Effective: April 1, 2025
1. Products.
1.1 Access to the Products. Filament offers digital products, hosted by a third party cloud provider, which distributes contextual targeting lists and reports at scheduled intervals based on data collected (“Products”). The Products are designed for the customization of targeting, advertising, analytics and research efforts, including but not limited to, target advertising, measurement insights, market research and analytics, and other types of Customer website customization. To the extent agreed by the parties in the applicable order for the Products (“Order”), Filament hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to access and to use the Products solely for Customer’s internal business purposes during the subscription term set forth in the applicable Order.
1.2 Customer’s Responsibilities. Customer is responsible for all activities that occur in accounts of persons authorized by Customer to access and to use the Products (“Authorized User”), including, but not limited to, compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all information or data submitted, used, accessed, or created by Customer or its Authorized Users in connection with the Products (“Customer Data”); (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Products, and notify Filament promptly of any such unauthorized access or use; and (iii) comply with all applicable local, state, federal and foreign laws in using the Products. Filament is not responsible for determining the requirements of laws applicable to Customer’s business or whether the Products meets the requirements of such laws, including those laws relating to the Products that Customer acquires under this Agreement.
1.4 Filament Guidelines. Neither the Customer nor any Authorized User shall: (i) license, sublicense, transfer, sell, resell, rent, lease, distribute, time share, assign, share or otherwise commercially exploit or make the Products available to any third party, other than to Authorized Users or as otherwise expressly contemplated by this Agreement; (ii) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights; (iv) send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (v) interfere with or disrupt the integrity or performance of the Products or the data contained therein; (vi) attempt to gain unauthorized access to the Products or related systems or networks; (vii) access the Products if Customer is a direct competitor of Filament; (viii) modify, copy, create derivative works decompile or reverse engineer the Products; (ix) frame or mirror any content forming part of the Products; or (x) access the Products in order to: (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Products.
1.5 Third Party Products and Services. Any acquisition by Customer of third party products or services, including, but not limited to, Third Party Applications and implementation, customization and other consulting services, and any exchange of data between Customer and any third party provider, is solely between Customer and the applicable third party provider. For purposes of this Section, “Third Party Applications” shall mean any online, internet based, mobile and offline applications or other software products or services that are (i) provided by third parties and (ii) access or interoperate with the Products provided to Customer. Filament does not warrant or support third party products or services, except as expressly specified in an Order. If Customer installs or enables Third Party Applications for use with the Products, Customer acknowledges that Filament may allow providers of those Third Party Applications to access Customer Data as required for the interoperation of such Third Party Applications with the Products. Filament shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Application providers.
1.6 Security. Each party agrees (i) it shall maintain information security measures designed to protect Customer Data from unauthorized disclosure or use, and (ii) it shall, upon request, provide the other party with information regarding such security measures upon the reasonable request of such party and promptly provide the requesting party with information regarding any failure of such security measures or any security breach related to Customer Data. Customer acknowledges and agrees that Filament uses a third party provider to host the Products.
1.7 Authorized Users. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User. Unless otherwise specified in the relevant Order, (i) additional Authorized User subscriptions may be added and existing Authorized User subscriptions may be reassigned, to the extent expressly agreed by the parties; (ii) the term of the additional Authorized User subscriptions shall be coterminous with the expiration of the subscription term in effect at the time the additional Authorized Users are added; and (iii) pricing for the additional Authorized User subscriptions shall be mutually agreed by the parties.
1.8 Products Modifications. Filament may, in its discretion, implement changes to the Products through updates and upgrades, and to receive notification of same, Customer must register at least one or more institution (i.e., not private and/or personal) email address(es) with Filament.
2. Fees.
2.1 Payment. Customer shall pay to Filament, monthly, yearly or multiyear fees for the relevant Products all fees within 30 days of the invoice date, as set forth in the applicable Order or as modified pursuant to Section 2.2.
2.2 New Prices. Filament may, at any time, adjust prices by issuing a new price list. Unless the price list expressly specifies a different start date for the price adjustment, such new price list shall apply with immediate effect for: (i) any Order placed after the issuance of the new price list and (ii) existing Order entering into a Renewal Term more than thirty (30) days after the earlier to occur of either: (a) issuance of the new price list or (b) notification to Customer of the new price list.
2.3 Late Payment. In the event of any late payment by Customer to Filament (i.e., payment is due in advance pursuant to Section 2.1), Filament may, at its option, terminate or suspend the provision of the Products to Customer, and such termination or suspension shall be effective upon ten (10) days’ notice to Customer. In the event of any such suspension and/or termination of the Products, Customer shall remain responsible for the payment of any and all fees to Filament during the applicable Initial Term and/or Renewal Term. Filament shall have no liability or responsibility for any termination or suspension pursuant to this Section 2.3. Any fees not paid when due to Filament shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is lower.
2.4 Taxes. Unless otherwise expressly provided, Filament’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder, excluding taxes based on Filament’s net income or property. If Filament has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Filament with a valid tax exemption certificate authorized by the appropriate taxing authority.
3. Term and Termination.
3.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Orders executed under this Agreement have expired or been terminated (“Term”). Upon expiration or termination of this Agreement or the applicable Order, Filament will delete data in accordance with Section 6.6. Any Order executed under this Agreement shall have a term as set forth in the applicable Order (the “Initial Term”). Thereafter, each Order shall automatically renew for consecutive twelve (12) month periods (each, a “Renewal Term”) upon the expiration of the Initial Term and any Renewal Term; provided, however, either party may elect not to renew an Order upon at least thirty (30) days’ written notice prior to end of the Initial Term or any Renewal Term of such Order. Upon at least thirty (30) days’ notice to Filament prior to the end of the Initial Term and/or Renewal Term of an Order, Customer may also elect to reduce or increase the scope under the applicable Order (i.e., volumes and/or capacities), which reduction or increase shall take effect upon the end of the applicable Initial Term and/or Renewal Term.
3.2 Termination for Cause. Either party may terminate this Agreement and the applicable Order: (i) in case of a material breach of the Agreement by the other party to the extent such breach remains uncured for more than thirty (30) days following receipt of a written notice by the breaching party of such material breach; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.3 Termination by Filament. Filament may at any time terminate this Agreement and any applicable Order in the event that: (i) Filament is required to do so by law (e.g., the provision of the Products to Customer is, or becomes, unlawful); (ii) the provision of the Products to Customer by Filament is, in Filament’s opinion, no longer commercially viable; or (iii) Filament has elected to discontinue the Products (or any part thereof). Upon any termination by Filament pursuant to Section 3.3(ii) or Section 3.3(iii) above, Filament shall refund Customer the pro-rata portion of any prepaid fees covering the remainder of the subscription term after the date of termination.
3.4 Survival. The provisions of Section 2 (Fees), Section 3 (Term and Termination), Section 4 (Intellectual Property), Section 5 (Indemnification), Section 6 (Confidentiality), Section 8 (Limitation of Liability) and Section 9 (Miscellaneous).
4. Intellectual Property.
4.1 Residuals. Customer acknowledges that Filament, in the provision of the Products, may use concepts or modifications of concepts developed while serving other clients. Customer acknowledges the benefit which may accrue to Customer, and Customer expressly and irrevocably permits Filament to continue in perpetuity, and without payment of a royalty, this practice of using concepts developed while serving Customer and modification of such concepts. The terms of this Section do not, however, affect the obligations of the parties under the Section 6 (Confidentiality).
4.2 Filament Intellectual Property. Filament shall continue to own the Products and all documents, code, works of authorship, programs, manuals, tools, user interfaces, deliverables, developments, processes, formulae, data, specifications and inventions provided, created, owned, licensed, developed, authored or invented by Filament (including its employees and contractors) prior to or independently of the Agreement, as well as enhancements and/or modifications to the foregoing created by Filament in the course of this Agreement and any Order; all of such right, title and interest in them shall remain vested with Filament (collectively, “Filament Materials”). Nothing in this Agreement shall grant to or confer upon Customer expressly or by implication any rights to such Filament Materials.
4.3 Generic Data. If Filament uses any Customer Data in connection with the Products (“Generic Data”), Filament shall anonymize any reference to Customer in the Generic Data, and the Generic Data shall be otherwise aggregated, de-identified and/or compiled on a generic basis. Subject to the foregoing, Customer hereby grants to Filament a non-exclusive, worldwide, perpetual, fully-paid up license to use, copy, perform, display, distribute, and create derivative works of the Generic Data.
4.4 Suggestions. Filament shall have and is hereby granted a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Products any suggestions, enhancement requests, recommendations or other feedback provided by Customer’s or Authorized Users relating to the Products.
5. Indemnification.
5.1 Filament Indemnity. Subject to Sections 5.2 to 5.4, Filament will indemnify the Customer against any finally awarded damages from a third party claim that the Products infringes the copyrights of such third party.
5.2 Notice of Claim. The Customer shall: (i) give Filament prompt notice of any relevant claim; (ii) not admit any liability or attempt to settle the claim without Filament’s prior consent; (iii) provide reasonable cooperation at its own expense to Filament in the defense and settlement of the claim; and (iv) give Filament sole authority to defend or settle the claim.
5.3 Remedy. In the defense or settlement of any claim under Section 5.1, Filament may, in its sole discretion, procure the right for the Customer to: (i) continue using the Products; or (ii) replace or modify the Products to be non-infringing; or (iii) if these remedies are not reasonably available, terminate this Agreement and applicable Order upon thirty (30) days’ notice to the Customer without any additional liability or costs.
5.4 Exclusions. Filament will not be liable under this Section 5 to the Customer if an alleged copyright infringement is based on: (i) any modification of the Products by anyone other than Filament; or (ii) the Customer’s use of the Products contrary to the instructions or documentation provided by Filament; or (iii) the Customer’s continued use of the Products after receiving notice of the alleged or actual infringement; or (iv) a combination of the Products with any other product or service which in the absence of such combination would not have resulted in any infringement.
5.5 Exclusive Remedy. THIS SECTION 5 STATES THE CUSTOMER’S SOLE AND EXCLUSIVE RIGHT AND REMEDY, AND Filament’S ENTIRE LIABILITY, FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
6. Confidentiality.
6.1 Confidential Information Definition. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement or the applicable Order (including pricing), the Products, business and marketing plans, technology and technical information, product designs, and business processes. The Products is deemed the Confidential Information of Filament. Each party shall keep confidential and use any such Confidential Information only to the extent required for the purposes of this Agreement, and each party shall impose similar obligations to persons who have a right and need to know such Confidential Information (e.g., Authorized Users).
6.2 Exceptions. Confidential Information does not include information which (and only to the extent that) the Receiving Party can establish through documentary evidence that such information: (i) was rightfully received without restrictions from third parties who owe no obligations of confidentiality to the Disclosing Party with respect to such information; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) was already publicly known at the time of disclosure or subsequently becomes publicly known through no breach by the Receiving Party of its obligations under this Section.
6.3 Standard of Care. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Legally Required Disclosures. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Injunctive Relief. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
6.6 Access to Data. During the term of this Agreement, Customer shall have access to Customer Data. Upon termination of the applicable Order, Filament will keep the Customer’s relevant data from the Products for at least thirty (30) days after the effective date of the termination of the applicable Order (i.e., the termination of the Products); provided, Filament may delete any and all such data thirty (30) after the effective date of the termination of such Products. Notwithstanding the foregoing, Customer is solely responsible for retrieving any data stored or used with the Products while Customer has access to the Products, and upon the effective date of the termination of the Products, Customer will not have access to the Products. Except to the extent agreed by the parties in writing, Filament will not be obligated to provide raw data to Customer.
7. Warranties and Disclaimers.
7.1 Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Filament represents and warrants that (i) Filament will provide the Products in accordance with the specifications set forth in the Order; and (ii) the functionality of the Products will not be materially decreased during a subscription term, except as provided herein.
7.2 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Filament AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES (INCLUDING IMPLIED AND STATUTORY WARRANTIES) OTHER THAN THOSE EXPRESSLY PROVIDED IN SECTION 7.1 ABOVE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, Filament AND ITS SUPPLIERS DO NOT WARRANT THAT ANY SERVICE SHALL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR ARE ERROR FREE. Filament DOES NOT PROVIDE, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, AND ALL OBLIGATIONS OR LIABILITIES FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE THEREOF. ANY ESTIMATE REGARDING SCOPE, TIME OF COMPLETION, COSTS, OR OTHER MATTERS WHICH MAY BE PROVIDED BY Filament ORALLY OR IN WRITING (WHETHER IN A ORDER OR OTHERWISE) ARE GIVEN USING COMMERCIALLY REASONABLE METHODS OF ESTIMATION AND ARE IN GOOD FAITH, BUT SHALL NOT BE CONSTRUED AS A WARRANTY OR GUARANTEE OF ANY TYPE. CUSTOMER AGREES THAT CUSTOMER’S PURCHASE OF SUBSCRIPTIONS IS NEITHER CONTINGENT UPON THE DELIVERY OF ANY FUTURE FEATURES OR FUNCTIONALITY NOR DEPENDENT UPON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY Filament WITH RESPECT TO FUTURE FUNCTIONALITY OR FEATURES.
8. Limitation of Liability.
8.1 Damages Cap. IN NO EVENT SHALL Filament’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER HEREUNDER, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IN RELATION TO COSTS FOR ANY AND ALL CLAIMS EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
8.2 Consequential Damages Disclaimer. IN NO EVENT SHALL Filament BE LIABLE, TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, COMPENSATORY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR DAMAGES BASED ON DAMAGE TO OR LOSS OF, CUSTOMER DATA, REVENUE, PROFITS, GOODWILL OR ANTICIPATED SAVINGS, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Miscellaneous.
9.1 Relationship of the Parties; No Third Party Beneficiaries. Nothing in this Agreement shall constitute or be deemed to constitute a relationship of employer and employee, agency, joint venture or partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and except as expressly provided herein, neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose. Except as expressly specified in an Order, the parties do not intend to create any obligations of or any rights, causes of action or benefits in favor of any third party or entity other than Customer or Filament.
9.2 Export Compliance. Customer represents and warrants that it will comply with any export control laws of the EU and U.S. Without limiting the foregoing, Customer represents that it and any Authorized User is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Customer shall not permit Authorized Users to access or use Products in violation of any U.S. export embargo, prohibition or restriction.
9.3 Force Majeure. If and to the extent that a party’s performance of any of its obligations pursuant to the Agreement (other than its obligation to pay amounts due hereunder) is prevented, hindered or delayed by fire, flood, hurricane, earthquake, other elements of nature or acts of God, acts of war, acts of a public enemy, acts of a nation or any state, territory, province or other political division, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, pandemics, theft, quarantine restrictions, freight embargoes or any other similar cause in each case beyond the reasonable control and without the fault or negligence of such party (each, a “Force Majeure Event”), then the non-performing, hindered or delayed party will be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues.
9.4 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Either party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
9.5 Assignment. Neither party may assign this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Filament shall have the right to assign this Agreement without such consent: (a) in connection with the sale of all or substantially all of its stock or assets; and/or (b) to the surviving or resulting entity in any merger or consolidation. This Agreement shall be binding on the parties and their respective successor and permitted assigns.
9.6 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut, without regard to its conflicts of laws rules. The state and federal courts located in New Haven County, Connecticut shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts.
9.7 Entire Agreement. This Agreement, together with each Order hereunder, is the entire agreement of the parties with respect to the subject matter and supersedes all prior discussions and negotiations and any earlier proposals whether verbal or written. In the event of any conflict between the provisions of this Agreement and any Order, this Agreement shall control.
9.8 Notices. Any notice, request, demand, or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be deemed to be properly given: (i) when delivered personally; (ii) when sent by email, with written confirmation of receipt by email; (iii) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt. All notices shall be sent to the address listed below (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section).