Welcome to the Semanttic Inc (“Semanttic”, “us”, “we”, or “our”) website. Please read these Terms of Service (the “Terms”) carefully because they govern your use of our service. Semanttic provides a suite of products designed to allow users to create and edit designs, files, and projects collaboratively. This Software Services Agreement (“Software Agreement”) and the applicable Order Form(s) (collectively, the “Agreement”) govern Customer’s use of the Semanttic Platform. If the parties have executed a data processing addendum, that addendum is incorporated into this Software Agreement by reference and forms part of the Agreement. Capitalized terms used but not defined herein are defined in Exhibit A.
2.1. License. Subject to the terms and conditions of the Agreement, Semanttic hereby grants Customer a limited, non-exclusive, non-transferable (subject to Section 10.5), non-sublicensable license in the Territory, during the Order Term, for Authorized Users to access and use the Semanttic Platform in connection with Customer’s and its Affiliates’ internal business purposes.
2.2. Semanttic Security Standards. Semanttic will comply with the security requirements set forth in Exhibit C.
3.1. Use Restrictions. Except as otherwise expressly authorized in the Agreement, Customer will not, will ensure its Authorized Users do not, and will not encourage or assist third parties to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms relevant to the Semanttic Platform (except to the extent that such a restriction is impermissible under applicable law); (ii) provide, sell, resell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Semanttic Platform; (iii) copy, modify, create derivative works of, or remove proprietary notices from the Semanttic Platform; or (iv) use the Semanttic Platform for personal or other non-commercial purposes.
3.2. Acceptable Use Policy. Customer will comply with, and will ensure its Authorized Users comply with, Semanttic’s Acceptable Use Policy available at https://app.semanttic.com/acceptable-use-policy/.
3.3. Authorized Users; Accounts. As part of the registration process, Customer will identify an administrative username and password for Customer’s Semanttic account. Customer represents and warrants that all registration information, including with respect to the list of domains owned or controlled by Customer for purposes of domain capture, Customer provides is truthful, accurate, and complete, and that Customer will maintain the accuracy of such information. Customer is responsible and liable for maintaining control over Customer’s account, including the confidentiality of Customer’s username and password. Customer will ensure that its Affiliates and all Authorized Users using the Semanttic Platform under its account comply with all of Customer’s obligations under the Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer. Semanttic supports logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Semanttic Platform. Therefore, Semanttic will not be responsible for any damages, losses, or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses, or liability would have been prevented by the use of 2FA.
3.4. Feedback. To the extent that Customer gives Semanttic feedback, comments, or suggestions concerning the Semanttic Platform or other services provided by Semanttic (collectively, “Feedback”), Customer hereby grants Semanttic a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, fully paid license to use and exploit the Feedback without payment, attribution, or restriction. The portions of Feedback that are about the Semanttic Platform and do not identify Customer will not be considered Customer’s Confidential Information.
3.5. Usage Data. Semanttic will have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Semanttic Platform, and related systems and technologies, and Semanttic will be free (during and after the Order Term) to use such data and information in a de-identified and aggregated form to maintain, improve, and enhance Semanttic’s products and services.
3.6. Reservation of Rights. As between the parties, Semanttic owns all right, title, and interest in the Semanttic Platform, and Customer owns all right, title, and interest in the Customer Materials. Except as expressly set forth in the Agreement, each party retains all right, title, and interest in and to its intellectual property rights. All rights not expressly granted are reserved, and no license, covenant, immunity, transfer, authorization, or other right will be implied, by reason of statute, estoppel, or otherwise, under the Agreement.
4.1. Fees. Customer will pay Semanttic all fees described in an Order in accordance with the terms therein (the “Fees”). Unless otherwise specified in an Order, all Fees are stated and solely payable in Euros. All Fees are non-cancelable and non-refundable (except as otherwise expressly set forth in this Software Agreement), and are not subject to setoff. Customer is solely responsible for any bank fees, interest charges, finance charges, overdraft charges, and any other fees Customer incurs as a result of the charges billed by us. If the Order renews, Semanttic may change the fees applicable to a renewed Order Term by providing Customer with at least 45 days’ written notice of the new fees before the end of the then-current Order Term. For clarity, any change in fees will not apply to the then-current Order Term.
4.2. Payment. Unless otherwise specified in an Order, (a) Customer will be invoiced annually in advance and thereafter according to the true-up process described in an Order, and (b) full payment is due 30 days from the date of the applicable invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. In the event that Customer fails to pay the full amount owed under an Order, Semanttic may limit Customer’s access to the Semanttic Platform, in addition to any other rights or remedies Semanttic may have.
4.3. Taxes. The Fees do not include taxes. Each party is responsible for the payment of all taxes (including any interest and penalties) in connection with the Agreement that are imposed on that party by law. For Customer, such taxes may include, but are not limited to, sales/use, gross receipts, value-added, GST, personal property, excise, consumption and other similar taxes or duties. Each party will be responsible for its own income taxes, employment taxes, and real property taxes.
4.4. Withholding. All payments made by Customer to Semanttic under the Agreement will exclude any deduction or withholding. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required by law, Customer will pay such additional amounts as are necessary so that the net amount received by Semanttic after such deduction or withholding will be equal to the full amount that Semanttic would have received if no deduction or withholding had been required. Each party will use commercially reasonable efforts to work with the other party to help obtain, reduce, or eliminate any necessary withholding, deduction, or royalty tax exemptions where applicable.
5.1. Confidential Information. Each party (the “Discloser”) has disclosed or may disclose proprietary or non-public business, technical, financial, or other information in anticipation of the Agreement or during the term of the Agreement (“Confidential Information”) to the other party (the “Recipient”). Confidential Information of Semanttic expressly includes non-public information regarding features, functionality, and performance of the Semanttic Platform, and Confidential Information of the Customer expressly includes Customer Materials. However, Confidential Information excludes any information that: (a) is or becomes generally available to the public without action or omission by Recipient; (b) was in the Recipient’s possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to the Recipient without restriction by a third party; or (d) was independently developed by Recipient without use of or reference to any Confidential Information of the Discloser.
5.2. Obligations. The Recipient will use the Discloser’s Confidential Information only to exercise its rights and fulfill its obligations under the Agreement, including, in Semanttic’s case, to provide the Semanttic Platform to Customer. The Recipient will use reasonable care to protect against disclosure of the Discloser’s Confidential Information to parties other than the Recipient’s employees, contractors, Affiliates, agents, or professional advisors (“Representatives”) who need to know it and who have a legal obligation to keep it confidential. The Recipient will ensure that its Representatives are subject to no less restrictive confidentiality obligations than those herein. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information: (a) if directed by Discloser; or (b) to the extent required by applicable legal process, provided that the Recipient uses commercially reasonable efforts to (i) promptly notify the Discloser in advance, to the extent permitted by law, and (ii) comply with the Discloser’s reasonable requests regarding its efforts to oppose the disclosure. With respect to each Order, the obligations set forth herein will survive for the duration of the Order Term and five years following the expiration or termination of such Order.
6.1. Mutual Warranties. Each party represents and warrants to the other that (a) the Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against the executing party in accordance with its terms, (b) the execution, delivery, and performance of the Agreement by the executing party does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound or require authorization or approval from any third party, and (c) it will perform its rights and obligations under this Agreement in accordance with applicable law.
6.2. Semanttic Warranties. Semanttic represents and warrants to Customer during the applicable Order Term that: (a) Semanttic will provide access to the Semanttic Platform and related support services in substantive conformity with the Documentation; and (b) Semanttic will employ applicable industry standard measures to protect the Semanttic Platform, in the form provided to Customer by Semanttic, against software viruses, Trojan horses, worms, or other similar malicious programs or code.
6.3. DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 6, THE PARTIES MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER RELATING TO THE AGREEMENT. SEMANTTIC EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NON-SEMANTTIC RESOURCES ARE PROVIDED BY THIRD PARTIES, NOT SEMANTTIC, AND ANY USE OF NON-SEMANTTIC RESOURCES IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER. SEMANTTIC DOES NOT WARRANT OR SUPPORT, AND WILL NOT HAVE ANY RESPONSIBILITY OR LIABILITY OF ANY KIND FOR, NON-SEMANTTIC RESOURCES.
7.1. Indemnification by Semanttic.
7.1.1. Semanttic will defend Customer from any third party claim, action, suit, or demand (a “Claim”) based on an allegation that the Semanttic Platform violates, infringes, or misappropriates any third-party copyright, trade secret, or trademark, and will indemnify Customer for any costs, liabilities, damages, or other amounts (including reasonable attorneys’ fees) actually paid or payable to unaffiliated third parties (“Losses”) resulting from such Claim.
7.1.2. Semanttic will have no obligation to indemnify Customer for any Claim subject to indemnification under Section 7.1.1 to the extent it is based on: (a) Customer’s failure to use updates or modifications to the Semanttic Platform that Semanttic makes available to Customer that would have helped avoid or mitigate the Claim; (b) the combination, operation, or use of the Semanttic Platform with third-party equipment, devices, software, systems, or data, including Non-Semanttic Resources where the infringement would not have occurred but for such combination, (c) use of the Semanttic Platform by Customer or Customer’s Authorized Users in violation of the Agreement, or (d) Customer Materials.
7.1.3. If Customer’s use of the Semanttic Platform is, or in Semanttic’s reasonable opinion is likely to be, subject to a Claim eligible for indemnification under Section 7.1.1, Semanttic may, at Semanttic’s sole option and at no charge to Customer (and in addition to Semanttic’s indemnity obligation to Customer): (a) procure for Customer the right to continue using the Semanttic Platform; (b) replace or modify the Semanttic Platform so that it is non-infringing and include substantially similar functionality as the original Semanttic Platform; or (c) if options (a) and (b) above are not commercially practicable in Semanttic’s reasonable estimation, Semanttic may terminate Customer’s right to use the impacted portion of the Semanttic Platform and related licenses granted hereunder (in which event, Customer will immediately stop using the impacted portion of the Semanttic Platform) and provide a pro-rata refund of any pre-paid unused fees for the impacted service as of the date of termination.
7.1.4. THIS SECTION 7.1 SETS FORTH SEMANTTIC’’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT BY THE SEMANTTIC PLATFORM AND ANY OTHER TYPE OF CLAIM SPECIFICALLY COVERED UNDER SEMANTTIC’S INDEMNITY OBLIGATION (IF ANY). NO PARTY TO THE AGREEMENT WILL BE ENTITLED TO ANY FORM OF IMPLIED OR EQUITABLE INDEMNIFICATION AT ANY TIME, WHETHER BASED ON A THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY, AND ANY RIGHT THERETO IS HEREBY IRREVOCABLY WAIVED AND DISCLAIMED BY EACH OF THE PARTIES.
7.2. Indemnification by Customer. Customer will defend Semanttic from any Claim based on Customer Materials or use of the Semanttic Platform by Customer (or Customer’s Authorized Users) in violation of the Agreement, and Customer will indemnify Semanttic from any Losses resulting from any such Claim.
7.3. Process. If a party entitled to indemnification (the “Indemnified Party”) becomes aware of any indemnifiable Claim, such party will give the other party (the “Indemnifying Party”) written notice of the Claim as soon as reasonably practicable. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense or settlement of the Claim, and will allow the Indemnifying Party to have sole control of the defense or settlement. Subject to the prior sentence, the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Claim. To take advantage of the indemnity, the Indemnified Party must use all commercially reasonable efforts to mitigate its Losses. The Indemnified Party is not required to admit liability, except as required by applicable law, and any compromise or settlement of a Claim requiring the Indemnified Party to admit liability or to pay any money will require the prior written consent of both parties, such consent not to be unreasonably withheld or delayed. The indemnity obligations of the Indemnifying Party will be contingent on the Indemnified Party’s compliance with this process.
8.1. Limitation on Indirect Liability. EXCEPT FOR EXCLUDED CLAIMS, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY), WILL EITHER PARTY, ITS AFFILIATES AND ITS OR THEIR CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS (COLLECTIVELY, ITS “PARTY REPRESENTATIVES”), BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS, DATA, OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE SEMANTTIC PLATFORM, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Limitation on Amount of Liability. EXCEPT FOR EXCLUDED CLAIMS, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER THEORY OF LIABILITY), WILL THE TOTAL LIABILITY OF EITHER PARTY, ITS AFFILIATES AND ITS OR THEIR PARTY REPRESENTATIVES FOR ANY AND ALL DAMAGES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE USE OF OR THE INABILITY TO USE THE SEMANTTIC PLATFORM, EXCEED, IN THE MAXIMUM AGGREGATE, THE FEES PAID AND PAYABLE TO SEMANTTIC UNDER THE CUSTOMER’S APPLICABLE ORDER FORM IN THE TWELVE-MONTH PERIOD PRIOR TO THE DATE ON WHICH THE DAMAGE OCCURRED.
8.3. IN GENERAL. EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SEMANTTIC TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THE AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THE AGREEMENT.
9.1. Term. The term of this Software Agreement will commence on the Subscription Start Date of the first Order entered into between the parties and will continue until all Orders hereunder expire or until terminated in accordance with this Software Agreement, whichever happens first.
9.2. Termination for Material Breach. Either party may terminate an individual Order or this Software Agreement, upon written notice to the other party, if the other party materially breaches the Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it. Either party may terminate or suspend an individual Order or this Software Agreement upon written notice to the other party without a cure period if the other party breaches any of the terms relating to such party’s intellectual property rights or Confidential Information.
9.3. Effect of Termination. Termination of this Software Agreement will result in termination of all ongoing Orders; however, termination of a single Order will not result in termination of this Software Agreement or any other ongoing Orders. If Customer terminates for Semanttic’s uncured material breach, Semanttic will provide Customer a pro rata refund of prepaid unused fees applicable to the remainder of the Order Term for any terminated Order. If this Software Agreement or any Order is terminated for any other reason, Customer will not receive a refund and will pay all fees as if the Order had not been terminated. Upon any termination, Semanttic will make all Customer Materials then held by Semanttic pursuant to the applicable Order available to Customer for electronic retrieval for a period of 30 days, but thereafter Semanttic will delete or retain any stored Customer Materials as directed by the account holder. The following sections of this Software Agreement will survive any expiration or termination of this Software Agreement: 1, 3, 4, 5, 6.3, and 7-10.
10.1. Affiliates. A Customer Affiliate may enter into an Order under this Software Agreement and, in such case, by entering into the Order, the Affiliate agrees to be bound by the terms and conditions of this Software Agreement with respect to such Order and such Affiliate will be considered to be Customer, as such term is used herein, with respect to such Order. This Software Agreement is intended for the benefit of the parties who have entered into an Order under this Software Agreement and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
10.2. Force Majeure. A party will not be liable for, or be considered to be in breach of or default under the Agreement on account of, any delay or failure to perform as required by the Agreement (other than payment obligations) as a result of any cause or condition beyond such party’s reasonable control, including if a governmental authority with proper jurisdiction prohibits a party from performing its obligations under the Agreement. If a party fails to perform its obligations as a result of such cause or condition for a period of more than 30 days, then the other party may terminate the Agreement upon written notice, without liability.
10.3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the Agreement (each, a “Notice”) must be in writing (electronic mail sufficient) and sent to:
Semanttic: Contact identified in the Order
With a copy to: firstname.lastname@example.org
Customer: Contact identified in the Order
10.4. Severability. The invalidity or unenforceability of any provision of the Agreement will not affect the validity or enforceability of any other provision hereof and it is the intent and agreement of the parties that the Agreement will be deemed amended by modifying such provision to the extent necessary to render it valid, legal, and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is legal and enforceable and that achieves the same objective.
10.5. Assignment. The Agreement is not assignable or transferable by either party without the other party’s prior written consent, except that either party may (without the other party’s prior written consent) assign the Agreement, in whole, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of such party’s assets. Any purported assignment in violation of this section is null and void.
10.6. Service Providers. For the avoidance of doubt, Semanttic may engage third parties as service providers to the Semanttic Platform (for example, as of the date of this Software Agreement, Semanttic hosts the Semanttic Platform on Microsoft Azure). Semanttic will be responsible for its service providers’ compliance with this Agreement.
10.7. No Partnership. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and neither party has any authority of any kind to bind the other party in any respect whatsoever.
10.8. Governing Law and Dispute Resolution. The sole jurisdiction and venue for any Claims that are not handled by arbitration will be the state and U.S. federal courts located in Las Vegas, Nevada, and both parties consent to the jurisdiction of such courts. BY ENTERING INTO THESE TERMS, YOU AND FIGMA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY
10.9. Interpretation. Whenever the words “including,” “include,” or “includes” are used herein, they will be deemed to be followed by the phrase “without limitation.”
10.10. Entire Agreement. The Agreement supersedes all other agreements between the parties relating to its subject matter. In the event of any conflict among any Orders and this Software Agreement (including any applicable data processing addendum), the order of precedence will be (a) this Software Agreement, and (b) the Orders (from newest to oldest), unless such Order explicitly overrides this Software Agreement. Each party expressly objects to any different or additional terms set forth in any purchase order, acceptance, vendor portal, code of conduct, or other ordering documentation, and neither party’s later failure to object to any such different or additional terms nor its use or acceptance of any such other document or materials will be deemed acceptance thereof or a waiver of any of the terms hereof.
1. Defined Terms. The following capitalized terms will have the meanings set forth below: