Terms of Service

1.  Definitions

“5X” means the 5X company described in the “5X Contracting Entity, Notices, Governing Law, and Venue” section below.

“5X Materials” means the Services, Documentation, Feedback, tools, methodologies, processes, protocols, simulations, technologies, and all other tangible or intangible materials (including hardware, software, source code, documentation, methodologies, know how, processes, techniques, ideas, concepts, technologies and data) provided or used by or on behalf of 5X, including any materials used in providing the Services, and all improvements, updates, and derivatives of any of the foregoing.

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity.

This “Agreement” means these Terms, together with all Order Forms.

“Client Materials” means any data, information, platforms, programs, software, reports, dashboards, databases, or any other materials belonging to the Client.

“Documentation” means any user guide, how-to guide, instructions, help, information, and other documentation and information in connection with the Services that are delivered by 5X to Client in electronic or other form.

“Feedback” means any and all suggestions, ideas, enhancement requests, recommendations or other information provided by Client or any third party relating to any 5X products or services.

“Billing Cycle” means from the 1st day of the calendar month until the last day of the calendar month. In the case of a client joining after the 1st day of a month, that month’s billing cycle would be prorated from the day of joining till the end of the calendar month. The following month(s) would be considered as normal billing cycle(s) with no pro-rata given for the platform fee. In the event of Termination, the billing cycle would be considered till the last day of the current calendar month to ensure all fees are calculated and invoiced to the client. For avoidance of doubt, the only time the company would provide a pro-rated payment is at the start of the contract with the client, in case the contract started after the 1st. Both upgrades and downgrades on Platform Plan would be considered as retroactively upgraded or downgraded in the same calendar month, irrespective of the date the plan is amended. Annual plans are not able to be downgraded the full service period is completed.

“Platform Plan” means platform access on a certain tier, each with its own unique pricing and benefits.

“Fees” means the fees charged by 5X for the Platform, vendor pricing or data services as identified on each Order Form. All Fees are non-refundable, non-creditable and non-pro-rateable unless otherwise expressly noted hereunder.

“Platform Services” means access to 5X Self Service Platform on the clients chosen Platform Plan.

“Optional Data Services” means on demand data engineering or analyst hours in excess of included services on the specific Platform Plan, in each case the pricing is set forth in a mutually agreed upon Order Form. If the client is to exceed the services included in their plan, 5X would automatically add an additional data services pack.

“Subscription Term” shall mean a monthly recurring term of access to the Platform until cancelled by the client, except if otherwise agreed in an order form.

“POD” shall mean the group of data engineers (normally two or three) supervised by a experienced technical product manager. This would form part of the company’s included data engineering / analyst hours on the Platform Plan as well as the optional services offering.

“Talent” shall mean any one or more persons (e.g., computer engineer(s), programmer(s) or developer(s)) that 5X engages and assigns to perform certain work as described in the applicable Order Form which would be part of the company’s optional services offering or included data engineering / analyst hours on the specific Platform Plan.

2. 5X Platform / Optional Services

1. Order Forms. This Agreement will be implemented through one or more written orders entered into by the parties or online orders submitted by Client at https://5x.co/ that reference these Terms (collectively, “Order Forms”). An Order Form will generally include a description of the Services as well as the applicable Subscription Term for such Services. Any change to these Terms within an Order Form will apply only to the Services described therein.
2. Platform / Optional Services.  Subject to the terms and conditions of this Agreement, 5X will use commercially reasonable efforts to provide the Services described in the applicable Order Form during the applicable Subscription Term.
3. • Faculty.  5X shall designate one or more employees or contractors that it determines, in its sole discretion, to be capable of serving as a primary contact to act as its authorized representative with respect to the optional Services (“Designated Faculty Member”). 5X may replace or substitute a Designated Faculty Member at any time in its sole and absolute discretion.
   • Support Services.  5X may provide optional support services for an additional fee, as set forth in the Order Form.
4. Faculty
   • It is the Client’s responsibility to ensure it and each Authorized User (as defined below) has appropriate equipment, software, time commitment and availability, and internet connection to enable the Client to receive the Platform or Optional Services. 5X will not be responsible or liable for any failure in the Platform or Optional Services resulting from or attributable to Client’s (including its Authorized Users’) or any third-party’s products, services, negligence, acts or omissions or any Client Materials.
   • Only the Client is permitted to access and use the Platform or Optional Services and solely for its internal business purposes. Use by the Client includes use by the Client’s employees and any authorized consultant working for the Client; provided that, in each of these cases, the person concerned is accessing and using the Services exclusively on the Client’s behalf and with the Client’s authorization (each an “Authorized User“) and as set out in the Order Form. The Client shall be responsible for all access to and use of the Services by Authorized Users.
5. Vendors and Vendor Products.  5X may, in good faith, introduce third party service or product providers (“Vendors”) to and/or for Client (e.g., Narratori, Looker, Fivetran, DBT, Snowflake, Heap, Sigma, Preset, Mixpanel, Amplitude, Hightouch, Datafold, Metaplane, Big Query and other database management, data analytics or communication tools) (such third party services and products, “Vendor Products”) and with Client’s approval or consent enable such Vendor Products on behalf of Client.  Client hereby agrees to comply with the standard terms and conditions applicable to Vendor Products used by the Client (“Vendor Terms”), and Client’s relationship with each Vendor is governed solely by the applicable Vendor Terms. While 5X will provide reasonable assistance to resolve challenges faced by Client in relation to Vendor Products, and may bill Client, recommend certain Vendor Products, provide instructional support or training for Vendor Products and/or provide promotional pricing or trial subscriptions for Vendor Products, except for enabling the Vendor Products, all activities relating to Vendor Products shall be performed by the respective Vendors, and neither party hereunder shall have any liability to the other party in connection with the Vendor Products or any acts or omissions of any Vendors. Where performance of Services depends on Client actions or compliance with any Vendor Terms, then 5X’s provision of Services is conditioned on completion of such actions or such compliance.
6. Talent.  In terms of the Data Engineering / Analyst hours on the Platform Services and/or optional services offering, 5X will use commercially reasonable efforts to select reasonably skilled and qualified Talent. Notwithstanding anything to the contrary herein, 5X makes no guarantees that any Talent will remain a contractor/employee of 5X. If 5X’s relationship with any Talent ends for any reason other than Client’s termination of such Talent, 5X will, subject to the terms of the applicable Order Form, use good faith, reasonable efforts to contract with a suitable replacement within a reasonable period of time so that Client has continuous access to Talent, and such occurrence will not be considered a breach of this Agreement by 5X. Talent by design would be assigned to a specific POD which would ensure business continuity in the event that some talent leave the employment of the company. Client shall have the right to request in writing that any Talent cease performing work for Client at any time, subject to Applicable Laws and payment of the applicable termination fee set forth in the applicable Order Form.

3. Client Duties And Responsibilities

4. Restrictions

1. Restrictions. Client shall not directly or indirectly (a) use any of 5X Confidential Information (as defined below) to create any service, software, documentation or data that is similar to, or competes, with any aspect of the Services; (b) disclose the Services (including Documentation) to third parties or use the Documentation for any reason other than in connection with the Services; (c) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of United States or any other relevant jurisdiction; or (f) permit any third party to engage in any of the foregoing acts.
2. Non-circumvention and Damages.   During the term of this Agreement and for twenty-four (24) months thereafter (the “Restricted Period”), Client shall not, directly or indirectly, encourage, solicit, hire, or otherwise contract or engage for the performance of services, or engage in compensation discussions with any Talent who Client becomes aware of from 5X, or in connection with this Agreement (a “Restricted Talent”). Client also agrees that it will not refer Restricted Talent, directly or indirectly, to any related parties or Affiliates, including without limitation subsidiaries, parent companies, partnerships, holdings or investors without the prior written consent of 5X.  Client acknowledges and agrees that any breach of this Section 4 shall be deemed to be a willful, material breach of this Agreement, shall not be subject to any limitation on liability or exclusion of any form of damages, and shall entitle 5X to injunctive relief in addition to all damages suffered by 5X in relation to such breach and 5X’s response to such breach (including attorney’s fees and investigation costs, lost commercial opportunities, internal costs, and others).
3. Conversion. Client understands that 5X has invested in Restricted Talent and that, in the event Client is interested in directly hiring Restricted Talent, Client must first notify 5X of its intent to directly hire Restricted Talent and, if agreed to by 5X in writing, Client may hire such Restricted Talent notwithstanding Section 4.2 and shall pay to 5X a fee of fifty thousand US dollars (US$50000) per individual (the “Conversion Fee”). Aggregate spend applied to a previous conversion shall not qualify for future conversions. Such Conversion Fee shall be paid by Client within three (3) days of hiring or engaging Restricted Talent.
   • The Conversion Fee represents a reasonable estimate of 5X’s expenses incurred to recruit, test, interview, engage on an independent contractor basis, and assign Restricted Talent. The parties mutually agree that the Conversion Fee is in no way a penalty or constraint upon the commercial activities or prospective employment of Client or Talent; only reasonable compensation for 5x’s lost commercial investment in its Service in originally sourcing and screening Restricted Talent.
   • Subject to the prior written approval of 5X, a reasonable wind-down period (as determined by 5X in its sole discretion), and full payment of the Conversion Fee, Client may, during the Restricted Period, directly engage or employ Restricted Talent.  

5. Proprietary Rights

1. Client Agreement with Talent. Client shall provide its desired form of invention assignment and confidentiality agreement for Talent to sign in connection with the performance of any work by Talent on behalf of Client; 5X shall use commercially reasonable efforts to assist Client and Talent in entering into such an agreement. If Client does not enter into such an agreement with Talent, then (i) Talent will be subject to intellectual property assignment provisions with respect to work product it produces for Client pursuant to Talent’s agreement with 5X; (ii) subject to Client paying all fees due and fully performing Client’s other material obligations hereunder, 5X hereby assigns to Client all of 5X’s right, title, and interest in and to such work product,, and (iii) Client shall be a third-party beneficiary of Talent’s confidentiality obligations to 5X, solely with respect to the confidential information of Client.
2. Underlying Technology.  The assignment in Section 5.1(ii) above does not include any Underlying Technology. “Underlying Technology” means (a) 5X’s existing or background technology, 5X’s confidential and proprietary methodologies, know-how and intellectual property existing now or otherwise arising outside of work under this Agreement, (b) any derivatives, improvements, enhancements or extensions of the foregoing that are conceived, reduced to practice, or developed in performance of this Agreement that have general applicability in 5X’s business, and (c) any intellectual property relating to any of the foregoing. To the extent any Underlying Technology is incorporated into or otherwise reasonably necessary to use any work output generated by Talent, then, subject to the terms and conditions of this Agreement, 5X grants to Client a non-exclusive, royalty-free, perpetual, irrevocable, sublicensable, worldwide license to fully exercise and exploit the Underlying Technology and to make derivative works of the same in connection with the exploitation of Talent’s work product. 5X will (and will use commercially reasonable efforts to cause Talent to) reasonably assist Client, at Client’s request and expense, to further evidence, record, perfect, and maintain any rights so assigned.
3. Platform or Optional Services.  Except for the limited rights and licenses expressly granted to Client in Sections 5.1 and 5.2 hereunder, no other license is granted, no other use is permitted and 5X (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Services and all Underlying Technology and 5X Materials.
4. Feedback.  All Feedback shall be owned by 5X, and Client hereby assigns all right, title and interest in and to such Feedback to 5X.
5. General Knowledge.  Notwithstanding anything to the contrary herein, Client agrees that 5X may reuse all generalized knowledge, experience, know-how, reports, analyses, works, and technologies (including ideas, concepts processes and techniques) related to or acquired during provision of the Services under this Agreement, provided that 5X may not use such information in any manner that identifies Client (collectively, “General Knowledge”). General Knowledge will be solely 5X’s Confidential Information.
6. Product Improvement and Aggregated Statistics.  Client further agrees that 5X has the right to aggregate, collect and analyze Client data and other information relating to the use or performance of the Services and shall be free (during and after the term hereof) to (i) use such data and other information to improve 5X’s and its affiliates’ products and services, and (ii) disclose such data and other information solely in an aggregated and anonymized format that does not identify Client or any individual.

6. Confidentiality

7. Payments

1. Fees. Client agrees to pay 5X all Fees and expenses in the amounts and methods specified in the applicable Order Form. 5X may provide Client with written notice of a change or increase in pricing and such modified pricing will become effective thereafter at the time of the renewal.
2. Billing cycle. Clients would be billed monthly on the 1st of every month for monthly plans, and yearly in advance for annual plans. In the instance where client signed up after the 1st of the month, 5X would ensure pro-rata billing of the Platform Services.
3. Taxes.  Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying all Taxes associated with the Services under this Agreement and all Order Forms, excluding Taxes based solely on 5X’s net income. If 5X is deemed to have the legal obligation to pay or collect Taxes for which Client is responsible, the amount shall be invoiced to and paid by Client, unless Client provides 5X with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. Payment Terms.  All amounts (in USD) due hereunder shall be paid monthly on the 1st via credit card, or in the case any other method within 5 business days (without deduction, set-off or counterclaim). In terms of the optional services, 5X will issue invoices on the 1st of every month after this service pack was added to the Client. Same terms of payment apply which would be on the 1st via Credit Card or within 5 Business days for any other method of payment. Where the 5X is late in issuing the invoice, the Client would still have 5 working days to pay. Late payments will be subject to the lower of 1.5% per month penalty, or the maximum amount permitted by applicable law, compounded monthly on all outstanding overdue balances. Where the payment date falls on a public / bank holiday, the Client agrees to bring forward the payment to an earlier date when such payment is possible.
5. Disputes.  Client must contact 5X no later than 30 days after receipt of an invoice in which Client believes there is an error in order to receive an adjustment or credit. Client agrees that failure to submit a timely dispute shall result in the waiver of Client’s right to dispute the invoiced amount.

8. Warranty And Disclaimers

1. General. Each party represents and warrants that: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
2. Client.  Client represents and warrants that (a) it will comply with all applicable laws, rules and regulations; and (b) it will only use the Services in accordance with this Agreement.
3. Disclaimers
   • No Warranties.  The SERVICES ARE PROVIDED “AS IS.” 5X DOES NOT WARRANT THAT THE SERVICES RESULT IN ANY OUTCOME, OR THAT THEY WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, 5X HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
   • Vendors.  5X shall not be liable for any Vendor Products or Vendor commitments. The 5X cannot guarantee the continued availability of Vendor Products and may cease providing Services reliant on such Vendor Products without entitling Client to any refund, credit, or other compensation (e.g., without limitation, if a tool or service becomes inoperable through no fault of 5X).
   • Client materials. Client shall not provide 5X with access to Client Materials. 5X is not responsible for any disclosure, modification or deletion of any Client Materials. 5X expressly disclaims any liability in connection with therewith, and Client is solely liable for any errors, loss, or any other damage to the Client Materials even if such errors, loss, or other damage is caused by the 5X.

9. Limitation Of Liability

10. Indemnity

11. Limitation Of Liability

1. Term. The term of this Agreement will commence on the effective date of the subscription term and continue until terminated as set forth below. In terms of the optional services offering, except as set forth in the applicable Order Form, the term of each Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal of at least thirty (30) days notice.
2. Termination; Suspension.  (a) Subscription term can be cancelled at any-time (except if specified otherwise in the order form) and access would remain until the end of the current billing cycle, fees would also be payable until last day of subscription, (b) The optional services agreement may be terminated by either party if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (or 10 days in the case of non-payment) after receiving written notice of such breach from the non-breaching party; and (b) this Agreement may be terminated by either party upon written notice to the other party at any time if there are no outstanding Order Forms. Termination of this Agreement shall terminate all outstanding Order Forms. Without limiting its rights and remedies hereunder, or at law or equity, 5X may suspend the Services in the event of any unpaid or overdue payments.
   
   Because Client’s relationship with Vendors is pursuant to the applicable Vendor Terms, termination of this Agreement will not automatically terminate Client’s access to Vendor Products.
3. Effects of Termination.  Except as otherwise set forth on an applicable Order Form, any expiration or termination of any Order Form or this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) 5X shall cease providing the Services and (c) any terms or conditions that by their nature should survive such termination will survive, including terms and conditions relating to payment, proprietary rights or restrictions, confidentiality, disclaimers, indemnification, limitations of liability and termination and the general provisions below.

12. General Provisions

1. Entire Agreement.  This Agreement (including the Order Forms) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall control. This Agreement supersedes any forms, order forms, invoices, policies, or other terms and conditions provided by either party. Except as set forth in Section 12.8, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English, which language shall be controlling in all respects. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein or at such other addresses designated by written notice.
2. 5X Contracting Entity, Notices, Governing Law, and Venue.  The 5X entity entering into this Agreement, the address to which Client should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit (if any) will be set forth in the applicable Order Form. 5X may extend the rights granted hereunder and/or delegate its obligations hereunder to any of its Affiliates. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
   • Notices to Client may be sent to the address listed on the applicable Order Form or email address provided by Client when it creates its account with 5X.
   • Notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon confirmed receipt, if sent for next day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested.
3. Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 4 (Restrictions), Section 5 (Proprietary Rights) or Section 6 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
4. Force Majeure.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control including, without in any way limiting the generality of the foregoing, fire, explosion, pandemic, earthquake, storm, flood, strike, war, insurrection, riot, act of God or the public enemy, failures in any telecommunications, network or other service or equipment that are not within a party’s reasonable control, unauthorized access, breach of firewalls or other hacking by third parties, instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement), the affected party’s performance shall be excused or extended for the period of delay or inability to perform due to such occurrence.
5. Publicity. Client hereby grants 5X a limited, non-exclusive license to use Client’s name and logo to identify Client as a customer of 5X, including on 5X’s public-facing website and in marketing and promotional materials.
6. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party’s written consent, not to be unreasonably withheld. However, without consent, 5X may assign this Agreement to any successor to all or substantially all of its business or assets that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties.
7. Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
8. Amendment. 5X reserves the right in its sole discretion and at any time and for any reason to modify these Terms. Any modifications to these Terms shall become effective upon posting on 5X’s website, provided that if Client has paid for a subscription to the Services, then such modifications will be effective with respect to such subscription on the date of Client’s next subscription renewal. It is Client’s responsibility to review these Terms from time to time for any changes or modifications. If Client does not agree to the modified terms, Client may provide notice of Client’s non-renewal at any point prior to the Client’s next renewal.

13. Security

14. Confidentiality

15. Availability

16. Service Level Agreement