These Terms of Use (“Terms”) are made and entered into when you agree to use our Services, FlexAI corporation with its principal offices in Paris, France, (“Provider”) and you (“Client”), (each, a “Party” and collectively, the “Parties”). These Terms of Use and the Order(s)and Exhibits attached hereto or referencing these Terms of Use are collectively referred to as the “Agreement.” Additionally, our Acceptable Use Policy (“AUP”) and Privacy Policy are incorporated into this document and are available here: [links] In the event of any conflict of terms, this Agreement shall be controlling.
1.1 “Affiliate” means, with respect to any entity, any other present or future entitycontrolling, controlled by, or under common control with such entity. For the purposes of this definition,control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of thepower to solely direct or cause the direction of the management or policies of such entity, whetherthrough the ownership of voting securities (or other ownership interest), by contract or otherwise.
1.2 “Application Platform”, “Hosting Platform”, “FlexAI Cloud”, or “Platform” means Provider’s cloud infrastructure bundled with Provider’s proprietary application software including all modules, functions, features identified in an Order or otherwise generally made available by Provider to its customers, and all technology resources and infrastructure (e.g., hardware, third party software, etc.) supporting the Services. The Platform includes all updates, releases, improvements, and corrections to the Application Platform.
1.3 “Software as a Service”, “SaaS”, “Bring Your Own Cloud (BYOC)”, or “Software” means Provider’s proprietary application Software including all modules, functions, features identified in an Order orotherwise generally made available by Provider to its customers that is accessed from your infrastructure via API. SaaS includes all updates, releases, improvements, and corrections to the Application Platform.
1.5 “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”),directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s businessstrategies and practices, methodologies, trade secrets, know-how, pricing, technology, Software, productplans, services, relationships with any third party, client lists and information regarding the DisclosingParty’s employees, clients, vendors, consultants and Affiliates which by its nature would reasonably be considered to be confidential information of the Disclosing Party. In the case of Provider, Confidential Information includes the Software and Application Platform source code and configuration. In the case of Client, Confidential Information includes all Client Data and any information relating to Client’s users.
1.6 “Documentation” means Provider’s user guides and manuals relating to the
Application Platform and SaaS, including on-line help, as updated and amended from time to time.
1.7 “End User Data” means all data and information collected from an end-user of Client or
its Affiliates, including, without limitation, any personally identifiable information or Payment/Billing Data.
1.8 “Implementation Services” means the data migration, implementation, integration (e.g.,
APIs), enhancement, and development services described in an agreed upon Order.
1.9 “Intellectual Property” means all algorithms, application programming interfaces (APIs), apparatus, concepts, Confidential Information, data, databases and data collections, deliverables, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos and slogans), methods, models, procedures, processes, schematics, Software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.
1.10 “Intellectual Property Rights” means all of the following rights (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.
1.11 “Order” means PaaS or SaaS services that Client purchases or agrees to purchase.
1.12 “Services” means the bundle of services purchased by a Client under an Order, including(i) limited access and use rights to the Application Platform or SaaS, (ii) hosting services, (iii) support services,and (iv) any other similar generally applicable services that Provider provides to its customers inaccordance with the Documentation. Services do not include Professional Services.
1.13 “Security Event” is an event where: (i) End User Data or Confidential Information of Client in Provider’s or its subcontractors’ possession or control is accessed or received by an individual or entity not authorized to access or receive such information, (ii) there is a reasonable basis to believe that End User Data or confidential Information of Client in Provider’s or its subcontractors’ possession or control may have been accessed or received by an unauthorized individual or entity, (iii) an individual or entity authorized under this Agreement to use or access End User Data or Confidential Information of Client is using, or reasonably suspected of using, any End User Data or Confidential Information of Client in a manner not authorized under this Agreement, or (iv) End User Data or Confidential Information of Client in Client’s (or its third party contractors’) possession or control is accessed (or there is a reasonable basis to believe may have been accessed) through the Application Platform in a manner or for a purpose not authorized under this Agreement or permitted under applicable laws or regulations.
1.14 “Usage Data” is data about performance, utilization, log data, and systems data.
1.15 “Early Access”, “EA” or “Experimental” means access to features in Software or Hosting Platform that may not be as stable as features available for General Access (see below).. EA requires Clients to acknowledge and accept risks in exchange for early access to capabilities. EA also requires End Users to provide feedback.
1.16 “General Access” or “GA” means functionality in Provider’s Software and Hosting Platform that are deemed production stable and are available for all Clients as part of Provider’s out of the box capabilities.
2.1 Provision of Services and Application Platform. Subject to the provisions of this Agreement, Provider will make available to Client and its end users on a non-exclusive and non-transferable basis purchased Services which may include SaaS, Application Platform, andDocumentation in accordance with the applicable Order.
2.2 Access and Use Rights. Subject to the terms of this Agreement, Provider hereby grants to Client the non-transferable, non-exclusive, non-sublicensable, limited license to use and access the Services (SaaS and or Application Platform) in accordance with the applicable Order(s).
2.3 Orders. Orders will be placed via Providers website at [website link]. This site may also be used to extend or cancel orders. Client agrees that a digital signature either in the form of acceptance by click-the-box (click wrap) or by electronic signature are valid and binding. Provider’s available Service plans and pricing are available at [insert link].
2.4 Limitations on Use. Except as otherwise provided in this Agreement, Client will not: (i) copy, sell, rent, lease, sublicense, or otherwise transfer, distribute, or provide access to the Software, Application Platform or Documentation; (ii) modify, translate, reverse engineer, decompile or disassemble the Software, Application Platform; (iii) create or prepare derivative works based upon the Software or Application Platform; (iv) create any copy of or “mirror” the Software or Application Platform; or (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Software or Application Platform or Documentation. Additional prohibited activities can be be found on our Acceptable Use Policy [insert link]
3.1 Service Levels. The GA Software Services, and or Application Platform will meet or exceed 99% uptime. Should either the Software or the Platform fail to meet 99% uptime, Client will be entitled to recover the applicable amount of service level credits only. Client will be notified by email of any planned downtime with at least 5 days notice. Planned downtime will be omitted from the uptime calculation. EA Services are less stable than GA and will also be omitted from uptime calculations.
3.2 Service Level Disputes. Reasonable disputes on uptime will be negotiated in good faith within 10 days of written notice by the Client to Provider. If it is determined that Services did not meet the uptime requirement Client will be entitled to credits for the difference between actual uptime and promised uptime. Client agrees that credits are the only remedy available without regard to lost opportunities or income resulting from not meeting the SLA requirements.
4.1 Fee and Pricing Updates. You agree that Provider may make changes to Fees and Pricing. Using Providers Services, Platform or Software, will constitute an acceptance of these changes. You agree to be bound to the latest published version of these Terms. If you disagree with any updated Terms, you must stop using Provider’s Services immediately.
4.2 Payment of Fees for Periodic Pricing. For monthly, yearly, and other similar plans (excluding pay as you go plans), all Charges payable by Client, not disputed in good faith, are due and payable within thirty (30) days of Client’s receipt of the applicable invoice. If an undisputed Charge is not paid within ten (10) days after Client’s receipt of a notice from Provider of a past due Charge, a late payment fee of one percent (1.0%) of the balance due or the maximum amount permitted by law, whichever is lower, will be due and payable by Client to Provider for each month such invoice remains unpaid. Client will not have any obligation to pay any disputed amount until thirty (30) days after such dispute has been resolved and the amount owed (if any) by Client has been determined. In the event Client disputes all or any portion of the Charges in any properly submitted invoice, the Parties agree to engage in good faith efforts to promptly resolve any such dispute for at least fourteen (14) days. Provider will continue to provide the Service and perform its obligations until a resolution is reached or the Agreement is terminated in accordance with its terms.
4.3 Pay as You Go Pricing. Pay as you go plans will require a payment prior to provisioning access to Services. This amount will be used as a credit for Client’s use of the Platform and or Software. Once the credit is used completely, Services will cease until the client renews the credit by making further payments. Client data and workload processing will be held for 30 days. If the client does not make a payment within 30 days, the client data and associated processing will be deleted from the Platform.
4.4 Taxes. Except for taxes on Provider’s income or for goods or services used or consumed by Provider in connection with providing the Services under this Agreement, Client will be responsible for all sales, use, excise, duties, tariffs, or any other form of taxes a resulting from Client’s use of the Software and or Application Platform.
5.1 Ownership Rights. Provider retains all right, title and interest in the Software, Application Platform,Documentation and Provider’s Confidential Information, including all Intellectual Property Rightstherein. Further, Client acknowledges and agrees that the Software and Application Platform, derivatives thereof, ideas, methods of operation, modifications, changes, enhancements, improvements, conversions, upgrades, additions, sub-systems and modules included in the Software and Application Platform are proprietary material which contain valuable trade secrets of Provider.
5.2 Ownership of Client Data. Client exclusively owns all right, title, and interest in and to Client’s Confidential Information and the Client Data, including all Intellectual Property Rights therein, irrespective of whether such Client Data is stored or processed through or in the Services or Application Platform.
5.3 Data Compliance.CLIENT, IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL PRIVACY AND DATA PROTECTION LAWS, INCLUDING BUT NOT LIMITED TO GDPR, CCPA, HIPAA, GLBA, PIPL, PIPEDA, LGPD, AND ANY OTHER APPLICABLE LAW. CLIENT’S DATA IS ENCRYPTED IN FLIGHT AND AT REST AND PROVIDER WILL NOT ACCESS ANY CLIENT DATA SETS OR WORKLOADS WITHOUT EXPLICIT PERMISSION FROM THE CLIENT TO PROVIDE CUSTOMER SUPPORT. CLIENT AGREES TO INDEMNIFY AND HOLD PROVIDER HARMLESS FOR ANY CLAIMS OR LEGAL ISSUES ARISING FROM THIS AGREEMENT WITH RESPECT TO ANY DATA SET THAT CLIENT UPLOADED ONTO THE PLATFORM OR MANAGED WITH PROVIDER’S SOFTWARE.
5.4 Return of Client Data. Upon termination of this Agreement, Provider will hold Client’s Data for thirty (30) days so that Client can retrieve Client Data. Thereafter, Provider will delete all Client Data from the Platform.
5.5 Usage Data. Provider will own all rights to usage data and may use this data as Provider solely deems necessary for any purpose including but not limited to billing, security analysis, and quality improvements to Software and Platform. Client acknowledges and agrees that it shall have no right or claim to how usage data is used by Provider.
6.1 Term. The term of this Agreement will commence upon the Effective Date and will be
coterminous with the initial Order. If any subsequent Orders are executed by the Parties referencing this Agreement, this Agreement will continue in effect with respect to the term of such
subsequent Orders. The “Term” means the term of such initial Orders and any subsequent
Orders, including renewals and extensions. Unless otherwise agreed in writing and subject to
Section 4.2 (Payment of Fees for Periodic Pricing), the Term will automatically extend for additional one
(1) period unless Client provides Provider with notice of its intent not to extend within thirty
(30) days of the end of the then-current Term.
6.2 Termination by Provider. Provider may terminate or suspend Services if Provider deems in it’s sole discretion that Client (a) failed to pay on time, (b) acted in bad faith, (c ) violated this agreement, and or Provider’s Acceptable Use Policy [link], or (d) created a security risk or event through negligent or malicious activity.
6.3 Termination by Client. For recurring subscription plans, Client may terminate this Agreement and or any Order in whole or in part, for cause, without penalty or payment to Provider, by giving thirty (30) days written notice to Provider.
For pay as you go plans, this agreement will deemed terminated when Client has no credits available on their account.
6.4 Pro-Rata Refund. If Client terminates the Agreement and has pre-paid any Charges, such Charges will be refunded on a pro-rata basis from the end of the month that marks the termination, not the notice, through the rest of the prepaid period. If client owes any fees as of the termination date, those fees will be due and payable immediately. This section will NOT apply to any credits obtained by Client from Provider as part of a promotion, coupon, Service Credits under Service Level (above), or discount and those credits will be forfeit by Client to Provider on termination.
6.5 Effect of Termination. Except as expressly set forth otherwise in this Agreement, upon termination of this Agreement and following expiration of any Transition Assistance Period: (i) the licenses and rights granted hereunder will be terminated and Client will immediately cease using the Software, Application Platform, Documentation, and Provider’s Confidential Information, (ii) the Software, Application Platform (and associated hosting and support Services) will cease to be accessible to Client or to its users, (iii) upon the Disclosing Party’s written request, the Receiving Party will immediately return all Confidential Information to the Disclosing Party.
7.1 General. During the Term of this Agreement and thereafter, each Party will treat asconfidential all Confidential Information of the other Party. Parties will not use such Confidential Informationexcept as expressly set forth herein or otherwise authorized in writing, will implement reasonableprocedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the otherParty’s Confidential Information and will not disclose such Confidential Information to any third partyexcept as may be necessary and required in connection with the rights and obligations of such Party underthis Agreement, and subject to confidentiality obligations at least as protective as those set forth herein.Without limiting the foregoing, each of the Parties will use at least the same procedures and degree ofcare which it uses to prevent the disclosure of its own confidential information of like importance toprevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement,but in no event less than reasonable care. Except as expressly authorized in this Agreement, neither Partywill copy Confidential Information of the other Party without the Disclosing Party’s prior written consent.
7.2 Exclusions. Except as otherwise provided below, Confidential Information will not include, or will cease to include, as applicable, Confidential Information that the Receiving Party can document and prove: (a) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (b) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights. The exclusions in this section will not apply with respect to End User Data or any other personal or private data that requires protection under applicable laws or regulations.
7.3 Court Order. The Receiving Party may disclose Confidential Information of the other Party only pursuant to the order or requirement of a court, administrative agency, or other governmental body and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure if allowed by law. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed will continue to be deemed Confidential Information as between the Parties.
7.4 Remedies. If either Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other Party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.
7.5 Return. Upon the Disclosing Party’s written request, the Receiving Party will promptly
return or destroy, at the Disclosing Party’s option, all tangible copies of the Disclosing Party’s
Confidential Information.
7.6 Data Security. Provider will: (i) protect the security and integrity of the all Client Data that is collected, accessed, stored or received by Provider in connection with the Software, Application Platform or the performance of the Services, including, without limitation all End User Data. Provider: (x) acknowledges that Provider is responsible for the privacy and security of any and all Client Data and End User Data that Provider or any of its employees, contractors or other representatives, at any time, accesses, stores, transmits, or otherwise possesses; and (y) will comply with all applicable rules, regulations, standards, and security requirements.
7.7 Security Events. Without limiting any obligation of Provider herein, if at any time Provider discovers any Security Event that impacts the Client, Provider will: (i) notify Client of such Security Event within 48 hours and furnish Client with the full details of such Security Event; and (ii) cooperate with Client in any effort, action, or proceeding to protect the End User and/or Client Data and to mitigate and/or remediate the impact of the Security Event, as such may be deemed necessary by Client and/or required by applicable laws or regulations, including breach notification laws and credit reporting laws.
7.8 End User Notice. If any disclosure, use or breach of any End User Data requires Client,
under applicable laws or regulations, to make a disclosure to any third party, Client will be solely
responsible for making such disclosure, including determining the content, methods, and means of such
disclosure. Provider will reasonably cooperate with Client in formulating the disclosure, but Provider will not make any such disclosure at its own initiative without Client’s prior consent. To the extent the breach is caused by or related to a breach of the Agreement by Provider (or its employees, contractors, service providers, representatives, or advisors), Provider will pay all reasonable costs and expenses of: (i) such disclosures and notification (including any legal or forensic expenses, fulfillment service expenses, or call center expense relating to the breach), and (ii) any applicable monitoring and reporting on the impacted individuals’ credit records or the restoration of the impacted individuals’ credit or identity.
All media releases, public announcements and public disclosures by either Party
relating to this Agreement or the subject matter of this Agreement, or using the other Party’s name or
trademarks, service marks or logos, including promotional or marketing material, but not including
announcements intended solely for internal distribution or disclosures to the extent required to meet legal
or regulatory requirements beyond the reasonable control of the Disclosing Party, will be coordinated
with and approved by the other Party prior to release, which such Party may withhold in its sole
discretion. Provider will ensure that any approved publicity materials referring to Client remain
current and accurate, and Client reserves the right to withdraw a previously granted approval and
Provider will cease use of Client's name pending Provider's correction of any inaccurate materials.
9.1 Indemnification. Provider will defend, indemnify and hold Client harmless from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys’ fees court costs, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines and penalties) (collectively, “Losses”) arising out of or relating to: (i) any Security Event arising from Provider’s or Provider’s agents gross negligence or malicious acts, (ii) any failure by Provider to comply with Section 7 (Confidentiality and Data Security), including any Security Requirement; or (iii) any third party claims, demands, or proceedings (a “Claim”) asserting that the Application Platform, Services, or the use thereof (as permitted under this Agreement) infringes or misappropriates any third party’s Intellectual Property Rights. Indemnification shall not apply if Client is found to have caused (actually or proximally) the relevant Security Event.
9.2 Procedure. Client will give Provider prompt written notice within 10 days of any incident or notice of claims from a third party, all Claims for which indemnity is sought hereunder and will provide Provider with: (a) all related documentation in Client’s possession or control relating to such Claims; and (b) reasonable assistance to Provider in the defense of such Claims. Provider will control, at Provider’s sole cost and expense, the defense or settlement of all such Claims and will keep Client apprised of the status of all such Claims. Client will have the obligation to participate in the defense of all such Claims at Client’s sole cost and expense. If any settlement requires any action or admission by Client, then the settlement will require Client’s prior written consent.
9.3 Limitations. Provider will not have any liability or indemnification obligations to Client under Section 9.1 of this Agreement to the extent that any Losses arise directly as a result of: (a) use of Software or Application Platform or Services by Client or any third party in combination with equipment, materials, products or software not authorized by Provider where the Software, Application Platform or Services alone would not be infringing; (b) non compliance with designs, plans, or instructions provided to Provider by Client; or (c ) failure to comply with this agreement or Providers Terms of Use, AUP and or Privacy Policy.
9.4 License, Replacement or Refund. If the Software, Application Platform or Services becomes thesubject of a Claim as set forth in Section 9.1(a)(iii) above or if Provider believes that the Software, Application Platform or Services are likely to become the subject of a Claim, Provider may, at its solediscretion and expense: (i) obtain a license from such third party for the benefit of Client; (ii) replace ormodify the Software, Application Platform or Services (“Replacement”) so it is no longer the subject of a Claim so long as such Replacement performs substantially the same functions as the Application Platform orServices at issue; or (iii) if neither of the foregoing is commercially feasible, terminate this Agreementand refund all outstanding Charges for Services and any pre-paid Charges.
10.1 EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, IN NO EVENT WILLEITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THISAGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICTLIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHERCONTRACT OR TORT CLAIMS) EXCEED THE TOTAL CHARGES PAID BY CLIENT TOPROVIDER DURING THE MOST RECENT 12 MONTH PERIOD PRIOR TO THE LAST EVENTGIVING RISE TO LIABILITY.
10.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.4 IN NO EVENT WILL
EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF INFORMED OF
THE POSSIBILITY THEREOF IN ADVANCE.
10.3 THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL NOT APPLY TO ANY LOSSES AS THE RESULT OF: (A) A SECURITY EVENT OR EITHER PARTIES' FAILURE TO COMPLY WITH SECTION 7 (CONFIDENTIALITY AND DATA SECURITY), INCLUDING ANY SECURITY REQUIREMENTS; (B) INDEMNIFICATION OBLIGATIONS HEREUNDER; (C) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; OR (D) SERVICE LEVEL CREDITS.
10.4 Except as otherwise expressly provided herein, all rights and remedies of the Parties are
separate and cumulative. The waiver or failure of either Party to exercise in any respect any right or
remedy provided herein will not be deemed a waiver of any further right or remedy hereunder.
11.1 Provider represents and warrants to Client that:
(a) Provider is the owner of or licensee of all rights necessary and appropriateto perform the Services and grant the rights hereunder to the Software, Application Platform and other Deliverables;
(b) Provider has the power and authority to enter into this Agreement;
(c) the Services will be performed in a timely, professional and workman-like manner in accordance with industry standards, and with a degree of care, skill and expertise as is required for the provision of services of a similar nature;
(d) the Application Platform and Services will be provided and perform in all material respects the functions and features described in the then current Documentation and as otherwise required under the applicable Order; Provider will promptly repair or replace anynon-conformity associated with the Software, Application Platform or Service so that each are in compliance with the Documentation and this Agreement;
(e) Provider will not violate any law or regulation or any agreements with any third party as a result of performing its obligations under this Agreement;
(f) there are neither pending nor threatened, nor to the best of Provider’s knowledge, contemplated, any suits, proceedings, actions, or claims which would materially effect or limit the rights granted to Client under this Agreement;
(g) prior to making available the Service or Application Platform (including any updates, upgrades, or enhancements) to Client or its Affiliates, Provider will use commercially reasonable efforts to detect and screen out any Virus or malicious code through the use of one or more current virus and malware detection programs. For purposes of this Agreement, “Virus” means a set of computer instructions which are self-replicating or self-propagating and whose purpose or effect is to contaminate software, consume computer resources, or modify, destroy, record or transmit data or programming without the intent or permission of the user, including, without limitation, Trojan horses, worms or like destructive code; and
(h) the Documentation will be sufficient to allow a user qualified in the subject matter of the application to use the Application Platform or Services.
(i) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING, WIHTOUT LIMITATION AND AS PERMITTED BY LAW, WARRANTIES AS TO SATSIFACTORY QUALITY, MERCHANTABILITY, ACCURACY OF RESULTS, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. PROVIDER DOES NOT WARRANT THAT THE APPLICATION PLATFORM OR THE SERVICES WILL BECOMPLETELY ERROR FREE OR THAT THE USE OF THE APPLICATION PLATFORM WILL BE UNINTERRUPTED OR PROBLEM OR ERROR-FREE.
For General Access Services, Provider will provide Client with thirty (30) days prior written notice prior to rolling out any substantive modifications to the Software, Application Platform or Services, except for patches or updates that are intended to fix any Critical or Operational issues that require an immediate fix. For Early Access Services, changes may be rolled out with notice of between 1 day and no notice.
Neither Party will be liable to the other for any loss, damage, delay orbreach in performing any obligations hereunder to the extent resulting from any cause or event beyond thecontrol of the Party being released hereby, including acts of God, telecommunication or power suppliers,and acts or omissions of civil or military authorities, but only to the extent such Party being released didnot contribute to and could not have reasonably prevented or mitigated the impact thereof (e.g., throughredundancies and work-arounds which, in the case of Provider, include execution of the DisasterRecovery Plan and redundant Data Centers). Nothing herein releases Provider from performing itsdisaster recovery and business continuity obligations or being responsible for its contractors orsubcontractors. Provider further agrees that (i) to the extent that any force majeure event prevents orhinders the use of the Services or Application Platform for more than five (5) consecutive days or ten (10)days in any calendar year, then Client may terminate and receive a refund of any pre-paid Charges andfifty percent (50%) of the Implementation Service Charges (less a reasonable allowance for straight-lineamortization over a three (3) year period from first productive use), and (ii) no Charges will apply duringany period in which the Services are not provided or the Application Platform is not available for use dueto force majeure. The Party seeking to be released under this Section will as soon as practicable notifythe other Party of the force majeure event.
14.1 Waiver. Failure to enforce any provision of this Agreement will not be deemed a waiver of any other provision or of such provision on any other occasion. A waiver must be in writing and given by proper notice.
14.2 Assignment. This Agreement will be binding on the Parties hereto and their respective successors and assigns. Neither Party may, or will have the power to, assign this Agreement without the prior written consent of the other Party, except that Client may assign its rights and obligations under this Agreement, in whole or in part, to any then-existing Affiliate of Client or in the event of any merger, sale of all or substantially all of Client’s assets, or other similar transaction; provided that in no event will such assignment relieve Client of its obligations under this Agreement. Subject to and except as set forth in the foregoing, any assignment by operation of law, by order of any court, or pursuant to any plan of merger, consolidation or liquidation, and any change of control of a Party will be deemed an assignment for which prior consent is required, and any assignment made without any such consent will be void and of no effect.
14.3 Export. The Parties will not export, directly or indirectly, any technical data acquired from the other Party pursuant to this Agreement (including the Platform Application) to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.
14.4 Choice of Law and Courts. This Agreement is governed by and construed in accordance with the laws of the State of California, U.S.A. Parties agree that the courts of California shall have sole jurisdiction.
14.5 Severability. If any provision of this Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement will otherwise remain in full force and effect.
14.6 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the address or email address set forth in the Order or to such other address as may be specified by the relevant Party to the other Party in accordance with this Agreement. Such notices will be deemed given: (a) when delivered personally; (b) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (c) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving Party, and on the next business day if sent after normal business hours of the receiving Party.
14.7 Orders. All Orders are subject to and incorporate this Agreement, includingits Exhibits. If there is a conflict between (i) an Order and (ii) these Terms of Use, theseTerms of Use takes precedence, unless expressly provided otherwise. In addition, these Termsand Conditions take precedence over the Exhibits.
14.8 Counterparts. This Agreement may be executed in counterparts, including execution byfacsimile, pdf or other electronic transmission, which, when taken together, will be deemed to constituteone and the same Agreement.
14.9 Compliance with Laws and Regulations. Provider will perform its obligations ina manner that complies with applicable federal, state, and local laws, regulations, ordinances and codes(including identifying and procuring required permits, certificates, approvals and inspections), includinglaws prohibiting discrimination on the basis of race, color, religion, age, sex, ancestry, medical condition,marital status, sexual orientation, veteran status, handicap, or national origin. If a charge occurs of non-compliance by Provider with any such laws, regulations, ordinances or codes, Provider willpromptly notify Client of such charge in writing.
14.10 Entire Agreement. This Agreement (including its Orders and Exhibits)constitute the entire agreement between Provider and Client with respect to the subject matter of thisAgreement, and may only be modified by a written amendment or addendum signed by bothProvider and Client. No employee, agent, or other representative of either Provider or Client has authority to bind the other with regard to any statement, representation, warranty, or other expression unless it is specifically included within the express terms of this Agreement or a written addendum signed by both Provider and Client. All purchase orders, prior agreements, representations, statements, proposals, negotiations, understandings, and undertakings with respect to the subject matter of this Agreement are superseded by this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Terms of Use Agreement as of the date below.
