the Subscription Services to Subscriber, and (iv) all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively “Tango Property”). This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Tango Property are transferred to Subscriber under this Agreement. Tango reserves all rights not expressly granted by this Agreement and no licenses are granted by Tango to any party, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. To the extent that Subscriber or any User owns any copyright, patent, trade secret, or any proprietary rights in and to the Tango Property, Subscriber hereby assigns to Tango, its successors and assigns, and Subscriber will cause all Users to assign to Tango, its successors and assigns, all right, title and interest in and to the Tango Property, including, but not limited to, all rights in and to any inventions, designs and intellectual property rights embodied in the Tango Property. Subscriber will execute, and cause any User to execute, any documents in connection with such assignment that Tango may reasonably request. Subscriber appoints Tango as its attorney-in-fact to execute assignments of, and register all rights to, the Tango Property and the intellectual property rights in the Tango Property. This appointment is coupled with an interest. Subscriber will enter into agreements with its Users or any other party as necessary to establish Tango’s sole ownership in Tango Property, and upon Tango’s request, Subscriber will provide Tango with copies of such agreements.
9. Confidentiality. Tango is the owner of valuable trade secrets and other confidential information and licenses certain of such information from others. Such materials include, but are not be limited to, Tango Property, computer code, technical and business information regarding Tango’s inventions or products, technical procedures, research and development methods and results, confidential financial information, marketing and business plans, and customer lists (collectively, “Confidential Information”). Subscriber acknowledges that, in performing under this Agreement, it may have access to Tango’s Confidential Information and may have password access to secure functions and facilities provided by Tango. The term Confidential Information includes all information and data which at the time of disclosure either (i) is marked as “Confidential” or “Proprietary”; (ii) is otherwise reasonably identifiable as the confidential or proprietary information of Tango; or (iii) should reasonably be understood to be confidential or proprietary information of Tango given the nature of the information and the circumstances surrounding its disclosure. Confidential Information does not include: (i) information that is now or hereafter becomes, through no act or omission of the Subscriber, generally known to the public or in the public domain; (ii) information that was acquired by the Subscriber prior to entering into this Agreement and without restriction on the information’s use and disclosure; (iii) information that has been or is hereafter received by the Subscriber from a third party who has rightfully and lawfully disclosed the information to the Subscriber; or (iv) information that the Subscriber discloses pursuant to written permission of Tango. Subscriber will, during the term of Subscriber’s subscription and thereafter, take all steps reasonably necessary to hold in confidence and to protect from unauthorized disclosure to the public or to third parties Tango’s Confidential Information to the same extent and in the same manner that Subscriber’s organization protects its own Confidential Information or as it requires others to protect its Confidential Information, whichever is more stringent. Subscriber acknowledges that disclosure of any Confidential Information may give rise to irreparable injury to Tango whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, Tango is entitled to injunctive relief against Subscriber’s breach or threatened breach of this Section 9 as well as any other legal remedies that are available.
10. Subscriber Warranties. By entering into an Order Form, Subscriber represents and warrants that it has obtained all rights, consents and approvals necessary to provide the Subscriber Data to Tango and that the Subscriber Data and other materials provided by Subscriber: (a) do not and will not infringe or misappropriate the intellectual property rights of any third party; (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty; (c) will not be defamatory, libelous, unlawfully threatening or harassing; (d) will not be obscene or indecent; and (e) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity.
11. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND TANGO SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SUBSCRIBER SPECIFICALLY ACKNOWLEDGES THAT TANGO, ITS LICENSORS AND THEIR SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT SUBSCRIBER’S SPECIFIC REQUIREMENTS WILL BE SATISFIED. SUBSCRIBER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES.
12. Indemnification
12.1 By Tango. Tango will indemnify, defend and hold Subscriber, its owners, officers, employees, agents, successors and assigns harmless from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from claims by any third party that (i) Subscriber’s use of the Subscription Services in accordance with this Agreement and the documentation infringes or misappropriates the intellectual property rights of such third party, provided that Tango will have no obligation to defend, indemnify and hold Subscriber harmless for claims of infringement if: (a) Subscriber or a User modifies the Subscription Services; (b) Tango complies with the written designs or specifications supplied by Subscriber; (c) Subscriber or a User combines the Subscription Services with any products or services not provided or licensed by Tango; (d) Subscriber or a User fails to strictly adhere to Tango’s instructions for the use and maintenance of the Subscription Services, or (ii) are caused by Tango’s gross negligence or willful misconduct.
12.2 By Subscriber. Subscriber will indemnify, defend and hold Tango, its owners, officers, employees, agents, successors and assigns harmless from and against any and all claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) arising from claims by a User or any third party that (i) relate to a use of predictive or analytical Results; (ii) are based on or caused by unauthorized access to the Subscription Services using a Subscriber password or account obtained from Subscriber or a User; (iii) Subscriber’s breach of Sections 3, 9 or 10; (iv) result from any failure by Subscriber to obtain any consents, authorizations or permissions necessary for Tango to access or use any Subscriber Data, software, systems, databases, trademarks, trade names, service marks, logos and other similar indicia of origin or other materials provided or made available by Subscriber (the “Subscriber-Provided Materials”); (v) the Subscriber-Provided Materials or other materials provided by a User, or Tango’s use thereof in connection with this Agreement, infringe or misappropriate the intellectual property rights of such third party; or (vi) are caused by Subscriber’s or a User’s gross negligence or willful misconduct.
12.3 Procedure. It is further agreed that (i) the Party who is obligated to provide indemnification (the “Indemnifying Party”) will be notified in writing promptly by the Party seeking indemnification (the “Indemnified Party”) of any such claim or demand (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the Indemnified Party’s failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be expressly approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will use all commercially reasonable efforts to cooperate with the Indemnifying Party in a reasonable way and at the Indemnifying Party’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such claim.
13. Limitations of Damages and Liability. IN NO EVENT WILL Tango BE LIABLE for consequential, exemplary, INDIRECT, special, incidental, or punitive damages, INCLUDING FOR ANY LOST DATA REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THESE LIMITATIONS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. The TOTAL AGGREGATE liability of TANGO for any reason and upon any cause of action brought under or associated with this Agreement, will be limited to the amount paid by Subscriber to Tango for the most recent one year period of the Agreement up to the date such liability arose. This limitation applies to all causes of action, including without limitation, those based on breach of contract, breach of warranty, tort (including negligence), and strict liability. THESE LIMITATIONS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. The Parties agree that Tango has set the fees and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
14. General. The relationship created by this Agreement is non-exclusive in all respects. Except where specifically provided, termination of this Agreement will be without prejudice to any other rights that either Party may have at law or in equity. Except for Sections 1.1 and 4, the terms of this Agreement applicable to Subscriber will survive its expiration or termination. Notices will be given in writing and may be delivered by U.S. mail, overnight delivery service, confirmed e-mail, or personal delivery to the intended recipient of the notice at the address noted in the recitals. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. A Party may change a contact upon 10 days’ written notice to the other Party, which notice will contain the new contact information as set forth above. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of such events as, but not limited to, flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Tango’s server, sabotage or criminal interference with the server or Subscription Services or any other causes beyond the control of either Party (a “Force Majeure Event”), the Party experiencing the Force Majeure Event will be excused from performance to the extent that it is prevented, hindered or delayed by such causes. Each Party agrees to give the other notice as soon as possible of the existence of a Force Majeure Event affecting the Party’s performance and to give notice of the termination of the Force Majeure Event and the ability to continue performance under the Agreement. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among Tango, Subscriber or any User. Tango will perform the Services as an independent contractor. Neither Tango nor Subscriber is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement. Tango reserves the right to make visual or functional modifications to the Subscription Services from time to time for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality. Tango reserves the right to make such changes without prior notification to Subscriber. No such change will materially reduce the functionality of the Subscription Service. During the Term and for one year after termination of this Agreement, Subscriber will not solicit for employment, directly or indirectly, or hire the Tango’s employees or independent contractors who were employed or under contract at any time during the Term, without first obtaining the Tango’s prior written consent. This restriction will not apply to employees who respond to a general advertisement for employment issued by Subscriber. Tango has not agreed to and does not agree to treat as confidential any suggestion or idea provided by Subscriber or its Users regarding the Service (“Feedback”), and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Tango’s right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to Subscriber or its Users, or provide Subscriber or any User with any rights in the Services. Feedback does not include Subscriber Data. This Agreement, including the Exhibits and any document incorporated herein by reference, states the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, negotiations and other written or oral communications between the Parties with respect thereto. Terms in Subscriber’s pre-printed purchase orders or order forms will have no force or effect. The Parties agree that if one of them believes that the other has breached or is about to breach this Agreement or Subscriber disputes a Tango charge appearing on a bill, the complaining Party will give immediate written notice to the other of the complaint. The Parties will enter into good faith negotiations for a reasonable resolution of the complaint within 10 business days of the Party’s receipt of the complaining Party’s notice. If the alleged breaching Party is unable to cure the alleged breach or billing dispute to the complaining Party’s reasonable satisfaction, the complaining Party will give the alleged breaching Party a clear and complete written statement of the reasons for such lack of satisfaction, and will provide such Party with 15 days to cure such issue. After such cure period, either Party may then resort to whatever remedy is available at law or equity, subject to the limitations on remedy provided for in this Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the Parties agree that such provision will be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement will remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of the Agreement. Subscriber may not assign its rights and obligations under this Agreement without the prior written permission of Tango. Notwithstanding the foregoing, either Party may assign this Agreement in conjunction with a merger, consolidation, reorganization, sale of all or substantially all of its assets or similar transaction. This Agreement will be binding on each Party’s successors and permitted assigns. This Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Texas without regard to any principle that would require the application of the laws of another jurisdiction. Each Party hereto hereby irrevocably submits to the exclusive jurisdiction of and venue in any federal or state court located within Dallas County, Texas over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action or proceeding related thereto may be heard and determined only and exclusively in such courts. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such dispute brought in such court, and any defense or right to move to dismiss or transfer any action brought in such courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement.