End User License Agreement – Reseller Channel

EULA Last Updated: August 20, 2021

Introduction

This End User License Agreement (this “EULA”) applies by and between Constella Intelligence, Inc. (“Constella”, “we”, or “us”) and the customer/user (the “Customer”, or “you”) who is accessing or using one or more Applications (as defined below) by purchasing through one or more resellers. By accessing or using any Application, you agree to be bound by this EULA. If you do not agree to this EULA, you are not allowed to access or use any Application. The “Effective Date” of this EULA is the date you first access or use any Application.

If you are accessing or using an Application in your capacity as an employee, consultant or agent of the contracting entity, you represent that you are an employee, consultant or agent of that entity, and that you have the authority to bind that entity to this EULA. For the purpose of this EULA, you (and, if applicable, the entity that you represent) will be referred to as “Customer” or “you”.

Constella reserves the right to change or modify this EULA, or any of our other policies or guidelines, at any time upon notice to you. We may provide that notice in a variety of ways, including, without limitation, sending you an email or posting the revised EULA on Constella’s web site and revising the date at the top of this EULA. Any changes or modifications will be effective after we provide notice that this EULA has been modified. You acknowledge that your continued access or use of any Application following such notice constitutes your acceptance of the modified EULA.

This EULA forms a binding agreement between you and Constella.

1.  Definitions

1.1 “Constella Data” means any and all data that is made available to you as a result of your use of or access to the Application.

1.2 “Application” means, individually and collectively, each of the Constella-proprietary applications made available to Customer hereunder. The current list of available Applications is set forth at https://constellaintelligence.com/our-offer.

1.3 “Call Limits” means the limits, if any, set forth in the Order Form regarding the number of seats, tasks, queries or calls that you are authorized to use or make via the applicable Application, and/or the amount of data you are authorized to store on, or transfer to or from, Constella’s servers.

1.4 “Client” means a client of Customer (whether directly or through multiple tiers) to whom Customer is providing products or services that utilize, include, or reference the Constella Data, or any other element of an Application.

1.5 “Customer Data” means any data or other content that you either: (i) publish, upload to, or use in conjunction with an Application; (ii) make available in conjunction with an Application, or (iii) allow an Application to access.

1.6 “Customer Systems” means any of your (or your contractors’ or agents’) computer systems that are used in conjunction with the Application or any Constella Data.

1.7 “Documentation” means any manuals, guides, documentation and other supporting materials related to an Application that Constella makes generally available to our customers. Documentation is considered part of the applicable Application.

1.8 “Fees” means, collectively: (i) the fees that you are required to pay to use and/or access an Application during the applicable Subscription Term, as such fees are reflected on each applicable Order Form; and (ii) the fees that you are required to pay for any Professional Services you engage us to perform, as such fees are reflected on each applicable SOW or Order Form.

1.9 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, trademarks, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.10 The “Order Form” means the form you use to order Application(a) and/or Professional Services from your reseller.

1.11 “Professional Services” means training, consulting, or implementation services that we provide to you pursuant to an Order Form or Statement of Work. Professional Services do not include support, or any Application.

1.12 “Purpose” means the specific purpose(s) for which you are permitted to use each Application, as set forth in the applicable Order Form.

1.13 “Reports” means, collectively, any reports that are created through your use of an Application.

1.14 “Statement of Work” or “SOW” means a mutually executed statement of work detailing the Professional Services we will perform for you, their price, and your related obligations (if any). Upon execution by the parties, each SOW will be subject to this EULA.

1.15 “Subscription Term” means the time period set forth on the Order Form that you will allowed to use the Application. If no time period is set forth on the Order Form, the Subscription Term will be one (1) year from the date of last signature of the Order Form.

1.16 “Third Party Services” means, collectively, any applications, interfaces, software, or services not operated or provided by Constella.

Application

2.1 Access Grant. Subject to your continued compliance with this EULA, Constella grants you a limited, non-transferable, non-exclusive license to access and use each Application that you have ordered in the applicable Order Form for the applicable Subscription Term, solely for the Purpose, and subject to the Call Limits set forth in the Order Form. The Application will be deemed accepted when made to available to Client pursuant to this EULA.

2.2 Restrictions. As between the parties, Constella owns all right, title and interest in and to each Application and the Constella Data, and all Intellectual Property Rights therein. Constella reserves all rights not expressly granted to you in this EULA. You acknowledge and agree that you may not, unless otherwise expressly permitted in this EULA or in the applicable Order Form: (a) modify, disclose, alter, translate or create derivative works of any Application, or any Constella Data; (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of any Application or any Constella Data (or any components thereof); (c) offer any part of an Application or the Constella Data on a timeshare or service bureau basis; (d) allow or permit any third party to access or use an Application or the Constella Data; (e) use an Application to store or transmit any viruses, software routines, or other code designed to permit anyone to access in an unauthorized manner, disable, erase or otherwise harm software, hardware, or data, or to perform any other harmful actions; (f) build a competitive product or service, or copy any features or functions of an Application (including, without limitation, the look-and-feel of an Application) or the Constella Data; (g) interfere with or disrupt the integrity or performance of an Application; (h) publicly disclose to any third party any performance information or analysis relating to an Application; (i) remove, alter or obscure any proprietary notices in or on an Application or any Constella Data, including copyright notices; (j) use an Application, the Constella Data, or any product thereof for any illegal or unauthorized purpose, or in a manner which violates applicable law or regulation; (k) use an Application or the Constella Data for any purpose other than the Purpose set forth in this EULA and the applicable Order Form; (l) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms that make up an Application or any software, documentation, or data relating to an Application, except to the limited extent that applicable law prohibits such a restriction; (m) to the extent that the license provides a specific number of seat licenses, allow multiple users to use the same seat license (notwithstanding the foregoing, you can transfer seat licenses from one use to another); or (n) cause or permit any third party (including, without limitation, any Client) to do any of the foregoing.

2.3 Exceeding Call Limits. If you exceed the Call Limits set forth in an applicable Order Form, Constella may, in its sole discretion and at is option, and in addition to any other rights or remedies available to it at law or in equity: (i) elect to charge Constella’s then-current rates for any overages; or (ii) suspend your use of the Application until the Call Limits are no longer exceeded.

2.4 Right to Modify the Application. You acknowledge that we reserve the right – at any time, and without notice or liability to you – to modify each Application, or any part of it, temporarily or permanently. We may modify an Application for a variety of reasons, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements. We will not modify an Application in any way that materially decreases its features or functionality during the then-current Subscription Term.

2.5 Registration. Promptly after the execution of each Order Form, we will make the Application(s) available to you. You will be required to provide accurate, current and complete information about you as part of the registration process that enables you to access each Application (“Registration Data”). You agree: (i) to maintain the security of your password(s) that you use to access each Application; (ii) to maintain and promptly update your Registration Data (as well as any other information you provide to us) and to keep it accurate, current and complete; (iii) to accept all risks of unauthorized access to your Registration Data, and any other information you provide to us, via your account(s) or password(s); (iv) that you are responsible for maintaining the security of your account and safeguarding your password(s); and (v) that you will be fully responsible for any activities or transactions that take place using your account(s) or password(s).

2.6 Third Party Services (Hunter Application Only). You may elect to access or use one or more Third Party Services in conjunction with your use of the “Hunter” Application. Constella is not responsible for the operation of any Third Party Services, nor the availability or operation of the “Hunter” Application to the extent that you make such availability and/or operation dependent upon the proper functioning of any Third Party Services.  You are solely responsible for procuring any and all rights and licenses necessary for you to access any Third Party Services, and for complying with any applicable terms or conditions thereof.  We do not make any representations or warranties with respect to any Third Party Services, or the providers thereof.  Any exchange of data or other interaction between you and a Third Party Service is at your sole risk, and any such exchange will be governed solely by such the Third Party Services’ terms and conditions.

2.7 Data Processing Amendment; Acceptable Use Policy. The parties agree to the terms of the Data Processing Amendment (the “DPA”), found at https://constellaintelligence.com/support/dpa. You understand and agree that your use of each Application is at all times subject to your compliance with the then-current Acceptable Use Policy (the “AUP”), found at https://constellaintelligence.com/support/aup. The DPA and AUP are hereby incorporated into this Agreement by this reference.

2.8 Support. Provided that you have paid all applicable Fees, we will provide you with support for each Application, as more fully described in and in accordance with the support terms set forth at https://constellaintelligence.com/support (the “Support Terms”). Standard support may be included in the cost of the Application, while premium support may be obtained for an additional fee. To the extent that you are slated to receive support in the relevant Order Form, you will receive such support in accordance with the Support Terms, which are incorporated by reference into this EULA. You will provide us with access to any Customer Systems necessary for us to provide support. For the avoidance of doubt: (i) we will not be liable for any failure to provide support that is due to your failure to provide us with all necessary access to Customer Systems; and (ii) you at all times are and will be responsible for all aspects of any Customer Systems.

2.9 Ownership; Feedback. As between the parties, Constella retains all right, title, and interest in and to each Applications and the Constella Data, and all Intellectual Property Rights therein. We reserve all rights not expressly granted to you in this EULA. You acknowledge that, to the extent that you provide us with any suggestions, comments, or other feedback with respect to any Application or any other Constella product or service (collectively, “Feedback”), you grant us a perpetual, irrevocable, royalty-free, fully paid up, sublicensable right and license to fully exploit such Feedback for any purpose, without restriction.

3. Customer Data. As between the parties, you own your Customer Data. You acknowledge and agree that you are fully responsible for the Customer Data, irrespective of whether you were the original creator of the Customer Data. By making the Customer Data available to us or to the Application, you grant us a worldwide, royalty-free, and non-exclusive license to use, reproduce, modify, adapt and publish the Customer Data for the purpose of providing the Application to you. By making Customer Data available to us or to the Application, you represent and warrant that: (i) the Customer Data does not and will not infringe, violate or misappropriate the Intellectual Property Rights of any third party; (ii) you have obtained all rights and permissions necessary to use the Customer Data in the manner in which you have used it; (iii) the Customer Data does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive code; and (iv) our use of the Customer Data for the purpose of providing the Application does not and will not (a) violate any applicable law or regulation, or (b) infringe, violate, or misappropriate the Intellectual Property Rights of any third party.

4. Government Users. We do not develop any technical data or computer software pursuant to this EULA. The Application and Documentation have been developed solely with private funds, are considered “Commercial Computer Software” and “Commercial Computer Software Documentation” as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and access is provided to U.S. Government end users as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Application or Documentation by the U.S. Government, its end users or contractors is subject to the restrictions set forth in this EULA.

5. Professional Services. From time to time during the term of this EULA, you may order Professional Services from us via an Order Form or an SOW. If an SOW is required to more fully define or detail any Professional Services ordered via an Order Form, the parties will execute an SOW for that purpose (for the sake of clarity, however, the lack of an SOW will in no way impact the validity of Professional Services ordered via an Order Form, or your obligation to pay for those Professional Services). Each SOW will be binding once both parties sign it, and the parties agree that any Professional Services we provide to you (whether pursuant to a SOW or not) will be provided pursuant to this EULA. In the event of any conflict between the terms of this EULA and any SOW, this EULA will control. Provided you comply with the terms of this EULA (including, among other things, paying us the Fees), we will perform the Professional Services described in each SOW, according to the timeframes set forth in that SOW. We will control the manner and means by which the Professional Services are performed, and we reserve the right to determine which personnel we assign to perform Professional Services for you. Provided we remain responsible for all of their acts and omissions, we can use third parties to help us perform the Professional Services. You acknowledge that we retain all right, title and interest in and to anything we use or develop in connection with performing Professional Services for you, including, among other things, software programs, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. To the extent that we deliver anything to you during the course of performing Professional Services (collectively, “Deliverables”), we grant you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to use the Deliverables during the term of this EULA, solely in conjunction with your use of the Application. You may not copy, modify, or otherwise create derivative works of any Deliverables without our prior written consent in each case. To the extent that we provide you with Reports, you may freely use the content of such Reports (even if you are not using an Application), provided that such use is for the Purpose.

6. Payment. You are responsible to pay all applicable Fees and taxes to your reseller. If you do not pay your reseller on time, we reserve the right to suspend or terminate your access to the Application without liability to use.

7. Reserved.
8. Term and Termination.

8.1 Term. This EULA begins on the Effective Date and, unless terminated earlier as provided for herein, will remain in effect for as long as there is a Subscription Term, Order Form, or SOW for Professional Services outstanding.

8.2 No Termination for Convenience. We offer our Applications on an annual subscription basis. With that in mind, you cannot terminate any Order Form for your convenience during the applicable Subscription Term.

8.3 Termination for Cause. Either party can terminate this EULA, any Order Form or SOW for cause immediately upon written notice to the other if the other party breaches any part of this EULA or the applicable Order Form or SOW and fails to cure the breach within thirty (30) days of receiving written notice of it from the non-breaching party. We reserve the right to terminate this EULA or any Order Form or SOW for cause immediately upon written notice to you, and without giving you a cure period, if you breach any of the terms of this EULA relating to our intellectual property (including your compliance with the license/access grant and any license/access restrictions) or our Confidential Information (defined below).

8.4 Right to Suspend Access to Application. Without limiting any of our other rights in this Section 8, we have the right, in our sole discretion, to suspend your ability to access the Application (in whole or in part), without liability, under the following circumstances: (i) for scheduled or emergency maintenance to the Application, or any part thereof; (ii) if we reasonably believe that you are using the Application or the Constella Data in violation of this EULA, the AUP, or applicable law; (iii) if we reasonably believe that your use of the Application poses a security risk to us or to any third party; (iv) if required by law enforcement or government agency, or otherwise in order to comply with applicable law or regulation; (v) if you are using the Application or Constella Data other than for the Purpose; or (vi) if you fail to fulfill your payment obligations hereunder.

8.5 Effect of Termination.

When this EULA or any Order Form or SOW terminates or expires: (i) you will no longer have the right to use or access the Application identified in the terminated/expired Order Form as of the date of termination/expiration; (ii) all licenses we grant you in this EULA or the Order Form, as applicable, will immediately cease to exist as of the date of termination/expiration; (iii) except as otherwise set forth in Section 8.6 below, we may delete your Customer Data, and we will not be responsible or liable to you if you are unable to access or recover your Customer Data following termination/expiration; and (iv) each of us will promptly return to the other (or, if the other party requests it, destroy) all Confidential Information belonging to the other. Sections 1, 2.2, 2.9, 6, 8.5, 8.6, 9.2, and 10 through 14 will survive the termination or expiration of this EULA for any reason.

8.6 Data Retention. You may request the destruction of Customer Data in our possession or control, provided that you provide us with formal written notice of such request within ninety (90) days of the termination or expiration of this EULA, and further provided that you promptly respond to our requests for additional information relating thereto. At the conclusion of this ninety (90) day period, Constella may, at its sole discretion, elect to destroy the Customer Data. In the event that you make a request of us pursuant to this Section 8.6, we will use our reasonable efforts to comply with the request within five (5) business days of receiving it, and we will confirm once the Customer Data has been destroyed.

9. Limited Warranty; Disclaimer.

9.1 Limited Warranty. Constella represents and warrants solely to you that: (i) Constella has the power and authority to enter into this EULA and to perform its obligations hereunder; (ii) Constella’s performance under this EULA will not conflict with obligations it has to any third party; (iii) Constella has the right to provide access to the Application(s) and the Constella Data as provided herein; and (iv) Constella will provide support pursuant to this EULA in a professional and workmanlike manner.

9.2 Disclaimer. THE LIMITED WARRANTIES SET FORTH ABOVE ARE THE ONLY WARRANTIES WE MAKE WITH RESPECT TO EACH APPLICATION, THE CONSTELLA DATA, THE SUPPORT, AND THE PROFESSIONAL SERVICES. YOU ACKNOWLEDGE THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, EACH APPLICATION, THE CONSTELLA DATA, SUPPORT, AND PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND THAT YOUR USE OF EACH APPLICATION, THE CONSTELLA DATA, SUPPORT, AND THE PROFESSIONAL SERVICES ARE AT YOUR SOLE RISK. CONSTELLA DOES NOT WARRANT: (I) THAT ANY APPLICATION, THE CONSTELLA DATA, SUPPORT, OR PROFESSIONAL SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, (II) THAT ANY APPLICATION, THE CONSTELLA DATA, SUPPORT, OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY APPLICATION, THE CONSTELLA DATA, SUPPORT, OR THE PROFESSIONAL SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT YOU PURCHASE OR OBTAIN THROUGH ANY APPLICATION, SUPPORT, THE CONSTELLA DATA, OR PROFESSIONAL SERVICES WILL MEET YOUR EXPECTATIONS, OR (V) THAT ANY ERRORS IN ANY APPLICATION, SUPPORT THE CONSTELLA DATA, OR PROFESSIONAL SERVICES WILL BE CORRECTED. CONSTELLA SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

10. Indemnification.

10.1 Constella Indemnity. Constella agrees to defend (or settle, at Constella’s option and expense), indemnify and hold Customer (and its directors, officers, employees, consultants and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (whether at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and reasonable expenses (including, without limitation, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of or relating to any third-party claim brought against Customer to the extent that it is based on an allegation that Customer’s use of the Application as permitted under this EULA infringes a U.S. patent or copyright or misappropriates a trade secret of any third party (each, a “Claim”), provided that Customer notifies Constella in writing of any such Claim as soon as reasonably practicable and allows Constella to control, and reasonably cooperates with Constella in the defense of, any such Claim and related settlement negotiations. Constella will have no obligation to indemnify Customer for any Claim that is based upon (i) the modification of the Application or the Constella Data, unless Constella or its designee were the ones who made the modifications; (ii) Customer’s use of the Application or the Constella Data other than as authorized by this EULA, the Order Form, or the applicable Documentation; or (iii) the combination, operation or use of the Application or the Constella Data with equipment, devices, software, systems, or data that Constella did not supply or authorize in writing, unless the Claim would have arisen irrespective of such combination, operation, or use. If Customer’s use of the Application is, or in Constella’s reasonable opinion is likely to be, subject to a Claim under this Section 10.1, Constella may, at its sole option and at no charge to Customer (and in addition to Constella’s indemnity obligation to Customer in this Section 10.1): (i) procure for Customer the right to continue using the Application; (ii) replace or modify the Application so that it is non-infringing; or (iii) if options (i) and (ii) above are not commercially practicable in Constella’s reasonable estimation, Constella may terminate this EULA and/or all affected Order Forms (in which event, Customer will immediately stop using the affected Application) and refund any pro-rata portion of the prepaid Fees that Customer paid to Constella for the then-current Subscription Term for each terminated Order Form. THIS SECTION 10.1 SETS FORTH CONSTELLA’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

10.2 Customer Indemnity. Except to the extent that Constella owes an indemnity to Customer pursuant to Section 10.1 above, Customer agrees, at its sole expense, to defend, indemnify and hold Constella (and its directors, officers, employees, consultants and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (whether at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of or relating to (i) the Customer Data; (ii) Customer’s use of the Application, the Constella Data, or any Professional Services; (iii) Customer’s failure to pay any taxes owed under this EULA; (iv) Customer’s provision of products or services to any Client; (v) Customer’s breach of the AUP; (vi) Customer’s breach of any applicable law or regulation; and (vii) any other actual or alleged breach of any of Customer’s obligations under this EULA. Customer will not settle any such claim in any manner that would require Constella to pay money or admit wrongdoing of any kind without Constella’s prior written consent, which Constella may withhold in its sole discretion.

11. Limitation of Liability

11.1 Limitation of Total Liability. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL CONSTELLA’S TOTAL, AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS EULA OR YOUR USE OF (OR INABILITY TO USE) ANY PART OF ANY APPLICATION, THE CONSTELLA DATA, OR THE PROFESSIONAL SERVICES EXCEED THE TOTAL AMOUNT OF FEES YOU ACTUALLY PAID UNDER THE AFFECTED ORDER FORM DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.

11.2 Waiver of Consequential Damages. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, IN NO EVENT WILL CONSTELLA BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THIS EULA OR YOUR USE (OR INABILITY TO USE) ANY PART OF ANY APPLICATION, THE CONSTELLA DATA, OR THE PROFESSIONAL SERVICES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF CONSTELLA HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

11.3 Basis of Bargain. THIS SECTION (LIMITATION OF LIABILITY) WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THIS EULA IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

12. Confidential Information.
12.1 Definition. For the purposes of this EULA, “Confidential Information” means any technical or business information disclosed by one party to the other that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of disclosure; (ii) if disclosed orally, is identified as confidential or proprietary at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days of the disclosure; or (iii) irrespective of the manner of disclosure, which the receiving party should reasonably understand to be confidential or proprietary to the disclosing party. For the purposes of this EULA, you agree that the Feedback, any Deliverables we provide to you, and any non-public elements of each Application (including, without limitation, the source code of any Constella-proprietary software), will be deemed to be Constella’s Confidential Information, regardless of whether it is marked as such. Customer Data will be considered Customer’s Confidential Information, regardless of whether it is marked as such.

12.2 Restrictions on Use and Disclosure. Neither of us will use the other party’s Confidential Information, except as permitted under this EULA. Each of us agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as it uses for its own information of a similar nature, but in all events at least a reasonable degree of care. Each of us agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other party’s Confidential Information, including, without limitation, disclosing Confidential Information only to its employees, independent contractors, consultants, and legal and financial advisors (collectively, “Representatives”): (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 12, and (iii) who are informed of the nondisclosure obligations imposed by this Section 12. Each party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement.
12.3 Exclusions. The restrictions set forth in Section 12.2 will not apply with respect to any Confidential Information that: (i) was or becomes publicly known through no fault of the receiving party; (ii) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (iii) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (iv) the receiving party independently develops without access to or use of the other party’s Confidential Information.

13. Trademarks. You acknowledge and agree that any Constella names, trademarks, service marks, logos, trade dress, or other branding included as part of the Application or on our website(s) (collectively, the “Marks”) are owned by Constella and may not be copied, imitated, or used (in whole or in part) without Constella’s prior written consent. All other trademarks, names, or logos referenced as part of the Application or on our website(s) (collectively, “Third-Party Trademarks”) are the property of their respective owners, and the use of such Third-Party Trademarks inure to the benefit of their respective owners. The use of such Third-Party Trademarks is intended to denote interoperability, and does not constitute an affiliation by Constella or its licensors with any company or an endorsement or approval by that company of Constella, its licensors, or their respective products or services. At no time during or after the term of this EULA will Customer challenge or assist others to challenge any Marks or the registration thereof, or register or attempt to register any marks or trade names that are confusingly similar to those of Constella.

14. General Provisions.

14.1 Entire Agreement; Amendments; No Other Terms. This EULA, including each link referenced herein, along with each Exhibit and mutually-executed Order Form and SOW, constitutes the complete and exclusive understanding of the parties with respect to its subject matter, and supersedes all previous or contemporaneous agreements or communications, whether written or oral, relating to its subject matter. As noted above, Constella reserves the right to change or modify this EULA, or any of our other policies or guidelines, at any time upon notice to you. This EULA is the only agreement between us, and the terms of any purchase order, written terms or conditions, or other document that you send to us that contains terms that are different from, in conflict with, or in addition to the terms of this EULA are hereby rejected by Constella, and will be void and of no effect.

14.2 Governing Law and Jurisdiction. This EULA will be governed by and construed in accordance with the laws of the State of California, without regard to that State’s conflict of law principles. Any legal action or proceeding arising under, related to or connected with this EULA will be brought exclusively in the federal (if they have jurisdiction) or state courts located in Santa Clara County, California, and the parties irrevocably consent to the personal jurisdiction and venue of such court(s). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this EULA. If a party initiates any proceeding regarding this EULA, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs.

14.3 Assignment. Neither party may assign this EULA, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without such consent will be void and of no effect. Notwithstanding the foregoing, however, each party may assign this EULA in its entirety, upon written notice but without the requirement to obtain consent, to an affiliate of that party or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of that party’s business or assets. Subject to the foregoing, this EULA will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

14.4 Controlling Language. The original version of this Agreement is drawn up in English, and the English version of this Agreement shall prevail in the event of any conflict with any version of this Agreement or portion thereof that has been translated into another language (including Spanish).

14.5 Miscellaneous. Except as expressly set forth in this EULA, the exercise by either party of any of its remedies will be without prejudice to its other remedies under this EULA or otherwise. The failure by a party to enforce any part of this EULA will not constitute a waiver of future enforcement of that or any other provision. Any waiver of any provision of this EULA will be effective only if in writing and signed by an authorized representative of the waiving party. You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of each Application and the Constella Data, including, without limitation, all applicable data privacy, security, and export control laws and regulations. If any portion of this EULA is held to be unenforceable or invalid, that portion will be enforced to the maximum extent possible, and all other provisions will remain in full force and effect. Except for payments due under this Agreement, neither party will be responsible for any delay or failure to perform that is attributable in whole or in part to any cause beyond its reasonable control. The parties are independent contractors with respect to the subject matter of this EULA. Nothing contained in this EULA will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither party can bind the other contractually.