General Terms for Order Agreement Subscription Packages
Last Updated April 1, 2022.
By placing an order for our Products or Services through an Order Agreement that incorporates these General Terms, you agree to follow and be bound by them. Please read them carefully. If you do not have authority to accept these General Terms, or you do not agree to follow and be bound by them, do not purchase, download, access or otherwise use the Products or Services.
As used herein, “BlackSky” (and “we”, “us” and “our”) means BlackSky Technology Inc. or any of our Affiliates providing Products or Services hereunder and “you” and “your” mean the specific entity identified as the end user customer (or licensee) in the Order Agreement. You and we may also be referred to individually as a “Party” and together as the “Parties”.
As used in the General Terms, the following terms have the following meaning:
“Affiliate” means, with respect to a Party, an individual or entity that Controls, is Controlled by or is under common Control with such Party, where “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Party, whether through the ownership of voting or other securities, by contract or otherwise.
“Analytic Products” means BlackSky’s proprietary artificial intelligence analytics and machine learning derived data products, metadata, vectors, attributes, geo-temporal insights, measurements, situational awareness, multi-INT pattern-of-life, predictive modeling, trend forecasting, real-time event feeds, natural language processing, automated tip & cue, analysis summary or other information report generated from Imagery Products, Third Party Content or Third Party Services.
“Anti-Corruption Laws” means any applicable laws and regulations relating to anti-bribery or anti-corruption (governmental or commercial), including laws and regulations that prohibit the corrupt payment, offer, promise, or authorization of the payment or transfer of anything of value (including gifts or entertainment), directly or indirectly, to any representative of a foreign governmental authority or commercial entity to obtain a business advantage, including the U.S. Foreign Corrupt Practices Act, as amended, and, as applicable, any national and international laws enacted to implement the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions.
“API Materials” means the application programming interfaces (“APIs”) and associated tools and Documentation we make available for use with the Products, including sample code, software libraries, command line tools, data integration code, templates, and configuration files.
“Attribution” means acknowledgement as credit to the copyright holder, source where information, imagery or a direct quotation was obtained if it wasn’t your own firsthand knowledge.
“BlackSky Data” means any data, information or other content of any type and in any format, medium or form that is provided by us to you as part of your use of the Products and Services, including API Materials, or that we generate or derive in connection with your use, as further detailed in our Privacy Statement
“BlackSky Partner” means any reseller, distributor or systems integrator authorized by us to sell the Products and Services.
“BlackSky Website” means Blacksky.com and any related or successor websites that we may refer you to in connection with the Order Agreement.
“Confidential Information” means all information disclosed by or on behalf of one Party to the other, whether in written, oral or visual form, which is identified at or before the time of disclosure as being proprietary or confidential or that due to its character and nature, or the circumstances of its disclosure, a reasonable person would recognize as being proprietary or confidential. Confidential Information includes the terms of each Order Agreement, the Price List, the BlackSky Data, the Customer Data, Personal Information and all information relating to the installation, performance, operation, structure, methods, programming and Documentation of the Licensed Materials, unless you have obtained our prior written approval for such use or disclosure or such information falls within one of the available exclusions set forth in Section 9 (Confidential Information).
“BlackSky Website” means Blacksky.com and any related or successor websites that we may refer you to in connection with the Order Agreement.
“Customer” means that individual, legal entity or government agency identified as customer legal entity on the applicable Order Agreement.
“Customer Authored Items” means all scripts, software services, applications and other code that you or any Licensed User authors solely and independently for your own internal use to support interoperability between your internal systems and the Products, provided that such Customer Authored Items are not based on or derived from our Confidential Information or our Intellectual Property Rights.
“Customer Data” means any data, information or other content of any type and in any format, medium or form that is created or provided by you, whether directly or indirectly through any Licensed Users, for transmission, storage, integration, import, display, distribution or use in or through use of the Products.
“Derived Product ”or “DP” means a work that is created when a Licensed User exploits an Imagery Product in a manner that irreversibly modifies and uncouples the work from its source, such that extraction of the principal features and characteristics of the source Imagery Product is impractical. An example of a Derived Product would be a digital elevation model extracted from stereo Imagery Products.
“Documentation” means the technical product specifications, service descriptions, user manuals, integration guides, reference materials and other documentation, whether in print or electronic format, that we make available relating to the Products, as revised by us from time to time.
“EULA” means any separate end user license agreement terms and conditions governing the use of a Product, as attached, linked or otherwise incorporated into an Order Agreement, a Product, or a Supplement, as such terms and conditions may be updated from time to time by us in our sole discretion.
“Force Majeure Event” means an act of God or of the public enemy, epidemics, quarantine restrictions, terrorism, governmental act, accident, war, riot, strikes, embargoes, weather conditions, a Satellite or Satellite launch failure, internet service provider or telecommunication outages or other cause of a similar nature that is beyond a Party’s reasonable control and without its fault. In our case, a Force Majeure Event will be deemed to include any restrictions imposed on us (a) under the Government Requirements or as result of any changes to them or loss of any licenses thereunder and (b) by the enactment, adoption or modification of any law, regulation, or order by the U.S. government or any applicable foreign governmental authority that,in either case, limits or prohibits us from delivering Products and Services to you or otherwise performing our obligations hereunder.
“Government Requirements” means those licenses, grants or other authorizations issued by various government authorities and pursuant to applicable laws regulating private remote-sensing space systems.
“Group Member” means (a) if you are commercial customer, one of your Affiliates and (b) if you are a government customer, another entity within your governmental infrastructure that is at the same or a lower level, unless we agree otherwise in writing.
“Harmful Code” means any code, routine, program, procedure or mechanism intended to do harm, including, by way of example, Trojan horses, worms, viruses, time bombs and trap doors.
“Imagery Products” means BlackSky’s proprietary data products that consist of imagery and associated support metadata collected by the Satellites. The Imagery Products include both previously collected satellite imagery available within the archive library catalog and new tasking imagery collections where a Licensed User designates where imagery data should be collected by the constellation of Satellites within a designated time period. For new tasking imagery collections BlackSky does not guarantee that the imagery will be collected on or before the designated time period concludes. For the avoidance of doubt, any data from an Imagery Product that is extracted to a smaller subset, resized to different resolution or converted to a different file format than the original Imagery Product deliverable is still considered an Imagery Product and is licensed with the same corresponding rights. Imagery Products do not include satellite or other imagery owned by third party suppliers and licensed under Separate Terms.
“Intellectual Property Rights” means all intellectual property rights, as they exist anywhere in the world, whether registered or unregistered, including all: (a) patents, patent applications, patentable inventions and other patent rights (including any divisions, continuations, continuations-in-part, reissues, reexaminations and interferences thereof), (b) trademarks, service marks, trade dress, trade names, taglines, social media identifiers and related accounts, brand names, logos and corporate names and all goodwill related thereto, (c) copyrights, mask works, designs and any other equivalent rights in works of and any other related rights of authors, (d) internet domain names and internet addresses, (e) trade secrets, know-how, inventions, processes, procedures, database rights, and other proprietary information and rights and (f) moral rights and publicity rights.
“Licensed Materials” means the Products and the BlackSky Data.
“Licensed Software” means any software, API, or application made available to Customer by BlackSky in order to generate or access a Product. If Customer purchases a license to a Product that requires or enables the use of Licensed Software, then subject to the terms of the Order Agreement, BlackSky grants to Customer during the term of the license a non-sublicensable, non-transferable, non-exclusive license to install and operate the Licensed Software only on hardware owned or operated on behalf of Customer solely in connection with Customer’s use of the Product. Customer may make a reasonable number of copies of the Licensed Software for backup or maintenance purposes.
“Licensed User” means any person that uses or interacts with the Licensed Materials, either as a guest or an authenticated user. Except as otherwise expressly provided in the Order Agreement, including in a Supplement or the Order Agreement, Licensed Users are limited to your employees, consultants or authorized third-party contractors who are providing services to you with a legitimate need to access the Licensed Materials for the purpose of providing services to you.
“Managed Services” means any custom Services or bespoke solutions with advanced BlackSky personnel support we make available as part of the Platform, which may include managing, monitoring and analyzing Products you purchase.
“Order Agreement” means, collectively, these General Terms, each Supplement incorporated by reference,, any applicable EULAs and any exhibit or addendum attached to or incorporated by reference into any of them. The Order Agreement governs your use of Products and Services ordered from us or any BlackSky Partner.
“Non-Commercial Use” means any use other than the copying, redistribution, retransmission, publication, or other exploitation of any Product or Service for any commercial advantage or private monetary compensation, including with respect to any use for advertising, marketing, or promotional materials and/or services or for any other commercial purpose whatsoever.
“Order Term” means the order term specified in each Order Agreement.
“Personal Information” means any personal information that, alone or in combination with other information, can be used to specifically identify any individual, including names, addresses, telephone numbers, personal health information, drivers’ license numbers and government-issued identification numbers, as applicable or that otherwise constitutes “personal data” or “personal information” under applicable Privacy Laws.
“Platform” means the online cloud-based platform developed and operated by BlackSky with which Licensed Users are able to access the Licensed Materials. The Platform includes both application programming interface (API) and graphical user interface (GUI) web applications that are made available to Licensed Users to access Analytic Products, Imagery Products and Subscription Service Products. The Platform includes a variety of Tools and web services designed for searching, viewing, ordering and downloading the Licensed Material. For the avoidance of doubt the available graphical user interfaces of the Platform include Spectra Tasking, Spectra AI, BlackSky Events and Spectra Archive web applications with associated APIs.
“Price List” means the BlackSky Products Price List, as such Price List may be updated from time to time by us in our sole discretion.
“Privacy Laws” means any and all applicable laws and regulations relating to privacy, data protection, or cybersecurity with respect to the collection, use, storage, transfer, processing, safeguarding and security (both technical and physical) of Personal Information.
“Products” means those products or subscription services licensed by the Customer as described in the Order Agreement andany associated product specification or service description, which may include, without limitation, (i) Analytic Products, Imagery Products, and Subscription Service Products delivered via subscription-based access to the Platform and (ii) Licensed Software.
“Professional Services” means any additional consulting, integration, training or other professional services we may provide to you, as detailed in an Order Agreement.
“Satellite” means any and all BlackSky owned or leased spacecrafts that form part of our remote-sensing space system.
“Separate Terms” means the separate terms and conditions applicable to third party software (including open source software), Third Party Content and Third Party Services, as accompanying the delivery or as specified in Supplement H, the Documentation, readmes, notice files, imagery headers, the BlackSky Website or by other notification method. Separate Terms are incorporated by reference into the Order Agreement and a breach of the Separate Terms will be deemed a breach of the Order Agreement.
“Service Providers” means our suppliers, subcontractors and other third party service providers that we may utilize in connection with the provision of the Products and Services and in administering your account.
“Services” means, collectively, applicable Support Services and Professional Services.
“Subscription Service Products” means a Product that is comprised of Imagery Products, Analytic Products, Third Party Content, or Tools that are delivered via the Platform on a subscription basis. For the avoidance of doubt this includes BlackSky On-Demand, BlackSky Assured, BlackSky Detect, BlackSky Events and BlackSky Site Monitoring subscription service product offerings.
“Supplements” means, as further detailed in Section 2, those Supplements that we may incorporate from time to time in the Order Agreement that set forth terms and conditions applicable to certain types of BlackSky offerings or customers (such as government customers) which may add to, or vary from, these General Terms.
“Support Services” has the meaning specified in Supplement A.
“Term” means the term of the Order Agreement, which will continue until the expiration of the Order Term of the last outstanding Order Agreement, unless otherwise terminated as provided herein.
“Third Party Content” means any third party-owned data made available by us via the Platform, including enhanced satellite imagery, news articles, photographs and associated metadata.
“Third Party Services” means any third party-provided services made available by us via the Platform or as part of the provision of Products and Services to you.
“Tools” means all software, applications, APIs, tools, algorithms and other support resources made available by BlackSky on the Platform or included in a Subscription Services Product.
“Value-Added Product” or “VAP” means a work that is created when a Licensed User modifies an Imagery Product through technical manipulation, addition of data, or both, in each case where the principal features and characteristics of the source Imagery Product are retained in the work and are extractable through technical means. Value-Added Products created from Imagery Products received under the Order Agreement are considered Imagery Products. An example of a Value-Added Product would be a Geo PDF intelligence report containing an Imagery Product with map annotation overlays.
Rules of Construction.
Unless the context requires otherwise, (i) words of any gender include each other gender, (ii) words using the singular or plural number also include the plural or singular number, respectively, (iii) each reference to a “section,” “clause,” “Supplement,” “Annex” or like designation is to the corresponding section, clause, Supplement, Annex or like designation of or to these General Terms, (iv) “including” will mean “including, without limitation,” (v) “herein,” “hereof,” “hereunder,” and words of similar import refer to the Order Agreement as a whole and not to any particular section or other subdivision, (vi) the word “or” will be disjunctive but not exclusive and (vii) references to “$” or “dollars” will mean the lawful currency of the United States. In the event an ambiguity or question of intent or interpretation arises, the Order Agreement will be construed as if drafted jointly. References in the Order Agreement to any provisions of law will include all regulations promulgated thereunder and will be deemed to refer to such provisions as they may be subsequently amended.
These General Terms apply whether:
(a) Your order for Products or Services is placed directly by you or indirectly on your behalf through one or more higher-tier contractors or another acquiring agency or entity.
(b) The Order Agreement consists of (i) our standard template as it may be updated from time to time, or (ii) a prime contract, purchase order or other purchasing document issued directly by you to us or (iii) any such purchasing document issued by any acquiring agency or entity on your behalf.
(c) The Order Agreement is entered into directly by us or indirectly through a BlackSky Partner.
During the Term, you and we may enter into one or more Order Agreements for the provision of Products and Services to you. However issued, you and we agree that, among other terms, each Order Agreement will specify (a) its own initial Order Term, (b) the Products to be made available to you and the associated license rights and levels for them, (c) the Services to be provided to you, (d) the scope of work for Professional Services, (e) applicable fees and corresponding billing terms and (f) any additional terms, conditions or requirements applicable to specific Products or Services, including any additional EULAs.
The Supplements set forth below are currently incorporated by reference into the Order Agreement, subject to the qualifications, exceptions and exclusions set forth therein, and as such list and such Supplements may be added to, modified or superseded by us from time to time. We generally refer to each Supplement by its letter.
Acceptance of Terms.
Your execution of an Order Agreement is your acceptance of it in accordance with its terms and these General Terms. You acknowledge that your obligation to pay for Products and Services under an Order Agreement is not contingent on our delivery of (a) Products and Services under any other Order Agreement that may then be in effect or (b) any future functionality or features, including with respect to any Product roadmap presentations we may make to you or any public comments we may make on future functionality or features.
We recognize that certain of our standard commercial terms and conditions may not be applicable to our government customers. If you are a government entity, please see Supplement B for certain superseding terms.
BlackSky Partner Transactions.
If you purchase the Products and Services from a BlackSky Partner, the terms of the Order Agreement apply to your use of the applicable Products and Services and prevail over any inconsistent provisions in your agreement with the BlackSky Partner, unless we expressly consent otherwise in writing. You acknowledge and agree that we may enforce the Order Agreement terms directly against you or through the BlackSky Partner. If requested by a BlackSky Partner, you agree that we may provide a copy of the Order Agreement to that BlackSky Partner in order to enable processing of your order.
Pricing and Renewals.
Each Order Agreement will automatically renew for additional one-year periods following the expiration of the initial Order Term, unless otherwise specified therein or unless either Party provides written notice of its intent not to renew at least thirty (30) days prior to its expiration date. Our prices and promotions are generally subject to change on 30 days’ notice. We will notify you reasonably in advance of any renewal term if there are any fee changes. The new fees will apply for the upcoming renewal term unless you promptly notify us in advance of the renewal date that you do not accept them, in which case that Order Agreement will terminate at the end of the current Order Term.
Delivery and Acceptance.
Products are deemed delivered and accepted upon the provision of access to you or for your benefit. Imagery Products are ordered and delivered via the Platform, associated APIs or other delivery mechanisms designated in the Order Agreement. Services are deemed delivered and accepted upon performance or as otherwise specified in an Order Agreement.
No Conflicting Terms.
Unless we expressly consent otherwise in writing, any separate terms you may propose which add to, vary from, or conflict with the Order Agreement, including any terms you may customarily include in an issued purchase order or as part of your vendor onboarding process, are hereby objected to by us and will have no force or effect.
Updated General Terms.
We may change these General Terms at our discretion from time to time by updating them on the BlackSky Website. If we deem the changes to be material, we will make a reasonable effort to inform you of them. Except for changes mandated by applicable law, any such changes will not impose additional obligations on you with respect to actions you took before the change became effective unless you specifically agree to such changes, provided that any Products or Services you acquire or renew after the date of modification will be deemed to be acceptance of such changes.
Order of Precedence.
Any ambiguity, conflict or inconsistency among the documents shall be resolved according to the following order of precedence: Order Agreement, Section 14.1 of these General Terms, Supplement, the remaining General Terms, and any other Documentation.
Reservation of Rights.
Licensed Materials are licensed, not sold. You acknowledge that we and our licensors retain all rights, title and interests in and to the Licensed Materials and all Intellectual Property Rights therein. You agree that you have no rights, title or interests in or to the Licensed Materials, or any copies thereof, other than the license grants herein. You acknowledge that the Licensed Materials are, in part, protected by copyright laws and international copyright treaties, as well as other intellectual property rights and treaties, and you will not, at any time, commit or permit any act which infringes our Intellectual Property Rights.
As between the Parties, you retain all right, title and interest, including all Intellectual Property Rights, in and to the Customer Data and the Customer Authored Items. Nothing in the Order Agreement will prevent us from independently creating, developing, building, authoring or using items or applications with overlapping, similar or identical functionality, content, capability or purpose to Customer Authored Items, provided that such independently created items do not include Customer Data or your Confidential Information or your Intellectual Property Rights.
Changes to Licensed Materials.
Subject to the time periods specified in the relevant Supplement (except when a faster response time is required to mitigate an emergency or threat to our operations, to comply with applicable laws, to respond to requests or demands of a government or regulatory authority or concerning third party privacy or intellectual property rights), we may change, discontinue, limit or remove functionality of certain Licensed Materials at any time. We will work in good faith with you to mitigate any material disruption to the Licensed Materials resulting from the change.
If you or any Licensed User chooses to provide input, suggestions or other feedback regarding problems with or proposed modifications or improvements to any Product or Service, then you or such Licensed User hereby grants us an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free license to exploit such feedback in any manner and for any purpose, including to improve the Products and Services or to create other products and services.
INVOICING, PAYMENT AND TAXES.
To the extent permitted by law, orders for Products and Services are non-cancellable. You understand that you may receive multiple invoices if there is more than one Order Agreement outstanding, and that each invoice stands on its own and will be paid in accordance with its terms without credit or offset against any other invoice. Unless otherwise agreed in writing by the parties, all invoices are payable within thirty (30) days of the invoice date. You are responsible for all taxes, duties, fees and other governmental charges of any kind(including, but not limited to, sales, use, gross receipts, excise, withholding, value added, and goods and services taxes, but excluding taxes based on BlackSky’s net income) which are imposed by or under the authority of any government on payments due herein. If we have the legal obligation to pay or collect taxes for which you are responsible under this paragraph, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority. In that case, you will update us promptly if there are any changes to your tax-exempt status. Unless otherwise specified in an Order Agreement, all payments will be made in U.S. dollars. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount of interest for late payment allowed by applicable law, whichever is less. At our discretion we will not apply a service charge if you are disputing the applicable charge reasonably and in good faith and are cooperating diligently to resolve the dispute. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes.
WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
Each Party represents that: (a) it has validly entered into the Order Agreement, (b) it has the legal power to do so and (c) entering into an Order Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which it may be a party or bound.
Our Performance Warranties.
We warrant that (a) the Products as delivered to you will perform in all material respects in accordance with the applicable Documentation, (b) during the Term the Services will be performed in a professional manner consistent with industry standards and will conform in all material respects to the requirements of the Order Agreement and applicable Documentation, and (c) we will use commercially reasonable efforts to deliver the Products free of Harmful Code. You will notify us in writing within twenty-one (21) calendar days after the date of delivery if the Products do not materially conform to the applicable Documentation.
The preceding warranties do not apply:
(a) if the Product has been acquired on a trial, evaluation or no charge basis,
(b) to any Third Party Content or Third Party Service, or
(c) to the extent any nonconformity is attributable to (i) any use of any Products or Services by you in violation of applicable law or the Order Agreement or (ii) any use of the Customer Data or Customer Authored Items in connection with the Products and Services, where our nonconformity would not have occurred but for such use of Customer Data or Customer Authored Items.
Remedy for Our Breach.
In the event we breach a preceding warranty, you may give us written notice of termination of the applicable Order Agreement, which termination will be effective thirty (30) days after we receive it (or such other period of time as may be mutually agreed upon based on the circumstances of the breach), unless we are able to remedy the breach prior to the effective date of termination. We will use commercial reasonable efforts to do so. In the event of termination, we will, as our sole and exclusive remedy, terminate the applicable Order Agreement and refund to you the prorated amount of fees received by us from you for the non-conforming Products or Services.
Except as expressly set forth in the Order Agreement, all Licensed Materials and Services are provided “as is” without warranties of any kind, including any implied warranty or condition of merchantability, fitness for a particular purpose, non-infringement, satisfactory quality, non-interference, accuracy of informational content, or arising from a course of dealing, law, usage, or trade practice, all of which are excluded to the extent allowed by applicable law and are expressly disclaimed by us, our licensors and our Service Providers. We do not warrant BlackSky Data, third party software, Third Party Content or Third Party Services, all of which are provided “as is” and subject to applicable Separate Terms. We are not responsible for your use of the Licensed Materials and Services. You understand and agree that your use of the Licensed Materials and Services is at your own discretion and risk, and that we are not responsible for any actions or inactions taken by you as a result of your use of our Licensed Materials and Services or for any damage to property or any loss of data. To the extent an implied warrant cannot be excluded, such warranty is limited to five days after first download or other access, except in those states or jurisdictions that do not allow limitations on an implied warranty.
COMPLIANCE WITH LAWS.
Each Party is and will continue to be in compliance with all laws and regulations applicable to its obligations under the Order Agreement, including Anti-Corruption Laws, Privacy Laws and the export control laws referenced below. You agree to cooperate with us to assure continued compliance with all applicable laws, including with respect to your delivery of any certificates, questionnaires or other due diligence responses (including with respect each Group Member and Licensed User) we or our BlackSky Partner may reasonably request in order to comply with our obligations under the Government Requirements or other applicable law. You acknowledge that we may restrict the availability of any Licensed Material or Service in any particular location or modify or discontinue features to comply with applicable law. If you learn of any potential violation of any such applicable law, you will promptly notify our Legal Department at [email protected]
Unless we specify otherwise, all Licensed Materials and Services are subject to U.S. trade controls and sanctions laws and regulations, including the U.S. Export Administration Regulations and the sanctions laws and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), as well as the trade controls and sanctions of any other jurisdictions in which you operate, and may only be exported, reexported, or transferred in accordance with applicable requirements. Each Party represents that it and its respective Affiliates are not included on any of the restricted party lists maintained by the U.S. government—including the Specially Designated Nationals and Blocked Persons List administered by OFAC, Denied Persons List, Unverified List or Entity List maintained by the U.S. Commerce Department’s Bureau of Industry and Security, the List of Statutorily Debarred Parties maintained by the U.S. State Department’s Directorate of Defense Trade Controls—or on the list of consolidated list of asset freeze targets designated by the United Nations, European Union and United Kingdom. A Party will immediately notify the other if it or one of its Affiliates is included on any such list or if its export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or non-U.S. government entity or agency. You will not permit any Licensed Users to access or use any Licensed Materials or Services in a country subject to U.S. embargoes or other special controls (currently Cuba, Iran, North Korea, Syria and the Crimea region of Ukraine, as such list may be updated by the U.S. government in 15 C.F.R. §746) or in violation of any U.S. export law or regulation. You also agree to obtain any required licenses or authorizations from the requisite government agency to export, reexport, or transfer (in-country) Licensed Materials or Services.
During the Term and for 12 months thereafter, you will take reasonable steps to maintain complete and accurate records of your use of Licensed Materials sufficient to verify compliance with the Order Agreement. Upon reasonable advance notice, and no more than once a year, you will allow us to examine and audit through an independent third party such records and any applicable books, systems and accounts during your normal business hours. The auditor will have agreed in advance in writing to maintain in confidence and not to disclose to us any of your Confidential Information obtained during the course of such audit and unrelated to it. You will permit the auditor to copy and retain audit-relevant records in confidence. If the verification process discloses underpayment of fees, you will pay such fees plus interest and you will also pay the reasonable cost of the audit if the fees owed to us as a result exceed the amounts you paid to us by more than 5%.
Obligations of Receiving Party.
Under the Order Agreement, either Party may be exposed to Confidential Information of the other Party. The receiving Party agrees that it will hold and maintain Confidential Information in strict confidence using the same degree of care, but no less than a reasonable degree of care, that the receiving Party uses to protect its own confidential information of a like nature. The receiving Party may disclose the Confidential Information only to its officers, directors, employees, Affiliates, professional advisors, lenders, agents and, in your case, Group Members and Licensed Users (collectively, “Representatives”) who have a bona fide need to know and who are bound by a comparable confidential obligation. The receiving Party will remain responsible for any breach by any of its Representatives of any of the confidentiality obligations hereunder. The receiving Party will promptly notify the disclosing Party upon discovery of any unauthorized use or disclosure of Confidential Information, whether inadvertent or otherwise, and will reasonably cooperate with the disclosing Party to regain possession of the Confidential Information and to prevent its further unauthorized use or disclosure. Nothing in this Section relieves the Parties from any disclosure restrictions contained in a previously executed nondisclosure agreement, which otherwise will remain in effect, with any inconsistency between the two being resolved in favor of the nondisclosure agreement.
Confidential Information does not include information that (a) is or becomes a matter of public knowledge through no fault of the receiving Party, (b) is rightfully received by the receiving Party from a third party without restriction on disclosure, (c) was in the receiving Party’s rightful possession before receipt from the disclosing Party, (d) is disclosed by the disclosing Party to a third party without a duty of confidentiality on the third party, or (e) is independently developed by the receiving Party without reliance on Confidential Information, as can be shown by documentary evidence.
Compelled Disclosure. If the receiving Party is requested or required by law, regulatory authority or other applicable judicial or governmental order to disclose any Confidential Information, the receiving Party will, unless prohibited by law, provide the disclosing Party with prompt notice of such request or requirement so that the disclosing Party may seek a protective order or other appropriate remedy or waive compliance with the terms of the Order Agreement, and reasonably consult and cooperate with the disclosing Party in seeking any such remedy. If such protective order or other remedy is not obtained, or the disclosing Party waives compliance with the terms hereof, the receiving Party may disclose only that portion of the Confidential Information that is legally required.
Return or Destruction.
Upon expiration or termination of the Order Agreement, or the disclosing Party’s earlier request, the receiving Party will cease using the Confidential Information and promptly return or destroy (if specified by the disclosing Party) all originals and copies of the Confidential Information and all other materials containing extracts, summaries or other information from the Confidential Information, and upon request, confirm in writing that the receiving Party has complied with these obligations. Notwithstanding the foregoing, the receiving Party may retain copies of the Confidential Information under restricted access to the extent retained in its routine archival or computer back-up systems or pursuant to its standard document or e-mail retention practices or to the extent required by legal requirements, regulatory authority or professional standards, in each case subject to the receiving Party’s continued compliance with its confidential obligations under the Order Agreement.
Nothing in the Order Agreement is intended to prohibit either Party (with or without notice to the other) from reporting violations of laws or regulations or fraud, waste or abuse to a relevant governmental agency, regulatory body, or a local authority, or from making disclosures that are protected under whistleblower laws and regulations.
Each Party acknowledges that the restrictions set forth in this Section are reasonable and necessary to protect their legitimate interests and that any violation of these restrictions may cause irreparable damage to the disclosing Party for which monetary damages may be an insufficient remedy and therefore the disclosing Party will be entitled to seek appropriate equitable relief without the requirement to post a bond or other security.
Our IP Infringement Indemnity.
We will defend you from and against any third-party demand, claim, lawsuit, action or other proceeding (each a “Claim”) of infringement or violation of any Intellectual Property Right asserted against you arising from or related to your use of the Products in accordance with the terms of the Order Agreement, and we will indemnify and hold you harmless from and against all costs, attorneys’ fees and damages, if any, finally awarded pursuant to a non-appealable order by a court of competent jurisdiction (“Damages”) in such Claim or settlement we enter into. If your use of any Product is, or in our opinion is likely to be, enjoined by a court of competent jurisdiction due to the type of infringement specified above, or if required by a settlement approved by us in writing, we may, in our sole discretion and at our own cost: (1) substitute for the affected Product substantially functionally similar products or services, (2) procure for you the right to continue using the affected Product or (3) if we reasonably determine that options (1) and (2) are commercially impracticable, terminate the applicable Order Agreement and refund to you the prorated amount of fees received by us from you for the discontinued Product. The foregoing obligations (the “Excluded Claims”) will not apply:
(a) If the Product is modified by you or on your behalf (including by any Licensed Users or other third parties) without our authorization, but only to the extent the alleged infringement would not have occurred but for such modification.
(b) If the Product is modified by us at your request, but only to the extent the alleged infringement would not have occurred but for such modification.
(c) If the Product is combined with other non-BlackSky products or services not authorized by us, but only to the extent the alleged infringement would not have occurred but for such combination.
(d) To any unauthorized use of any Product, any use that is not consistent with the Documentation, or use during any period of suspension.
(e) To any superseded release of a Product if the infringement would have been avoided by the use of a current release of that Product that we have provided or made available to you prior to the date of the alleged infringement.
(f) To any Product provided on a trial, evaluation or no charge basis.
(g) To any Customer Data or Customer Authored Items, but only to the extent the alleged infringement would not have occurred but for the use of such Customer Data or Customer Authored Items.
The preceding indemnity sets forth our entire obligation and your exclusive remedy with respect to any Claims asserted against you with respect to any infringement or violation by us of any Intellectual Property Right.
Our General Indemnity.
We will defend you from and against any Claim asserted against you arising from or relating to our actual or alleged breach of any of our representations, warranties or obligations under the Order Agreement or our gross negligence or willful misconduct, and we will indemnify and hold you harmless from and against all related Damages.
Your General Indemnity.
You will defend us from and against any Claim asserted against us arising from or relating to your actual or alleged breach of any of your representations, warranties or obligations under the Order Agreement, your gross negligence or willful misconduct or the Excluded Claims, and you will indemnify and hold us harmless from and against all related Damages.
Indemnification Procedures. Each Party’s indemnification obligation under the Order Agreement is conditioned upon the indemnified Party:
(a) Providing prompt written notice of any Claim of which it becomes aware, provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay and provided further that the indemnifying Party will not have any obligation to reimburse the Indemnified Party for attorneys’ fees and costs incurred prior to the indemnifying Party’s receipt of such notice.
(b) Granting the indemnifying Party the right to assume the exclusive defense and control of any matter that is subject to indemnification, provided that the indemnifying Party will not settle any claim unless it unconditionally releases the indemnified Party of all liability and does not admit fault or wrongdoing by the indemnified Party or impose any obligation (monetary or otherwise) on the indemnified Party without its prior written consent, and provided further that the indemnified Party will have the right to participate in the defense at its own expense.
(c) Cooperating with any reasonable requests assisting the indemnifying Party’s defense and settlement of such matter, at the indemnifying Party’s expense.
LIMITATION OF LIABILITY.
To the maximum extent permitted by applicable law, under no circumstances will a Party or its Affiliates, directors, officers and employees (and in our case our licensors and Service Providers) be liable for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or in any way relating to the Order Agreement or that result from the use of, or inability to use, the Licensed Materials and Services, including loss of goodwill, work stoppage, lost profits, loss of data, computer failure or malfunction, or any and all other commercial damages or losses, whether based on warranty, contract, tort (including negligence), statute or any other legal theory and whether or not a Party has been informed of the possibility of damage. The maximum aggregate liability of each Party under the Order Agreement will not exceed the amount of fees actually paid by you under the applicable Order Agreement during the 12-month period immediately preceding the first event giving rise to such liability. You and we agree that such remedy is fair and adequate. These limitations of liability do not apply to liability arising from your failure to pay all amounts due or from a Party’s indemnification obligations under the Order Agreement. Nothing in the Order Agreement limits or excludes any liability that cannot be limited or excluded under applicable law. This limitation of liability is cumulative and not per incident.
SUSPENSION AND TERMINATION
You acknowledge that we may monitor your use of the Licensed Materials and Services for purposes of verifying compliance with the Order Agreement and with applicable law. We may, without limiting our other rights and remedies, suspend your access and use right to use Licensed Materials and Services (a) if any invoice is overdue, (b) if you are not otherwise in compliance with the Order Agreement or with applicable law or (c) in the event of a Force Majeure Event affecting us. You will remain responsible for payment of applicable fees through the date of suspension. In the case of the preceding clause (a) or (b), we reserve the right to terminate the Order Agreement and all outstanding Order Agreements for cause if your breach is not timely cured.
Either Party may terminate the Order Agreement or an Order Agreement for cause (with respect to termination of the Order Agreement in whole, including the Order Terms of all then-current Order Agreements, and with respect to termination of an Order Agreement, the applicable Order Term) if the other Party (a) materially breaches this Agreement and fails to cure such breach within thirty (30) days of receiving written notice from the non-breaching Party (or such other period of time as may be mutually agreed upon based on the circumstances of the breach) or (b) becomes generally unable to pay its debts as such debts become due, becomes bankrupt or insolvent, makes an assignment for the benefit of creditors or goes into liquidation, if proceedings are initiated for the purpose of having a receiving order or winding up order made against such Party, or takes any like action in furtherance of the foregoing. Notwithstanding any cure period, we may terminate the Order Agreement or any applicable Order Agreement immediately where you materially fail to comply with applicable law.
Effect of Termination.
Expiration or termination of the Order Agreement or any Order Agreement for any reason will not affect the rights and obligations of either Party (including payment obligations) that have accrued as of the effective date of the expiration or termination or that are based upon any event occurring prior to such effective date. If you terminate an Order Agreement for cause, we will refund to you any prepaid fees applicable to the period of time following the effectiveness of the termination. Any fees accrued before such effective date will remain due and payable. If we terminate an Order Agreement for cause, we will retain all fees previously paid by you, and, without duplication, you will be responsible for paying all fees otherwise due for the remainder of the then-current Order Term. Upon expiration or termination of the Order Agreement, (a) all of your rights, access, and licenses granted hereunder to the corresponding Products and Services will immediately cease, including access to the Platform, (b) each Party will comply with its obligations hereunder with respect to the return or destruction of the other Party’s Confidential Information, including, in our case, all API Materials, Documentation and BlackSky Data and (c) upon your written request, we will for 30 days after such expiration or termination (or such longer period as may be mutually agreed) provide you with access to the Customer Data in a format and media reasonably accessible to you and will thereafter use reasonable methods to delete or otherwise make all such Customer Data inaccessible.
DISPUTES, GOVERNING LAW AND VENUE.
Except as set forth in Supplement B with respect to our government customers, the Order Agreement will be governed by and construed in accordance with the applicable governing law specified below based on your primary place of business and without regard to conflicts of laws rules. You and we agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act will not apply. Our goal is to resolve amicably any dispute that may arise between you and us. To the extent a dispute cannot be resolved by good faith discussions between the Parties, you and we agree that, except as set forth in Supplement B, the corresponding venue specified below for the applicable governing law will have exclusive jurisdiction to adjudicate such dispute. Each Party consents to the exclusive jurisdiction of such venue, except that either Party may seek a temporary or permanent injunction or other equitable relief in any court of appropriate jurisdiction with respect to any alleged breach of Intellectual Property Rights or Confidential Information.
|Your Primary Place of Business||Governing Law||Jurisdiction and Venue|
|United States, Canada and Mexico||State of New York and applicable U.S. federal law||United States District Court for the Southern District of New York or, if jurisdiction is not proper, any New York State court sitting in New York City.|
|Any other location||Laws of England and Wales||Finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with those Rules.|
With respect to an arbitration proceeding, you and we agree that there will be one arbitrator, who will be an attorney with substantial experience in resolving complex commercial contract disputes involving the software industry. The seat of the arbitration will be New York City and the language of the arbitration will be English. Each Party will, at the request of the other, make available documents or witnesses relevant to the major aspects of the dispute. To the maximum extent possible, the Parties will maintain the confidential nature of, and will not disclose to any third party the existence of or any information related to, the judicial or arbitration proceeding. To the extent permitted by law, the Parties waive their right to a jury trial. The prevailing Party in any action to enforce the Order Agreement will be entitled to reasonable costs and reasonable attorneys’ fees. Nothing herein will be deemed to affect the right of any Party to serve process in any manner permitted by applicable law or to commence legal proceedings or otherwise proceed against the other Party in any other jurisdiction, in each case to enforce judgments obtained in any action brought pursuant to this Section. Except for actions for nonpayment or breach of Intellectual Property Rights or Confidential Information, no action, regardless of form, arising out of or relating to the Order Agreement may be brought by either Party more than two years after the cause of action has accrued.
The Order Agreement supersedes all prior discussions and writings and constitutes the entire agreement of the Parties with respect to its subject matter. No representation, inducement or promise has been made or relied upon by either Party, unless expressly set forth in the Order Agreement. No waiver or modification will be effective unless approved in writing by both Parties.
Neither Party may issue any public announcement or press release regarding the Order Agreement without the other Party’s prior consent, not to be unreasonably withheld, delayed or conditioned.
Relationship of the Parties.
You and we are independent contractors. Nothing herein will be construed as creating any partnership, employment or agency relationship, and neither Party may bind or obligate the other or make representations on the other’s behalf. This is a non-exclusive arrangement, and nothing herein prevents, restricts or limits our right and ability to market, sell or provide the same or similar products and services to any third party.
Neither Party may assign the Order Agreement, in whole or in part, or any of its rights or obligations hereunder, without the prior written consent of the other Party, not to be unreasonably withheld, delayed or conditioned. Notwithstanding the foregoing, (1) we may, without your consent, utilize our Service Providers in the manner permitted by the Order Agreement, (2) you may designate Group Members and your and their respective Licensed Users in the manner permitted by, and subject to, the Order Agreement, and (3) either Party may assign the Order Agreement in its entirety (including all Order Agreements), without the consent of the other Party, to its Affiliate or in connection with a Change of Control, provided, in either case that such assignment does not diminish the assigning Party’s ability to perform its obligations hereunder, including with respect to the payment of fees. A “Change of Control” means the (a) consolidation or merger of a Party with or into any person or entity, including by operation of law; (b) sale, transfer or other disposition of all or substantially all of the assets of the Party’s business related to the subject matter of this Order Agreement; or (c) acquisition by any person or entity, or group of persons or entities acting in concert, in a single transaction or series of related transactions, of beneficial ownership of fifty point one percent (50.1%) or more of the outstanding voting securities or interests of a Party, but excluding in each case a Change of Control (i) involving a direct competitor of the other Party or (ii) where the transaction would reasonably be expected to result in a material expansion or increase to the scope of the licenses granted to you hereunder without a corresponding fee adjustment. A Party’s sole remedy for any purported assignment by the other Party in breach of this paragraph will be, at the non-assigning Party’s election, termination of the Order Agreement upon written notice to the assigning Party. In the event of such a termination, we will refund to you any fees you prepaid for the remainder of the then-current Order Term.
Force Majeure Event. Except for payment obligations, neither Party will be held responsible for any failure or delay of performance due to a Force Majeure Event, and each Party will use reasonable efforts to mitigate the effect of any Force Majeure Event, including taking reasonable steps to follow its normal disaster recovery procedures. If a Force Majeure Event continues for more than 30 days, you or we on written notice may cancel the affected portions of the Order Agreement, and we will reimburse you for any corresponding prepaid fees for such cancelled portions.
Any notice delivered by us to you under the Order Agreement will be delivered via email, regular mail or postings on the BlackSky Website. Legal notices to us should be sent to BlackSky Technology Inc., Office of the General Counsel, 13241 Woodland Park Road, Suite 300, Herndon, VA 20171 or by email to [email protected] (with confirmation of receipt). Each Party may designate its applicable contacts for notices in an Order Agreement or in a separate writing.
All provisions of the Order Agreement that reasonably may be interpreted as surviving any expiration or termination of the Order Agreement will so survive, including Sections 3, 5, 8, 9, 10, 11, 12.3, 13 and 14.
Binding Agreement; Third Party Beneficiaries.
The Order Agreement will be binding upon the Parties and their heirs, successors and permitted assigns. The Order Agreement, and particularly Sections 3, 5, 10 and 11 will apply to and protect our licensors and Service Providers to the same extent they apply to and protect us, all of whom will be direct and intended third party beneficiaries of the Order Agreement.
All provisions of the Order Agreement apply to the maximum extent permitted by applicable law. If any provision is held to be unenforceable, the remainder of the Order Agreement will remain in effect and such unenforceable provision will, if reasonable to do so, be restated to reflect as nearly as possible the original intent of the Parties or, if not reasonable to do so, be deemed to be excluded from the Order Agreement.
No Waiver; Rights Cumulative
No delay or failure in exercising any right hereunder and no partial or single exercise thereof will be deemed a waiver of such right or any other rights hereunder. No consent to a breach of any term of the Order Agreement will constitute a consent to any prior, subsequent or other breach. The rights and remedies provided in the Order Agreement are cumulative and the use of any one right or remedy by a Party will not preclude or waive the right to use any or all other remedies. Such rights and remedies are given in addition to any other rights the Parties may have by law or otherwise.
We may provide local language translations of the Order Agreement in some locations. You agree that those translations are provided for informational purposes only, and if there is any inconsistency the English version of the Order Agreement will prevail.
Headings and Counterparts. Headings are inserted for convenience of reference only. To the extent the Order Agreement is executed in writing, the Parties may do so in counterparts, and it may be signed, transmitted and maintained in electronic form.