Last Modified: August 27, 2019
This Agreement commences on the date that you accept it, in one or more of the following ways: (a) checking a box or clicking on a button (or something similar) when the Service installation process or access page asks you to confirm that you accept this Agreement; (b) installing any Service software (or having the Service software installed on your behalf) and keeping it installed for one (1) business day or more; (c) signing and returning a paper copy of this Agreement (or an Order Form referencing this Agreement) to us, either directly or via your supplier; or (d) sending your supplier or us an email or other written notice confirming your acceptance of this Agreement. Acceptance in any one of the foregoing manners (or other similar means) indicates that you agree to the terms and conditions of this Agreement. If you are accepting on behalf of a company, organization, or other entity, then (1) “you” includes you and that entity, and (2) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
1. PROVISION OF SERVICE AND AQFER TECHNOLOGY
1.1 SALES TERMS. You will purchase, and we will provide, the Service(s) indicated in the Order Form (if applicable). You acknowledge and agree that we do not sell the Aqfer Technology outright; instead, our clients, including you, purchase the right to use the Aqfer Technology to access the client-specific portions of the Service.
1.2 PROVISION OF SERVICE; ACCESS RIGHT. Subject to your payment of the applicable fees, during the applicable Service Term, we will provide you with the Service described on one or more Order Form(s). We have not agreed to provide any services other than those that are clearly identified on an Order Form. The Service includes the standard features and functionality applicable to the Service, and any new features that augment or enhance such Service, excluding any new modules that we market and sell or provide as a separate product or for additional fees. Unless otherwise specified in the applicable Order Form, the Services are purchased on a subscription basis. Subject to the terms and conditions of this Agreement, you have a non-exclusive, non-sub-licenseable, non-transferable right to access and use the Services and display the Aqfer Technology during the applicable Service Term solely for your internal business purposes and subject to the limitation(s) (if any) set forth in the Order Form. You may have employees, agents, consultants and independent contractors access the Service solely in performing services on your behalf in accordance with the provisions of this Agreement, provided that they will be bound by the applicable provisions of this Agreement and you remain responsible for their performance under this Agreement in all respects. No implied licenses are granted hereunder; we reserve all rights not expressly granted hereunder.
1.3 INDIVIDUAL FEATURES AND SERVICES. We agree to make certain Services available to you as specifically set forth in the Order Form. Our Services may be varied, updated, replaced, removed, supplemented or added to over time by us at any time in our sole discretion. We will notify you of a change to the Services in advance only if the change does not preserve, extend, or enhance the features or functionality of the Services. If we notify you of a change as required in this Section and you do not wish to use the Services after notification of the change, you may within thirty (30) days of notification provide us with written notice of termination of this Agreement. If you provide no written notice to us within the thirty (30) day period, you will be deemed to have accepted the change, and this Agreement will continue in full force and effect. Upon termination, your sole and exclusive remedy and our sole and exclusive liability is a refund of any prepaid and unused fees from the effective Services termination date. Nothing in this Section requires us to continue to provide any portion of the Services if it would result in a violation of the rights of any third party or any applicable law.
1.4 TECHNICAL SUPPORT. We will provide technical support for the Service in accordance with Exhibit A hereto (Support and Service Level Agreement) as long as you are entitled to receive technical support as specified under the applicable Order Form. You agree to cooperate with us in our efforts to provide technical support. The manner and methods we use to perform technical support are subject to our sole discretion.
1.5 THIRD PARTY COMPONENTS. Certain third party components provided in or with the Service (“Third Party Components”) are subject to various “open source” or commercial licenses. You may view the list of relevant licenses and/or notices for the Third Party Components on Provider’s website, in the Documentation, or in other Service materials, as such list is updated from time to time. Your use of the Third Party Components is subject to and governed by the applicable Third Party Component license(s) and is not subject to the terms and conditions of this Agreement, except that this Section 1.5, the warranty exclusions and disclaimers in Section 8, and the limitation of liability provisions of Section 9 also govern your use of the Third Party Components.
1.6 SERVICE AVAILABILITY. We will use commercially reasonable efforts to ensure that throughout the applicable Service Term, the Service (and the Aqfer Platform) is available for use by Users at least 98.9% of the time per calendar quarter (the “Availability Service Level”), excluding downtime due to planned scheduled downtime, force majeure events, and mutually agreed maintenance/upgrade windows. Upon our failure to achieve the Availability Service Level, our sole liability and obligations shall be for us to promptly: (a) seek to identify the cause of the failure; (b) use all efforts reasonably necessary to correct the failure and begin meeting the Availability Service Level; (c) take all reasonably necessary actions to avoid the failure in the future; and (d) report to you on actions taken by us pursuant to subsections (a) and (c).
1.7 FEEDBACK. If you provide us with any suggestions, comments or other feedback pertaining to the Service, Site, or Aqfer Technology (collectively, “Feedback”), such Feedback is and will be given entirely voluntarily. We will be free to use, disclose, reproduce, license or otherwise distribute and exploit the Feedback provided to it as we see fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
1.8 OWNERSHIP. We are and will remain the sole and exclusive owner of all proprietary rights, including all Intellectual Property Rights, in and to (a) the Services, Site, and Aqfer Technology, including any modifications or improvements thereto; and (b) any inventions, works of authorship or information that is authored, conceived, reduced to practice, invented or otherwise developed in the course of our performing any services hereunder. You acknowledge that our name, our logo, and the product names associated with the Service are our trademarks (or those of our suppliers or licensors), and no license to such marks is granted herein. No ownership of any of the foregoing or any intellectual property rights therein is transferred or granted to you except for the limited access rights expressly granted herein.
1.9 TRIALS. If you receive free access or a trial or evaluation subscription to the Service (a “Trial Subscription”), then you may use the Service in accordance with the terms and conditions of this Agreement for the period designated in the Order Form or otherwise by us (and if not designated, then for fourteen (14) days) (the “Trial Period”). Upon the expiration of the Trial Period, we may, in our sole discretion, elect to extend the Trial Period (and applicable Trial Subscription) for successive renewal periods equal in duration to the Trial Period then ended; such extension will be evidenced by our continuing to make the Service available to you, subject to the terms of the applicable Trial Subscription described in this Section 1.9. Trial Subscriptions are permitted solely for your use of the Service to determine whether to purchase a full subscription to the Service. You may not use a Trial Subscription for any other purposes, including for competitive analysis. At the end of the Trial Period, the Trial Subscription will expire, and you will have the option to purchase a full subscription to the Service. If you purchase a full subscription, all of the terms and conditions in this Agreement will apply to such purchase and the use of the Service. We have the right to terminate a Trial Subscription at any time for any reason. If you do not purchase a full subscription, we reserve the right to delete your data immediately at the end of the Trial Subscription. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, WE WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR SLA OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS AND ACCORDINGLY THE SECTIONS IN THIS AGREEMENT PERTAINING THERETO SHALL NOT APPLY TO TRIAL SUBSCRIPTIONS.
2. CUSTOMER ACCOUNTS
2.1 ACCESS AND USE OF THE SERVICES. You are responsible for the connection to the Site and Services, including the Internet connection. We are not responsible for any inability to meet our obligations under this Agreement to the extent that such inability results from or relates to your connection to the Site and Services. You may use the Services and Aqfer Technology only in accordance with this Agreement and the Documentation.
2.2 USE RESTRICTIONS. Without limiting the generality of the foregoing, you may not license, sell, distribute, rent, lease, lend, transfer, outsource, or otherwise provide access to any Service or utilize any Service for the benefit of any third party. Further, when using the Services and Aqfer Technology, you may not, and you will ensure that Users do not: (a) decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the Services, Site, or Aqfer Technology, except as permitted by applicable law; (b) upload any Customer Data or any content, data or information that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, hateful, or racially, ethnically or otherwise objectionable; (c) infringe the intellectual property rights of any third party (including by uploading Customer Data to the Service); (d) interfere with or disrupt the Aqfer Technology, the systems we use to host the Site or Service, or other equipment or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or the Services made known to you; (e) use the Services, Site, or Aqfer Technology in the operation of a service bureau or time-sharing service; (f) circumvent the user authentication or security of the Services, Site, or Aqfer Technology or any host, network, or account related thereto, attempt to gain unauthorized access to a network, computer, software application, or any part thereof, misrepresent the source, identity, or content of information transmitted via the Provider’s Service, including by forging network packages or e-mail headers, or use or access the Services in a manner intended to avoid the payment of fees; (g) make any use of the Services, Site, or Aqfer Technology that violates any applicable local, state, national, international or foreign law; (h) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the Services, Site, or Aqfer Technology, or (i) allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, you for access to the Services, Site, or Aqfer Technology. In addition, you may not: (1) use the Services, Site, or Aqfer Technology in any manner that we reasonably believe is abusive or contrary to applicable law; (2) remove, obscure, or alter our copyright notices, trademarks, or other proprietary rights notices on any Services, Site, or Aqfer Technology; or (3) during the term of this Agreement, assert or authorize, assist, or encourage any third party to assert, against us or any of our affiliates, any patent infringement or other intellectual property infringement or misappropriation claim regarding any component of the Services, Site, or Aqfer Technology.
2.3 You may not without written Provider’s prior written consent (which will not be unreasonably withheld or applied discriminatorily), upload Customer Data or any content that contains social security numbers or other state ID numbers, bank account information, credit or debit card information, personal information collected from children under 13, or health or medical information.
2.4 ACCOUNTS. You must create an account to access and use the Services. You agree to provide accurate and complete information when signing up for an account. You are solely responsible for all activities that take place on or through your account, including the acts and omissions of your Users. You will, and you will require Users to, take appropriate security precautions including ensuring appropriately complex passwords, keeping passwords confidential, and regularly changing passwords. You will, and you will require Users to, comply with our security guidelines and procedures made known to you through the Services or otherwise. If you learn of a third party having obtained knowledge of a password without authorization, you will inform us of such unauthorized access without undue delay and promptly change the password. Rights of any User to utilize any Service cannot be shared or used by more than one individual. In addition, a User’s access information and privileges may not be transferred from one individual to another unless the original User no longer requires and is no longer permitted access to the applicable Service, as a result of which that individual is no longer a User. We are not responsible for any unauthorized access to your account, including any unauthorized use of the Services, and you agree to notify us promptly of any unauthorized use of your account. You may use the Services and register for an account with us only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under 18 is strictly prohibited and in violation of this Agreement. You may terminate your account at any time as set forth in Section 6 (“Term and Termination”).
2.5 RIGHT TO MONITOR AND ENFORCE. Provider may, but has no obligation to, monitor any content or traffic on the Services, including your Customer Data, for the purposes of ensuring that the Services are being used in accordance with this Agreement. We may, without notice to you: intercept, block, or remove any content or traffic that we believe violates this Agreement, or applicable laws; and report to the appropriate authorities any conduct by you that we believe violates applicable laws, which may include disclosure of your relevant Customer Data, personal data, or usage history on the Service.
2.6 ACCOUNT SUSPENSION. We may suspend your account and access to the Services, Site, or Aqfer Technology without liability if: (i) we have reason to believe that the Services, Site, or Aqfer Technology have, are being, or will be used in violation of this Agreement; (ii) you fail to make a payment to us when due; (iii) we reasonably believe that your Services, Site, or Aqfer Technology are being accessed or used by third parties without your authorization; (iv) we are required to do so by law; or (v) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. If your account remains suspended for a period of thirty (30) days or more, we may terminate your account without notice to you as set forth in Section 6 (“Term and Termination”). If your account is suspended for any reason, you remain responsible for all fees accrued through the date of suspension. In addition, if your account is suspended due to clause (ii), you remain responsible for all contracted fees, notwithstanding such suspension.
3. CUSTOMER DATA; RIGHTS AND RESPONSIBILITIES
3.1 CUSTOMER DATA DEFINED. You are permitted to submit, upload, or transmit files, code, content, or other data on or through the Services (“Customer Data”). You retain ownership and control of your Customer Data.
3.2 CUSTOMER DATA LICENSE GRANT. By submitting Customer Data on or through the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for us and our subcontractors and service providers to access and use in order to provide the Services. You acknowledge and agree that we may collect, analyze and use anonymized or aggregated Customer Data, or data derived from Customer Data, as well as data about your access and use of our Services, for the purpose of providing, operating, analyzing, and improving our Services.
3.3 YOUR RESPONSIBILITIES FOR YOUR CUSTOMER DATA. In connection with your Customer Data, throughout the term of this Agreement, you represent, warrant and agree that:
a) you have obtained the Customer Data lawfully, and the Customer Data does not and will not violate any applicable laws or a third party’s proprietary or intellectual property rights;
b) the Customer Data is free of all viruses, Trojan horses, and other elements which could interrupt or harm the systems or software used by us or our subcontractors to provide the Site and Services;
d) you are solely responsible for ensuring compliance with all privacy laws in all jurisdictions that may apply to Customer Data that you share with us for the provision of Services under this Agreement;
e) we may exercise the rights to your Customer Data granted under this Agreement without liability or cost to any third party; and
f) the Customer Data complies with the terms of this Agreement (including Section 2.2 (“Use Restrictions”).
We take no responsibility and assume no liability for any Customer Data, and you will be solely responsible for your Customer Data and the consequences of sharing it with us.
3.4 NOTICE OF SECURITY INCIDENT. In the event that Customer Data is disclosed to or accessed by an unauthorized party, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident; and if such incident triggers any third party notice requirements under applicable laws, you agree that as the owner of the Customer Data, you will be responsible for the timing, content, cost and method of any such notice and compliance with such laws.
3.5 BACKUP OF CUSTOMER DATA. We will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
3.6 OUR DMCA POLICY. It is our policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act, and to terminate the accounts of any user that we determine to be a repeat infringer. You agree to cooperate with us and with any third party that alleges that your Customer Data violates a third party’s intellectual property rights.
3.8 SERVICE USAGE DATA. For the sole purpose of providing and improving our Service, we may collect and use data relating to the usage of the Service, including without limitation monitoring and analyzing usage and traffic patterns of our websites and Services.
3.9 DATA RETENTION. The Service allows you to export and back-up Customer Data at your discretion, and we encourage you to do so regularly. We will assist with one extraction of Customer Data free of charge and you will be charged for any other data extraction at our prevailing professional services rates. If you request a Customer Data extraction service prior to the completion of the applicable Services Term, you must first pay all amounts owed us, and to sign a separate written agreement with us to (a) help ensure the security and integrity of such data is maintained, and (b) give us reasonable protection against liability relating to extraction, transfer and potential misuse of such data. Any export or transfer of Customer Data must occur no later than thirty (30) days after expiration or termination of the applicable Services Term. If you intend to have us extract your Customer Data, you must provide us written notice thereof at least thirty (30) days prior to such extraction. We will then initiate the transfer of your AWS sub-account over to you. This transfer process will include opening a ticket with AWS to begin the transfer of ownership to you. As part of the AWS sub-account transfer process, AWS will prompt you to accept the transferred sub-account as its new owner. The ownership change will be complete once that acceptance takes place. If you reject the ownership transfer, or do not indicate their acceptance, the transfer will not be completed. If you do not accept ownership of the sub-account, retention of the Customer Data will not be guaranteed after thirty (30) days past the expiration date of the applicable Service Term.
4. SERVICES FEES AND PAYMENT TERMS
4.1 FEES AND PAYMENT TERMS. Unless otherwise set forth in an Order Form, we may invoice you the fees for Services as described in the Order Form, and you will pay such fees within thirty (30) days following invoice date, unless otherwise set forth in the Order Form. Unless otherwise stated, all fees must be paid in U.S. Dollars. To the extent that any fees are based on your use of the Services, such fees will be determined solely based on our calculations of your Services usage. Any refunds provided by us in our sole and absolute discretion will be applied as a credit only; you will not have any right to withhold or reduce fees under this Agreement or set off any amount against fees owed. You are responsible for all charges incurred under your account, including any fees incurred by anyone with access to your account. Late payments will bear interest at a rate of 1.5% per month, or the highest amount permitted by law, whichever is less, and we may suspend your account if you fail to make a payment when due.
4.2 TAXES. You are responsible for paying any governmental taxes imposed on your use of the Services, including, but not limited to, sales, use, or value-added taxes. To the extent we are obligated to collect such taxes, the applicable tax will be added to your billing account.
5.1 YOUR PRECAUTIONS. You will take reasonable security precautions including ensuring appropriately complex passwords, keeping your passwords confidential and regularly changing your passwords. You will be solely responsible for all activity which takes place on or through your account.
5.2 OUR SAFEGUARDS. We have implemented commercially reasonable and legally compliant technical, administrative, and organizational measures designed to mitigate against accidental loss and from unauthorized access, use, alteration or disclosure of Customer Data. However, you acknowledge and agree that we cannot guarantee that unauthorized third parties will not be able to defeat those measures. You acknowledge that it is not feasible for us to accommodate conflicting data security requirements from multiple customers; accordingly, failure to accommodate your specific data security requests or requirements will not be deemed a breach of this Agreement. For the avoidance of doubt, we do not warrant that your use of the Services is risk-free. Except as specified below, we do not provide representations, warranties, or assurances against interception or access and, provided that we comply with the other provisions of this Section, we will not be responsible for any theft, illegal activity or other unauthorized acts resulting in loss of or damage to you or any User, or your or their computer, data or other property in connection with use of the Services. In addition, we will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, appropriate controls pursuant to our Service Organization Control (“SOC”) 2 audit (or other similar security audit used by us at such time). We will be responsible for unauthorized access and damage to, and for unauthorized deletion, destruction and loss of, Customer Data solely to the extent arising from our breach of its obligations under this Agreement.
5.3 BUSINESS CONTINUITY AND DISASTER RECOVERY. We will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service. We will provide copies of such plans to Customer annually upon request.
6. TERM AND TERMINATION
6.1 TERM. This Agreement will commence on the day it is accepted by you, and will continue for so long as there is an Order Form in effect or as otherwise terminated in accordance with the terms of this Agreement.
a) By Either Party. Either party may terminate this Agreement if the other party breaches any of the provisions of this Agreement, and does not cure such breach within thirty (30) days of receiving written notice of such breach, except that for a breach of Section 2.2 (“Use Restrictions”) or 7 (“Confidentiality”), there will be no cure period.
b) By Us. We may terminate your account immediately upon written notice if you breach Section 2.2 (“Use Restrictions”), or if your account has been suspended for a period of thirty (30) days or more as set forth in Section 2.6 (“Account Suspension”). We may also suspend or terminate your account upon a determination by us that continued use of the Services may result in harm to the Services (including the Site, Aqfer Technology, and/or systems used to provide the Services) or our other customers, or result in a violation of applicable law, regulation, legal obligation or legal rights of another. In such event, in addition to any other remedies available at law or in equity, we will have the right immediately, in our sole discretion, to remove any potentially offending Customer Data from the Service and/or deactivate your user name(s) and password(s), until such time as the issue is resolved or this Agreement is terminated. In addition, we may terminate this Agreement for convenience by providing you with ninety (90) days advance notice.
c) Effect of Termination. If this Agreement is terminated for any reason, your access to the Service will terminate, and you will stop using the Services immediately, (ii) all contracted fees as set forth on an Order Form will be due and payable, (iii) provided that we have not terminated this Agreement pursuant to Section 6.2(a) or (b), we will allow you to export your Customer Data from the Services for a period of thirty (30) days (alternatively, we may provide the Customer Data to you in an industry-standard format) subject to your execution of a separate written agreement to (a) help ensure the security and integrity of such data is maintained, and (b) give us reasonable protection against liability relating to extraction, transfer and potential misuse of such Customer Data; and (iv) you will destroy or return the Confidential Information, if requested by us, certify such destruction or return. Regardless of the basis for expiration or termination of this Agreement, we will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination, unless otherwise agreed in advance by the parties in writing. Notwithstanding any termination hereof, the provisions of Sections 1.8 (“Ownership”), 2.2 (“Use Restrictions”), 3 (“Customer Data; Rights and Responsibilities”), 4 (“Services Fees and Payment Terms”), 5 (“Security”), 6.2(c) (“Effect of Termination”), 7 (“Confidentiality”), 8 (“Disclaimers; No Warranties”), 9 (“Limitations on Liability”), 11 (“Indemnification”), 12 (“Governing Law”), and 13 (“Miscellaneous”) will survive any expiration or early termination of this Agreement for any reason.
7.1 Each party acknowledges that it will receive Confidential Information of the other party pursuant to this Agreement and agrees that it shall exercise at least that level of care that it takes with its own Confidential Information of a similar nature to, but in no case less than reasonable care. The party receiving confidential information (the “Receiving Party”) shall not make any use of Confidential Information of the party disclosing the Confidential Information (the “Disclosing Party”) except as permitted in this Agreement and as necessary to exercise its rights or obligations hereunder. The Receiving Party shall not disclose the Confidential Information to any third parties except to its affiliates, directors, officers, employees, attorneys, auditors, insurers and agents (“Representatives”) with a need to know. Each Representative shall have agreed in writing to comply with the confidentiality obligations hereunder or substantially similar thereto before any disclosure. In addition, a Party may disclose Confidential Information if: (a) the disclosure is required by the rules of a stock exchange; or (b) in the written opinion of counsel, such disclosure is required by an applicable law, rule, regulation or order of a duly empowered government agency or a court of competent jurisdiction, provided that such disclosure may only be made after notice and a reasonable opportunity to intervene is given to the Disclosing Party. The Receiving Party shall notify the Disclosing Party upon learning that Confidential Information of the Disclosing Party has been disclosed in violation of this Agreement. If a subpoena or other legal process in any way concerning Confidential Information disclosed in connection with this Agreement is served upon the Receiving Party, such Party shall immediately notify the Disclosing Party and shall cooperate at the Disclosing Party’s expense in any reasonable and lawful effort to defend and/or contest the validity of such subpoena or other legal process.
7.2 It is expressly agreed that a material breach of this Section by a party may cause irreparable harm to the other party and therefore in addition to any and all remedies available at law, the non-breaching party will be entitled to an injunction or other equitable remedies.
7.3 The foregoing shall not apply if such information: (a) is made available to the public without restrictions through no act or fault of the Receiving Party, (b) subsequently is rightfully received by a Party from a third party without restriction and not in breach of any duty of confidentiality or non-use, (c) is independently developed by a party without reference to the Confidential Information, or (d) is or shall be rightfully in the possession of a Party prior to receipt free of restriction. The terms of this Agreement shall be Confidential Information and neither party shall disclose to any third party without prior written consent, the terms of this Agreement, except as required by law or governmental regulations, as may be necessary to establish rights hereunder, or to a lending institution of a party, prospective investors, or to a prospective purchaser of all or substantially all of the assets of a party, and in each case under a similar obligations of confidentiality..
8. WARRANTIES; DISCLAIMERS
8.1 Warranties. Vendor warrants that the Service will be performed and operate in all material respects with the specifications provided in the Agreement and the applicable Documentation.
8.2 NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES, SITE, AND AQFER TECHNOLOGY, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE AND OUR SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT OF PROPRIETARY RIGHTS, WITH REGARD TO THE SERVICES, SITE, AND AQFER TECHNOLOGY. WE DO NOT REPRESENT OR WARRANT THAT ANY SERVICES OR DATA PROVIDED BY US WILL BE ACCURATE, COMPLETE, ERROR-FREE, OR BACKWARDS-COMPATIBLE WITH PRIOR VERSIONS, OR THAT SUCH SERVICES OR DATA WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS.
8.3 NO RESPONSIBILITY FOR DATA LOSS. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED HEREIN, WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY CUSTOMER DATA, OR ANY OTHER DATA OR INFORMATION. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND SECURING YOUR CUSTOMER DATA.
8.4 NO RESPONSIBILITY FOR ELECTRONIC COMMUNICATIONS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU UNDERSTAND THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF ELECTRONIC COMMUNICATIONS IS ESSENTIAL TO YOUR USE OF THE SERVICE. YOU CONSENT TO OUR INTERCEPTION AND STORAGE OF ELECTRONIC COMMUNICATIONS AND/OR CUSTOMER DATA AND UNDERSTAND THAT SUCH INTERCEPTION AND STORAGE WILL INVOLVE TRANSMISSION OVER THE INTERNET AND OVER VARIOUS NETWORKS THAT MAY NOT BE OWNED, OPERATED, OR CONTROLLED BY US. YOU ACKNOWLEDGE THAT CHANGES TO CUSTOMER DATA MAY OCCUR (INCLUDING ENCRYPTION AND COMPRESSION) IN ORDER TO CONFORM AND ADAPT CUSTOMER DATA TO THE TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS AND/OR DEVICES. YOU ACKNOWLEDGE AND UNDERSTAND THAT, WHEN COMMUNICATED ACROSS THE INTERNET, NETWORK FACILITIES, OR OTHER ELECTRONIC MEANS, ELECTRONIC COMMUNICATIONS MAY BE ACCESSED BY UNAUTHORIZED PARTIES.
8.5 NO RESPONSIBILITY FOR CONTENT OF CUSTOMER DATA. YOU ACKNOWLEDGE AND AGREE THAT WE MAY, IN PERFORMING OUR OBLIGATIONS PURSUANT TO THIS AGREEMENT, BE DEPENDENT UPON OR USE DATA, MATERIAL, AND OTHER INFORMATION FURNISHED BY YOU WITHOUT ANY INDEPENDENT INVESTIGATION OR VERIFICATION THEREOF, AND THAT WE WILL BE ENTITLED TO RELY UPON THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION IN PERFORMING THE SERVICES. IN PERFORMING THE SERVICES, WE MAY BE MAKING RECOMMENDATIONS AND PROVIDING ADVICE, BUT ALL DECISIONS AS TO IMPLEMENTING SUCH ADVICE AND RECOMMENDATIONS WILL BE MADE BY AND WILL BE THE SOLE RESPONSIBILITY OF YOU; WE WILL NOT BE LIABLE TO YOU FOR ANY RESULT OBTAINED OR NOT OBTAINED AS A CONSEQUENCE OF YOUR IMPLEMENTATION OF SUCH ADVICE OR RECOMMENDATIONS.
8.6 HIGH RISK USES OF THE SERVICES PROHIBITED. THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USES WHERE THE FAILURE OF THE SERVICES COULD RESULT IN DEATH, BODILY INJURY, OR ENVIRONMENTAL DAMAGE. YOU MAY NOT USE THE SERVICES FOR ANY SUCH PURPOSES.
9. LIMITATIONS ON LIABILITY.
9.1 LIMITATION ON INDIRECT LIABILITY. SUBJECT TO SECTION 9.3 (“EXCLUSIONS”), UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, WILL EITHER YOU OR WE (OR OUR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS) BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE SERVICES, AQFER TECHNOLOGY, SITE, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, EVEN IF YOU OR WE (OR AN AUTHORIZED REPRESENTATIVE OF OURS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 LIMITATION ON DAMAGES. SUBJECT TO SECTION 9.3 (“EXCLUSIONS”), IN NO EVENT WILL YOUR OR OUR (OR OUR AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSORS’, OR SUPPLIERS’) TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES, SITE, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID OR PAYABLE BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
9.3 EXCLUSIONS. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN SECTIONS 9.1 AND 9.2 ABOVE DO NOT APPLY TO A BREACH OF SECTION 1.5, 1.8, 2.2, 2.3, 3.3, 7, OR TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS. IN ADDITION, THE LIMITATIONS SET FORTH IN SECTION 9.2 WILL ALSO NOT APPLY TO DIRECT DAMAGES TO THE EXTENT ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, OR FRAUD.
9.4 LIMITATIONS ARE A BASIS OF THE BARGAIN. YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED OUR SERVICES, AND ENTERED INTO THIS AGREEMENT, IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US, WITHOUT WHICH THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE DIFFERENT.
10. SERVICES LOCATION; EXPORT RESTRICTIONS.
The Services are controlled and operated from our facilities in the United States. We make no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. By using the Services, on behalf of yourself and all Users, you are consenting to have Customer Data transferred to and processed in the United States.
11.1 BY US. Subject to Section 11.2 (“By You”), we will defend you against any claims brought against you by any third party to the extent alleging that your use of the Services (excluding Customer Data), in accordance with this Agreement, constitutes a direct infringement or misappropriation of any issued United States patent or registered copyright and, subject to Section 11.2 (“By You”) below, we will pay damages finally awarded against you (or the amount of any monetary settlement entered into regarding such claim) with respect to those claims. Our indemnity obligation will not apply if the alleged infringement or misappropriation results from Customer Data or use of the Services in conjunction with any software or service not provided by us, or unlicensed activities or use of the Services in violation of this Agreement, including any claims arising from infringing Customer Data. Our obligation also will not apply if you fail to timely notify us in writing regarding any such claim. We will be permitted to control fully the defense and any settlement of any claim under this Section as long as the settlement does not include a financial obligation on you. Declining our proffered defense, or otherwise failing to cede full control of the defense to our designated counsel, constitutes a knowing and voluntary waiver of our obligations under this Section. You will cooperate fully in the defense of claims. We expressly reserve the right to cease defense of any claim(s) if the Services are no longer alleged to infringe or misappropriate, or are held not to infringe or misappropriate, the third party’s rights. We may settle any claim on a basis requiring us to substitute for the Services alternative substantially equivalent non-infringing services. You will not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation of the Services that is prejudicial to our rights.
11.2 BY YOU. You agree to indemnify, defend and hold harmless us and our affiliates, contractors, employees, agents, and third-party partners, licensors and suppliers from and against all claims, liabilities, causes of action, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of third party claims, suits, actions or proceedings relating to: (i) use of or access to the Services and any related data (including Customer Data) by you or any of your agents, employees, contractors; by anyone using your unique username, password or other appropriate security code; or by end users of your products or services (other than claims for which we are required to indemnify you pursuant to Section 11.1 (“By Us”)); (ii) breach of any provision of this Agreement; (iii) infringement, violation or misappropriation of any third-party right, including without limitation any right of privacy, right of publicity or Intellectual Property Rights, by the Customer Data; (iv) violation of any law, rule or regulation of the United States or any other country by you or any of your agents, employees, contractors, or by end users of your products or services; or (v) any dispute between you and your Users. We will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same. We will notify you in a reasonably prompt manner of claims, suits, actions, or proceedings for which we are seeking the above indemnification, provided that failure to so notify will not relieve you of your obligations except to the extent your ability to defend the claim, suit, action or proceeding is prejudiced by the delay. You may use counsel of your choosing (subject to our written approval). Any settlement requiring us to admit liability or to pay any money will require our prior written consent; and we may join in the defense and participate in any settlement discussions with our own counsel at our own expense.
12. GOVERNING LAW.
12.1 GOVERNING LAW. This Agreement is governed by the laws of the State of California without reference to any conflict-of-laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act (“UCITA”) will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the laws of the State of California or any other state. If UCITA is adopted and enacted in the State of California or any other state and, as a result of such adoption and enactment or any subsequent amendment thereto, you and/or we are required to take any action to effectuate the result contemplated by this Section, including amending this Agreement, you and we each agree to take such action as may be reasonably required, including amending this Agreement accordingly.
12.2 JURISDICTION. You and we irrevocably consent to the personal jurisdiction of the state courts located in Santa Clara County, California and the federal courts in the Northern District of California for any suit or action arising from or related to this Agreement, and waive any right such party may have to object to the venue of such courts.
13.1 NOTICES. Either party may provide the other with notices required hereunder by confirmed email, first class mail, or personal delivery at the other party’s primary place of business. Notice will be deemed given twenty-four (24) hours after email is sent or three (3) business days after the date of postal mailing.
13.2 WAIVER. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by the waiving party.
13.3 REMEDIES. Your and our respective rights and remedies hereunder are cumulative. You acknowledge that the Services and Aqfer Technology contain our valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to us for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy.
13.4 SEVERABILITY; INTEPRETATION. If any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions. Without limiting the generality of the foregoing, the limitation of liability provisions will remain in effect notwithstanding any unenforceability of any warranty or warranty disclaimer provision. Any list of examples following “including” or “e.g.,” is illustrative and not exhaustive, unless qualified by terms such as “only” or “solely.” All references (e.g., to sections, parties, terms, and attachments) are to the sections of, parties to, terms of, and attachments to this Agreement, unless expressly indicated otherwise. All captions are intended solely for your and our respective convenience, and none will affect the meaning of any provision. All references to “written,” “in writing,” or other words of similar import refer to a non- electronic, paper document only, except where electronic mail communication is expressly authorized.
13.5 ASSIGNMENT. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent (which may be withheld in our sole discretion), but may be assigned by us without restriction. Any permitted assignment of this Agreement will be binding upon and enforceable by and against your and our respective successors and assigns, provided that any unauthorized attempted assignment will be null and void and constitute a breach of this Agreement.
13.6 USE OF SUBCONTRACTORS. We will have sole authority in determining the method of operating and maintaining the Services, including the right to subcontract any or all of its responsibilities and obligations; provided, however, that we will remain responsible for our obligations hereunder.
13.7 U.S. GOVERNMENT RIGHTS. The Services are “commercial items,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227. 7202-4 (June 1995), all U.S. Government users acquire only those rights in the Services that are provided in this Agreement.
13.8 FORCE MAJEURE. We will not be liable to you or your Users for delays, failures, or inadequate performance that results from conditions outside of our reasonable control, including, without limitation, acts of God, natural disasters, systemic electrical, telecommunications, or other utility failures, earthquakes, threatened or actual acts of terrorism or war, riots, or governmental acts or orders.
13.9 INDEPENDENT CONTRACTORS; THIRD PARTY BENEFICIARIES. You and we are independent contractors, and nothing herein will be construed as creating a partnership, agency, or joint venture, and neither you nor we will have the ability to bind the other. There are no third-party beneficiaries to this Agreement.
13.10 PUBLICITY. If you are a company, you hereby grant to us the right to use your company’s name, trademarks, and logos solely for purposes of identifying and promoting your company as a client of ours during the term of this Agreement and thereafter. Further, we will have the right to issue a press release regarding the existence of the business relationship between you and us.
13.11 ENTIRE AGREEMENT. This Agreement, together with all incorporated documents and any Order Forms (if applicable) and any additional agreements you may enter into with us in connection with the Services, constitutes the entire agreement between you and us relating to the subject matter herein, and it supersedes all prior or contemporaneous negotiations, discussions, or agreements, whether written or oral, between you and us regarding its subject matter. In the event of conflict or inconsistency between provisions of the components of this Agreement, (a) this Agreement will prevail over the terms of an Order Form unless the terms of the Order Form expressly state that they will prevail over the terms of an Order Form unless the Order Form terms expressly state that they override the default terms of this Agreement; (b) an Order Form will prevail over any schedules, exhibits, and appendices to the Order Form; and (c) a more recent Order Form will prevail over an Order Form agreed to earlier covering the same or substantially similar Services. This Agreement can only be modified in a writing signed by you and us, collectively. Signatures sent by electronic means (facsimile or scanned and sent via e-mail) will be deemed original signatures. Any preprinted terms on a purchase order or similar document are deemed rejected.
14.1 “Aqfer Technology” means our proprietary software and other technology provided via the Services, including any and all enhancements, modifications, updates, upgrades, and derivative works to the foregoing.
14.2 “Confidential Information” means all confidential information disclosed by a party, a party’s affiliates, business partners or its or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by the receiving party without reference to the disclosing party’s Confidential Information.14.3 “Documentation” means the manuals and online help we provide for use in connection with the Service, posted at http://documentation.Aqfer.com. Provider may update the Documentation from time to time.
14.4 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service.
14.5 “Intellectual Property Rights” means worldwide patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how and other trade secret rights, and all other intellectual property rights and similar forms of protection.
14.6 “Order Form” means a document detailing the Service(s) to be provided by Provider, the fees associated therewith, the Service Term, and any other transaction-specific terms and conditions. Any and all mutually executed Order Form(s) are deemed incorporated herein by this reference. Each Order Form is intended to define a separate contract particular to that order, incorporating by reference the terms and conditions of the applicable portions of this Agreement. An Order Form may also contain other terms or conditions which apply specifically to that particular order/contract. You agree that each Order Form will be signed by a representative having the authority to bind you, and that we may presume that such representative has such authority. A binding order is created when we accept and countersign an Order Form signed by you.
14.7 “Service(s)” means the specific services provided by us, as set forth on an Order Form.
14.8 “Service Term(s)” means the Order Form-specified period(s) during which Users may use the Service.
14.9 “Site” means our Internet site through which certain Services may be accessed or made available.
14.11 “User” means your employees, representatives, consultants, contractors, or agents who are authorized to use the Services and have been supplied user identifications and passwords by you (or by us at your request).