Customer Agreement Terms of Use

Aterio Canada Product Terms of Use by and between Aterio and Customer,

Effective as of March 01, 2024.

Aterio Canada, Inc., a British Columbia corporation (“Aterio”), makes the Products described herein available to you (the “Customer”) on the terms and conditions set forth in these Terms of Use (these “Terms”). These Terms are a legally binding contract between Customer and Aterio. Customer must agree to these Terms before Customer may use the Products. If Customer does not agree to all of the terms and conditions set forth in these Terms, Customer may not use the Products. These Terms will apply, and Customer will be deemed to have accepted these Terms, to the extent they are incorporated by reference into an Order mutually executed and agreed to by both Customer and Aterio, on the Effective Date set forth therein.

For the purposes of these Terms, Aterio “Products” means any data set that Aterio has created or compiled, and related products and services licensed or sold to Customer. “Licensed Materials” means any third-party intellectual property for which Aterio has obtained a proper license and that may be incorporated into and offered within the Products.

The Customer and Aterio, each of whom may hereinafter be referred to as a “Party”, and collectively as the “Parties” hereby agree as follows:

License Grants.
1. Aterio Products License. Subject to the terms and conditions of these Terms and any Order, including, but not limited to, Customer’s timely and complete payment to Aterio of all applicable fees, Aterio grants to Customer a limited, non-exclusive, non-sublicensable and non-transferable license during the applicable Term to access and use the data Products in accordance with the following rights and licenses (unless such a license is expressly excluded or modified in a given Order):
  1. a limited, non-exclusive, non-sub-licensable and non-transferable license during the applicable Term to access and use the data Products set forth in the given Order, as applicable, for Customer’s internal business purposes;
  2. a limited, non-exclusive, non-sub-licensable and non-transferable license during the applicable Term to: (A) copy, store and use the data Products during the applicable Term (i) for Customer’s internal business purposes, and/or (ii) to create Customer reports and other derivatives, and/or (B) copy, store, use and make available to Customer’s end customers the Customer reports incorporating, making available and/or displaying data Products or Customer’s derivatives thereto during the applicable Term.
2. Reservations. All rights not expressly granted to Customer under these Terms are expressly reserved to Aterio.
Restrictions. Notwithstanding anything to the contrary contained herein, except as expressly permitted herein or otherwise set forth in a given Order, Customer will not (and if applicable, will ensure that its agents and employees do not), directly or indirectly:
1. use the Products or Licensed Materials or any underlying data comprising or incorporated into the same for any purpose other than internal business purposes and/or to create, copy, store, use and make available Customer reports as set forth herein;
2. use the Products or Licensed Materials to analyze, review or obtain information regarding the functionality, features, content, materials or individual elements of the Products or Licensed Materials, whether for commercial purposes or otherwise;
3. derive, mine, extract, scrape and/or store any Licensed Materials for purposes of developing a database of information for any owned or third party software, technology, product or service, except as authorized herein;
4. provide its credentials or access passwords to the Products to any Person (other than Customer’s direct officers, managers, directors, employees, contractors and agents);
5. modify, merge, decompile, disassemble, scrape, translate, decode or reverse engineer any portion of the Products or Licensed Materials, or technology used by Aterio to deliver the Products for any purpose (including, without limitation, to discover or directly access the source code, analytics, algorithms, methodologies or other know-how of the Products, Licensed Materials or any component or portion thereof), or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of the Products, Licensed Materials, or other technology of Aterio or the data generated thereby;
6. use, reproduce, compile, disclose, publish, display, distribute, transmit or make available any portion of the Products or Licensed Materials or technology of Aterio or the data generated thereby for the purpose of selling or licensing the same on a stand-alone basis or otherwise (including without limitation by “white labeling” Products or Licensed Materials, or promoting or supplying the Products or Licensed Materials under any brand or trademark other than the Aterio); (ii) make any portion of the Products or Licensed Materials publicly available except as expressly authorized herein;
Fees and Payment. The following invoice and payment terms apply to Customer’s use and license of the data Products and Licensed Materials (for purposes of the invoice and payment terms set forth in this Section 3, the Products and Licensed Materials are collectively referred to as the “Products”). In the event of any conflict between these invoice and payment terms and the terms of any Order, these invoice and payment terms will govern unless expressly set forth in the given Order.
1. **Fees and Charges. **
  1. Annual Subscription: Aterio will charge Customer annually in advance for any Products licensed on an annual subscription basis unless and until Customer or Aterio cancels/terminates the Product subscription.
2. Invoices; Payments. Customer will be invoiced yearly or as otherwise set forth in a given Order. Payment for all amounts is due upon receipt of the invoice delivered to the Customer.
3. Delinquent Payments. Any payments not received when due will be considered delinquent and subject to interest accrual at a rate of one percent (1%) per month (12% per annum) or the highest amount allowed by law, whichever is lower. Interest on delinquent payments will accrue from the date due until paid. Aterio may terminate or suspend Customer’s account for any failure to timely pay any amounts as set forth and subject to these Terms.
4. No Returns, Credits or Refunds. CUSTOMER UNDERSTANDS AND AGREES THAT PAYMENTS ARE NONREFUNDABLE. ATERIO IS NOT OBLIGATED, AND CUSTOMER IS NOT ENTITLED AND HEREBY WAIVES ANY RIGHT, TO ANY CREDIT, REFUND, PRICE ADJUSTMENT OR ANY OTHER DISCOUNT, COMPENSATION OR RECOMPENSE FOR ANY PARTIALLY USED PRODUCTS (E.G., SUBSCRIPTIONS NOT USED OR TRANSACTIONAL PRODUCTS NOT DOWNLOADED OR FULLY VIEWED). Although not required or obligated, Aterio reserves the right to evaluate or elect to provide credits, refunds, price adjustments or other discounts, compensation or recompense, from time to time, and at any time, in its sole and absolute discretion; provided that any such elections to offer any such credits, refund, price adjustments or other discounts, compensation or recompense in one instance does not entitle Customer to the same or any such benefit in the future for similar or unrelated instances, nor does it create any obligation whatsoever for Aterio to offer such benefit to Customer or any other user in connection with any past, present, or future requests under any circumstance whatsoever. Any amounts refunded in the form of credits, cash payments or any other form shall be inclusive of all applicable taxes, fees and surcharges that were originally paid on such amounts. Credit amounts that do not represent a refund of, or a discount to, the price paid for any good or service will not result in the refund of any tax, fee, or surcharge previously paid. ATERIO IS NOT RESPONSIBLE FOR CUSTOMER’S FAILURE TO PROPERLY CANCEL A SUBSCRIPTION AND ATERIO DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIOD.
Delivery.
1. Delivery. Aterio shall make the applicable data Products and Licensed Materials available via Data Marketplaces, XML, FTP, API or such other medium made available by Aterio from time to time.
Intellectual Property.
1. Aterio Intellectual Property. As between Aterio and Customer, Aterio exclusively owns and at all times retains all right, title and interest in and to the Aterio Intellectual Property. “Aterio Intellectual Property” means works of authorship, inventions, designs, and identifying marks, including but not limited to copyrights, trademarks, patents, trade secrets, and proprietary software created by Aterio. Customer will not claim for itself or for any third parties any rights, title, interest or licenses to the Aterio Intellectual Property, except for the licenses expressly set forth herein. Customer further acknowledges that, as between the Parties, any derivative works, improvements, modifications, feedback, ideas or suggestions made by Aterio with respect to the Aterio Intellectual Property are, and shall at all times be, the property of Aterio, with all right, title and interest therein. Customer hereby assigns to Aterio all right, title and interest that Customer may have in and to any feedback, ideas, or suggestions on the Aterio Products provided by Customer directly to Aterio.
Confidentiality.
1. Confidentiality Obligations. From and after the date Customer accesses the Products, each Party receiving Confidential Information (the “Receiving Party”) of the other Party (the “Disclosing Party”) shall: (i) treat such Confidential Information as the confidential property of the Disclosing Party and be responsible for any breach of the terms hereof by itself or any authorized Person who receives Confidential Information of the Disclosing Party on its behalf; (ii) not use the Confidential Information except as permitted under these Terms; (iii) not disclose or otherwise make available the Confidential Information of the Disclosing Party to any third party (except as authorized herein and other than to such Party’s employees or independent contractors who (A) have a need to know such Confidential Information, (B) have been advised of the confidential nature of such information and the obligations that apply to them in connection therewith and (C) are subject to obligations of confidentiality with respect to such information as stringent as those set forth herein); and (iv) maintain the confidentiality of the Confidential Information of the Disclosing Party as it would its own most highly confidential information, but in no event shall the Receiving Party use less than reasonable care.
2. Confidential Information. “Confidential Information” means, with respect to a given Party, such Party’s formulas, methods, know how, processes, designs, new products, developmental work, marketing requirements, business and marketing plans, customer names, prospective customer names, the terms and pricing under these Terms or any Order, any data relating to any research project, work in process, engineering, manufacturing, marketing, servicing, financing or personnel matter, data relating to such Party’s present or future products, sales, suppliers, clients, customers, employees, investors or business partners (including any confidential information of such suppliers, clients, customers, employees, investors or business partners) and all information clearly identified in writing at the time of disclosure as “confidential”, and in the case of Aterio, the Products, API and the Licensed Materials shall be deemed the Confidential Information of Aterio. Confidential Information does not include information that: (i) was or is in the public domain prior to the date of disclosure; (ii) was or is lawfully received by the Receiving Party from a third party who is not subject to an obligation of confidentiality with respect to such information; (iii) was or is already known by or in the possession of the Receiving Party; or (iv) is required to be disclosed under applicable law or by a governmental or court order, decree, regulation or rule, provided that the Receiving Party gives written notice to the Disclosing Party to the extent legally permissible prior to disclosure.
**Representations and Warranties; Indemnities; Disclaimers. **
1. Representations and Warranties.
  1. Customer represents and warrants to Aterio that (A) Customer’s responsibilities, promises and negative covenants herein will be fully complied with and rendered in accordance with all requirements identified in these Terms; and (B) Customer has the authority to enter into and perform its obligations under these Terms and to grant the rights set forth herein.
  2. Aterio represents and warrants to Customer that (A) Aterio’s responsibilities, promises and negative covenants herein will be fully complied with and rendered in accordance with all requirements identified in these Terms; and (B) Aterio has the authority to enter into and perform its obligations under these Terms and to grant the rights set forth herein; and (C) the Aterio Intellectual Property to the best of Aterio’s knowledge does not infringe the copyrights, trademarks, trade secrets or patents of any third party.
2. Indemnity.
  1. Customer shall indemnify, defend and hold harmless Aterio and its parent entities and its Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns (the “Aterio Indemnified Parties”) against any and all claims (alleged or actual), damages, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and attorneys’ fees) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) Customer’s breach of any representation or warranty, or any of its obligations, under these Terms or any Order; (ii) any gross negligence or willful misconduct by Customer; or (iii) any infringement of third-party intellectual property rights arising from Customer's use of the Products in a manner not authorized by these Terms or any Order.
  2. Aterio shall indemnify, defend and hold harmless Customer and its parent entities and its Affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns against any and all claims (alleged or actual), damages, liabilities, losses, charges, obligations, demands, suits at law or in equity, proceedings, violations, penalties, costs and expenses (including, without limitation, investigation costs, expert costs, and attorneys’ fees) raised by a third party and incurred by the foregoing in connection with, arising out of, or in any way related to (i) Aterio’s breach of any representation or warranty, or any of its obligations, under these Terms or any Order; or (ii) any gross negligence or willful misconduct by Aterio; or (iii) any infringement of third-party intellectual property rights arising from Customer's use of the Products in a manner authorized by these Terms or any Order.
  3. The party claiming indemnification pursuant to this Section 7.b. (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) of any such claim of which it becomes aware and shall: (i) at the Indemnifying Party’s expense, provide reasonable cooperation to the Indemnifying Party in connection with the defense or settlement of any such claim, and (ii) at the Indemnified Party’s expense, be entitled to participate in the defense of any such claim.
  4. The Indemnified Party agrees that the Indemnifying Party shall have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party shall not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party’s rights or interests without the prior written consent of the Indemnified Party.
  5. If Aterio is the Indemnifying Party and any claim for indemnification relates to the alleged infringement by the Products or Licensed Materials of any third party intellectual property right, Aterio may, at its sole discretion and at its own expense, (i) procure for Customer the right to continue using the Products and Licensed Materials consistent with these Terms, (ii) modify the Products or Licensed Materials so that they become non-infringing, or (iii) immediately terminate these Terms or any given Order.
  6. Notwithstanding any other provision of this Section 7, Aterio will have no liability or indemnity obligations for any claim arising (i) from Customer’s alleged breach of a contractual obligation to any third party, whether express, implied or quasi contractual; (ii) from any modifications or customizations of the Products or any Licensed Materials other than by Aterio; or (iii) from any non-compliance by Customer with applicable law, regulations and standards. Notwithstanding any other provision of this Section 7, Customer will have no liability or indemnity obligations for any claim arising (A) from Aterio’s or any of the Aterio Indemnified Parties' alleged breach of a contractual obligation to any third party, whether express, implied or quasi contractual; or (B) from any non-compliance by Aterio or any of the Aterio Indemnified Parties with applicable law, regulations and standards.
3. **Disclaimer of Warranties. **
  1. EXCEPT AS OTHERWISE EXPRESS SET FORTH HEREIN, THE PRODUCTS, API AND LICENSED MATERIALS ARE PROVIDED “AS-IS” AND WITHOUT ANY OTHER EXPRESSED OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. ATERIO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, API, LICENSED MATERIALS, OR THE INFORMATION THEREIN, OR THE OPERATION OR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS OR COMPREHENSIVENESS. ATERIO HEREBY EXCLUDES ALL IMPLIED WARRANTIES AND CONDITIONS TO THE EXTENT PERMITTED BY LAW. ATERIO HEREBY EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. ATERIO DOES NOT WARRANT THAT THE PRODUCTS, API OR LICENSED MATERIALS WILL MEET ALL OF CUSTOMER’S BUSINESS REQUIREMENTS, OR THAT THE OPERATION OF THE PRODUCTS OR API WILL BE UNINTERRUPTED OR ERROR FREE.
  2. Customer acknowledges and agrees that the source data, and other information contained in the Licensed Materials are subject to market availability. Aterio uses or has used public and/or confidential data and assumptions provided to Aterio by Customer or other third parties. Changes in the underlying data or operating assumptions, or any loss of access to any one or more sources may impact the analyses and forecasts.
**Limitation of Liability. **
1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, OR STRICT LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, DATA OR GOODWILL, REGARDLESS OF WHETHER SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS, OR FOR ANY LOST DATA OR CONTENT CAUSED BY ITS RESPECTIVE PRODUCTS, SERVICES OR SOFTWARE.
2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL A PARTY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES UNDER THESE TERMS OR ANY GIVEN ORDER (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) EXCEED THE AMOUNT PAID BY CUSTOMER TO ATERIO UNDER THE ORDER PURSUANT TO WHICH THE GIVEN CLAIM AROSE DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO THE GIVEN CLAIM, PROVIDED, HOWEVER, THAT IN NO EVENT SHALL THE LIMITATION SET FORTH HEREIN LIMIT A PARTY’S RIGHT TO OBTAIN EQUITABLE RELIEF AGAINST THE OTHER PARTY.
Compliance with Applicable Laws. Each of Aterio and Customer shall comply with all applicable federal, state, county and local laws, rules, ordinances, regulations, and codes, including those governing privacy, data protection, fair information practices, public records, marketing to consumers, and consumers’ rights to privacy, in connection with its use of the Licensed Materials or otherwise.
**Term and Termination. **
1. Term. The term of any subscription or of a given Order will be as set forth in the Order. Except as may be set forth in the given Order:
  1. Each Order shall commence on the effective date set forth therein (the “Effective Date”) and shall continue in full force and effect until one (1) year from the Effective Date (the “Initial Term”) unless otherwise terminated as described in this section;
  2. Following the Initial Term, the Order shall automatically renew for additional one (1) year terms (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party thereto provides notice of its intent not to renew no later than thirty (30) days prior to the end of the then-effective Term.
2. Termination for Breach.
  1. Termination by Aterio. If Customer breaches any material term or condition of a given Order or these Terms, including, without limitation, its payment obligations thereunder, Customer will have thirty (30) days (or five (5) days, in the case of any breach of its payment obligations thereunder) after the delivery of written notice by Aterio to cure the breach (if such breach is curable). If such breach is not cured within such thirty (30) day period (or five (5) day period, as applicable), or is not curable, or if any bankruptcy or insolvency proceeding is instituted against Customer and not dismissed within sixty (60) days, Aterio will have the right (but not the obligation) to terminate the applicable Order and/or these Terms.
  2. Termination by Customer. If Aterio breaches any material term or condition of a given Order or these Terms, including, without limitation, ceasing to provide or adequately deliver the Products to Customer as set forth herein, Aterio will have thirty (30) days after the delivery of written notice by Customer to cure the breach (if such breach is curable). If such breach is not cured within such thirty (30) day period, or is not curable, or if Aterio becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against Aterio and not dismissed within sixty (60) days, Customer will have the right (but not the obligation) to terminate the applicable Order and/or these Terms.
3. Additional Rights of Aterio to Suspend or Terminate. Without limiting the provisions of Section 10.b., Customer’s access to the Products may be suspended or terminated for conduct that Aterio reasonably and credibly believes (a) is illegal, fraudulent, harassing, abusive, or intended to intimidate or threaten; or (b) constitutes a violation of any law, regulation, or tariff (including, without limitation, copyright and intellectual property laws). or (c) Customer is a competitor of Aterio by reason of Customer’s acquisition of, or acquisition by, any party Aterio reasonably deems a competitor of Aterio.
Miscellaneous.
1. Governing Law; Venue. These Terms and each Order shall be governed by the laws of the province of British Columbia and the laws of Canada applicable therein, without reference to principles of conflicts of laws, and courts in Vancouver, British Columbia, will have exclusive jurisdiction to hear any proceedings related to this Agreement and to which the parties irrevocably attorn to the jurisdiction of.
2. Entire Agreement; Amendment. These Terms, along with any applicable Order, are the entire agreement between Customer and Aterio pertaining to the Products and supersedes any prior agreements, discussions, representations or warranties, written or oral, relating to the Products. Notwithstanding the foregoing, Aterio is not bound by any provision of any correspondence. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of these Terms and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby.
3. Assignment. Neither party may assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign its rights or delegate its obligations, in whole or in part, to (i) one or more of its affiliates, or (ii) an entity that acquires all or substantially all of the business or assets of such Party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise, without such consent, so long as the assignee is not a competitor of the other party (in which case the prior written consent of the other party shall be required). Any purported assignment, transfer, or delegation in violation of this section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. These Terms and any applicable Orders are binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
4. Waiver. The failure of a party to assert or enforce any right contained in these Terms will not constitute a waiver of that right.
5. Independent Contractors. The Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in these Terms shall be interpreted as constituting either Party the joint venturer, employee or partner of the other Party or as conferring upon either Party the power of authority to bind the other Party in any transaction with third parties.
6. Severability. To the extent any section, clause, provision or sentence or part thereof of these Terms is determined to be illegal, invalid or unenforceable by competent authority in any jurisdiction then such portion will be severed and the remainder of these Terms given full force and effect to the extent permissible under applicable law.