Terms & Conditions
ACTIONABLE SCIENCE – GENERAL TERMS
THESE ACTIONABLE SCIENCE - GENERAL TERMS OF SERVICE (THE “AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT MADE BETWEEN YOU, AN INDIVIDUAL OR ENTITY (“YOU”) AND ACTIONABLE SCIENCE INC (“ASC” OR “WE” OR THE “COMPANY”). PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE USING THE SERVICE. BY SIGNING UP FOR THE SERVICE OR EXECUTING AN ORDER FORM, YOU HEREBY ACCEPT AND AGREE TO THESE TERMS. ASC AND YOU MAY BE REFERRED TO IN THIS AGREEMENT, INDIVIDUALLY, AS "PARTY" AND COLLECTIVELY, AS "PARTIES".
1. DEFINITIONS. Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Section.
- “Affiliate” means, any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with Employer, where “control” means the ownership of at least fifty percent (50%) of the voting interests of such entity or the powers to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
- “Annual Subscription” a Subscription of one (1) year intervals, which will be automatically extended for subsequent one (1) year period.
- “Asc Cloud Data Processing Agreement” means either Asc Data Processing Addendum for GDPR available here or Asc CCPA Addendum, available here, as applicable.
- “Documentation” means the written and/or electronic end user or technical documentation pertaining to the Service as provided by ASC.
- “Eligible Features” means those features and functions of the Service that are eligible for use with respect to a Subscription Level purchased by Customer. A list of eligible features included in each Subscription Level of the Service is available on https://www.rezolve.ai/platform". Each is subscribed separately by signing up for the Service. Asc may, from time to time, modify the eligible features of a Subscription Level during a Subscription Term, provided that such modification shall not materially derogate the functionality of the Service.
- “Intellectual Property Rights” shall mean any and all rights existing from time to time under patent law, copyright law, trade secret law, moral rights law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, modifications or corrections thereto, including all derivative works thereof, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
- “Monthly Subscription” a Subscription of one (1) month intervals, which will be automatically extended for subsequent one (1) month periods.
- “Order Form” means an ordering document, whether by way of an online registration to the Service or by way of another document between the parties, that identifies the commercial terms of a purchase of a Subscription to the Service, including the applicable Subscription Level, Subscription Term, and the associated Fees.
- “Report” means output of the Service which presents data in a visual and/or textual manner.
- “Service” means Rezolve, an online software-as-a-service platform managed and provided by Asc, comprising various tools and Asc proprietary Software. The Service includes those Eligible Features applicable to the Subscription Level You registered for or as set forth in the applicable Order Form, and may also include access to certain third-party services. The Service will also include the Licensed Software, where applicable.
- “Software” means Asc software that is licensed for your use as part of the Service, including any software which is designated to be self-hosted by you and interoperate with the Service (which will also be defined as “Licensed Software” were applicable). Software includes any and all updates and upgrades that are made generally available by Asc to its customers during the applicable Subscription Term. To remove any doubt, this includes the Software and its binary code, compilation of data, or visual display resulting from the operation of the Software, and any associated materials, specifications and documentation.
- “Subscription Level” means the Eligible Features you will be entitled to use in connection with the Service.
- “Subscription Term” means the effective term of a Subscription.
- “Tenant” means a logically separated cloud SaaS environment set-up for you and managed by Asc.
- “Users” means the end users of the Service, consistent with Your Subscription Level, which may be Your employees or independent contractors.
- “Website” means Asc website at https://www.rezolve.ai and https://actionable-science.com/
2. THE CLOUD SERVICE
- Subject to the terms and conditions of this Agreement, including the registration and payment of the applicable Fees, and solely during the applicable Subscription Term, You will be granted with a non-exclusive, non-transferable, limited and fully revocable right to access and use the Service solely for Your use.
- Users will be subject to additional end user terms. Each User must agree to and abide by the applicable end user terms, or else such User’s access to the Service may be terminated in Asc’s sole discretion.
3. RESTRICTIONS ON USE. Except as expressly permitted by this Agreement, You shall not, nor permit anyone else to, directly or indirectly:
- allow any person or legal entity other than Users to access or use the Service;
- attempt to decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats, programming or interoperability interfaces of the Service;
- modify, convert, alter, change, manipulate, divide, part or revise the Service, or any part thereof;
- assign, sublicense, resell, transfer, distribute, pledge, loan, lease, market, rent, or use the Service in any service bureau arrangement, facility management or third-party training, or otherwise share Your rights under this Agreement with any third party;
- circumvent, disable or otherwise interfere with security-related features of the Service or features that enforce limitations on its use;
- delete or in any manner remove or alter our trade names, copyright, trademarks, service marks, logos, domain names, and other distinctive brand features and notices;
- use the Service to transmit, distribute, or otherwise make available through or in connection with the Service, any computer code, artifact, component or any software to any third party which is not Yours or Your Affiliate’s;
- transmit any malicious code, viruses, worms or other items of a destructive or deceptive nature into or in connection with the Service;
- access or use the Service for the purpose of bringing an intellectual property infringement claim against Asc or for the purpose of creating a product or service competitive with the Service.
- access or use the Service in a manner that does not comply with the Documentation and/or with Asc’s specific instructions;
- export any underlying software of the Service or any other software or data in violation of export administration regulations of the United States or any other applicable country; and
- unless we have entered into a separate agreement with you, use the Service for any purpose or in any manner: (i) involving information that identifies or can be used to identify a natural person; or (ii) otherwise may be deemed to be personal data or personal information under applicable laws or regulations, including, without limitation, (A) information relating to biometric or genetic data, health, racial or ethnic origin, political opinions, religious or philosophical beliefs, sex or sexual orientation, trade union membership, or personal payment or financial information, (B) consumer reports as defined in the Fair Credit Reporting Act, as amended (“FCRA”), (C) nonpublic personal information as defined under the Gramm-Leach-Bliley Act, as amended, (D) protected health information as defined under the Health Insurance Portability and Accountability Act, as amended (“HIPAA”) that has not been de-identified in compliance with HIPAA, or (E) special categories of personal data as defined in the General Data Protection Regulation, as amended (“GDPR”).
We may suspend Your access to the Service if We believe that Your use of the Service is in breach of the restrictions set forth in Section 3, or if it may cause damage to Your Instance or to the Cloud Platform. We will use reasonable efforts to notify You of such suspension in advance and We may provide reasonable assistance to assist You in the remediation of such violation or to mitigate such risk to the Service.
4. REGISTRATION TO THE SERVICE; SUBSCRIPTION
- You may register for a Subscription to the Service: (i) via the Website by creating a username and a password and providing Asc with other information required by Asc for the purposes of granting you access to use the Service; or (ii) by entering into an Order Form.
- When registering for a Subscription, You will be required to select the Subscription Level and the Subscription Term (if applicable). Unless otherwise set forth in an Order Form, the Subscription will be an Annual Subscription and it will remain in effect until cancelled or terminated as set forth in this Agreement.
- You and are responsible for maintaining the confidentiality of Your login credentials to the Service and for all activities that occur under Your Instance of Morsel. You agree to immediately notify Asc of any unauthorized use of the Service or any other breaches of security related to Your Instance, of which You become aware.
- If You are registered for a Monthly Subscription, You may choose to upgrade or downgrade Your Subscription Level through the Service.
- Trial. We may offer a free trial subscription to the Service to all or some Subscription Levels and to all or some Eligible Features, at Asc’s discretion (“Trial Version”). The Trial Version, if any, shall commence on the date that We issue You with the initial login credentials and the applicable license to use the Service under at the respective Subscription Level, and will conclude at a time and date specified by Us at our discretion (the “Trial Period”). In addition, the Trial Version shall grant You the ability to use an amount of data (for both storage and transfer) and other System Resources as shall be defined by Us at our sole discretion and may be limited to certain Cloud Platforms. You acknowledge and agree that the terms of this Agreement are applicable and binding upon You during the Trial Period and that: (i) to the maximum extent permitted by applicable law, Asc disclaims all obligations or liabilities with respect to Trial Version, including any warranty, and indemnity obligations; and (ii) We reserve the right to terminate Your right to use the Trial Version during the Trial Period at any time and for any reason in Asc’s sole discretion, without liability to You.
- You shall pay Us the fees applicable to the Subscription Level as set forth on the Website or on the applicable Order Form. The Fees may comprise of both fixed fees associated with the Subscription (“Fixed Fees”), and fees for consumption of additional System Resources throughout the Subscription Term (the “Usage Fees”, and together with the Fixed Fees, the “Fees”). The Fixed Fees shall be paid at the beginning of the year for the yearly subscription Term in accordance with Your Subscription Level, and the Usage Fees will be charged via the credit card You provided during the registration process or paid against the invoice raised due within a month of the applicable usage, or as otherwise set forth in this Section 5.
- Prepaid Subscriptions. To the extent You and Asc entered into an Order Form for a fixed Subscription Term (and not on a recurring monthly basis) (“Prepaid Subscription”), the following will apply: (i) the Fees will be invoiced upon the commencement of the Subscription Term; (ii) the Fees are nonrefundable and will be allocated to Your account (“Account”) associated with the relevant Subscription; (iii) Your Account credit will be available for use during the applicable Subscription Term and as set forth in the Order Form; (iv) in determining the Fees for the Subscription Term, the Usage Fees will be based on the anticipated usage during the Subscription Term as provided by You; (v) at the end of each month during the Subscription Term, the applicable Fees representing Your usage for such month, will be deducted from Your Account; (vi) to the extent Your actual usage exceeds the anticipated usage and You exhaust all of the prepaid credit in Your Account prior to the lapse of the Subscription Term, You will be invoiced for additional Fees for any additional Fixed and Usage Fees, in accordance with Asc’s applicable price list. Asc will issue You with an invoice at the end of each month with respect to such Fees.
- We reserve the right to modify the Fees at any time, upon a 30 days prior written notice, which notice may be provided by e-mail or via the Service; such new prices shall not apply for an active Subscription during Your current Subscription Term but will apply to Your next renewal.
- Taxes. All amounts payable under this Agreement are exclusive of sales, use, value-added, withholding, and other taxes and duties. You will pay all taxes and duties assessed in connection with this Agreement by any authority, except for taxes payable on Asc’s net income. If any such tax or duty must be withheld or deducted from any payment made by You under this Agreement, You shall gross-up such payment by an amount that will ensure that after applying the required withholding or deduction, We shall receive an amount equal to the payment otherwise required by it.
- In addition to other remedies available to Us, Asc expressly reserves the right to suspend or terminate the Service and notify You of such termination or suspension, in the event You fail to pay the Fees on a timely manner. You further agree and acknowledge that We have no obligation to retain Your Customer Data and that it may be deleted from the Service if You have failed to pay any outstanding Fees when due.
6. CUSTOMER AND ANALYTICAL DATA.
- Customer Data. Provision of the Service and other ancillary services hereunder requires us to monitor traffic and content (including encrypted content) transmitted by Your networks (collectively, the “Customer Data”) and require You to provide, upload, transmit, or make accessible to Us such Customer Data, You hereby agree that We will collect, monitor, store and use the Customer Data, on Your behalf, to provide the Service. You will control the access to the Customer Data and have full administrative control over such data, including the right to view or modify it. As between You and Us, You own and will retain all right, title and interest of any nature, including Intellectual Property Rights, in and to the Customer Data. You hereby grant us a non-exclusive, sub-licensable, royalty-free license to use the Customer Data solely to provide the Service during the Subscription Term and in accordance with any applicable laws. Except as set forth herein, nothing in this Agreement shall be construed as transferring any rights, title or interests in the Customer Data to Us or to any third party.
- Analytical Data. You agree that during the Subscription Term, We may collect, use, store and transmit technical and related information that is being collected from Your use of the Service (“Analytical Data”), including information that may identify Your computer (such as the Internet Protocol Address), browser type, operating system, and application usage. Analytical Data is gathered periodically to facilitate the provision of the Service and the underlying software and the maintenance hereunder, as well as to enable Us to provide you with other services. Any Analytical Data gathered shall be used in the aggregate, anonymously, and Your identity may not be derived from such data. Asc owns all Analytical Data.
7. CONFIDENTIALITY; PRIVACY.
- Each party (the “Receiving Party”) agrees to regard and preserve as confidential all non-public information related to the business activities of the other (the “Disclosing Party”) that is either designated as confidential or was disclosed in circumstances of confidence, or would be understood by the Parties, exercising reasonable business judgement, to be confidential (“Confidential Information”). The Receiving Party agrees: (i) to hold Confidential Information in trust and confidence for the Disclosing Party; (ii) not to disclose Confidential Information to any person, firm or enterprise, or use any Confidential Information for its own benefit or the benefit of any other party, unless authorized by the Disclosing Party in writing; and (iii) to limit access and disclosure of such Confidential Information to the Receiving Party’s personnel or service providers who has a need-to-know and are bound by confidentiality obligations similar to those included herein.
- Confidential Information does not include information that (a) was previously known to the Receiving Party, free from any obligation to keep it confidential, (b) is publicly disclosed by the Disclosing Party either prior to or subsequent to the receipt by the Receiving Party of such information, (c) is independently developed by the Receiving Party without any use of the Confidential Information, or (d) rightfully obtained from a third party lawfully in possession of Confidential Information who is not bound by confidentiality obligations to the Disclosing Party. The Receiving Party may disclose Confidential Information if the Receiving Party is required to do so under applicable law, rule or order; provided that the Receiving Party, where reasonably practicable and to the extent legally permissible, provides the Disclosing Party with prior written notice of the required disclosure. Upon the earlier of: (i) the termination or expiration of this Agreement and (ii) the request of the Disclosing Party, the Receiving Party shall promptly return or destroy all of the Confidential Information of the Disclosing Party at its possession and will erase all such information from its systems, computer networks and other electronic equipment, provided however, that the Receiving Party may retain copies of the Confidential Information: (i) to the extent required to comply with applicable legal and regulatory requirements; and (ii) any information which is electronically stored in automatic backup, and provided further that such Confidential Information will remain subject to the terms and conditions of this Agreement.
- Processing of Personal Data. To the extent Asc processes any personal information on your behalf in connection with the Service, the provisions of the applicable Asc Cloud Data Processing Agreement will apply.
8. DATA SECURITY
- Asc will maintain a security and privacy program which will be in all material aspects in accordance with the relevant industry standards and is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.
- As part of this program, Asc will:
- Implement appropriate environmental and physical security measures to prevent unauthorized physical access to restricted information and the systems managing it.
- Manage and restrict access solely to the resources necessary for users (application, database, network, and system administrators) to perform authorized functions.
- Require strong authentication and encryption that meet the industry security standards for any remote access to Confidential Information and Asc’s network.
- Conduct an annual penetration test on the Service by external third party; executive report of such penetration test may be shared with Customer following the receipt of a written request.
- Employ appropriate measures of identification and access controls to Asc’s systems and data.
- Provide all Asc employees with an appropriate level of periodical training concerning organizational security and privacy measures.
- Conduct risk assessment processes to regularly assess information security risks.
- Compliance, Audit and Certification. Asc shall validate compliance with its security and privacy program annually. Audits of controls and infrastructure shall occur in line with the risk level, Asc’s policies and procedures, legal and regulatory requirements and generally accepted industry practices.
- Data Breach. Asc will notify Customer without undue delay in case of a confirmed Data Breach unless such notification is delayed due to an act or order of any governmental agency or other similar authority. Asc will provide Customer with a description of the nature of the Data Breach, including a description of the measures taken to address the Data Breach (and if applicable measures to mitigate its) and likely consequences of the Data Breach. Asc will reasonably assist Customer with conducting investigations and analysis required by Customer. Asc shall take all necessary steps consistent with good industry practice, and taking into account the severity of the risk, to resolve such Data Breach as quickly as possible and to prevent its recurrence. For the purposes of this section, a “Data Breach” shall mean any unauthorized, accidental or unlawful destruction, loss, alteration, disclosure of, or access to Customer Data.
9. ASC’S INTELLECTUAL PROPERTY RIGHTS.
- All right, title, and interest in and regarding the Service and the underlying software, the Licensed Software, and any related documentation, including associated Intellectual Property Rights, are and shall remain with Asc. Asc’s Affiliates, subsidiaries and/or their respective suppliers and licensors, and except as expressly set forth herein, no other rights or licenses are granted or to be implied under any of Asc's Intellectual Property Rights. This Agreement does not convey any interest in or to the Service beyond the limited right of use expressly granted in Section 2 above.
- Third Party Components. The Service and Licensed Software may use, include or allow access to certain software, files, components, third party services and materials as well as certain software that is subject to open source and/or third-party license terms (“Third Party Components”). A list of open sourced Third-Party Components is available as part of the Documentation and on the Website and may be updated by Asc from time to time (the “About Box”). To the extent You connect Third Party Components to the Service, You expressly acknowledge and agree that, to the extent permitted by applicable law, use of any such third party services in conjunction with the Service or Licensed Software is at your sole risk and without warranty of any kind by us, whether express or implied, including without limitation, the implied warranties of merchantability, non-infringement, performance, and fitness for a particular purpose.
- Asc Marks. Asc’s marks and logos and all other proprietary identifiers used by Asc in connection with the Service (“Asc Marks”) are all trademarks and/or trade names of Asc and/or its Affiliates. No right, license, or interest to the Asc Marks is granted hereunder, and any use thereof shall be based on prior written approval from Asc
- Feedback. If You contact Asc with feedback data (e.g., questions, comments, suggestions or the like) regarding the Service (collectively, “Feedback”), such Feedback shall be deemed to be non-confidential, and Asc shall have a non-exclusive, royalty-free, worldwide, perpetual license to use or incorporate such Feedback into its products.
- Publicity Rights. We may identify You as a Customer of Asc in our promotional materials, website or other public communications. You hereby grant Us a limited and revocable world-wide license to use Your company name and logo in connection therewith. You may request that We stop doing so by submitting an email to email@example.com at any time.
10. SERVICE WARRANTY.
- Asc warrants for Your benefit alone, that the Service, if operated as specifically directed by Asc, shall operate substantially in accordance with the functional specifications in the Documentation. Asc does not warrant however that the use of the Service will be uninterrupted or that use of the Service will be error free.
- Asc’s sole liability and Your sole and exclusive remedy for any breach of this warranty by Asc shall be the Down Time Compensation as set forth in Section 11 hereunder and the repair of the defect that does not meet this limited warranty, within reasonable time.
- The foregoing warranty applies only to failures in operation of the Service that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty maintenance, installation or set-up, by alterations undertaken without Asc’s consent or by faulty repairs; (ii) if the defect would have been avoided by the use of a current update of the Service that Asc makes generally available to its customers; (iii) if the defect is caused by the combination, operation or use of the Service with software, hardware or other materials not licensed hereunder and not conforming Asc’s specifications set forth in the Documentation; (iv) if the Service is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; (v) if the defect is caused due to problems inherent to the use of the internet and/or electronic communications.
- EXCEPT AS SET FORTH IN THIS AGREEMENT, THE LICENSE TO USE THE SERVICE AS SET FORTH HEREIN IS PROVIDED TO YOU ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, PERFORMANCE, AND FITNESS FOR A PARTICULAR PURPOSE. ASC SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO, ALTERATION AND/OR LOSS TO THE CUSTOMER DATA, INCLUDING IN CONNECTION WITH A PLATFORM MIGRATION, EXCEPT TO THE EXTENT THAT SUCH ACCESS OR ALTERATION IS DUE TO ASC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
- YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL USE OF THE SERVICE IS AT YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICE OR ANY OUTPUT THEREOF (INCLUDING ANY REPORTS, LISTS, GRAPHS, INSIGHTS, STATISTICS, ETC.) AS WELL AS FOR ANY DECISIONS YOU MAKE BASED ON SUCH RESULTS. FOR THE REMOVAL OF ANY DOUBT, THE SERVICE AND ANY REPORT SHOULD NOT BE CONSIDERED TO BE LEGAL ADVICE, AND ANY INFORMATION IN A REPORT IS PROVIDED FOR CONVENIENCE PURPOSES ONLY. ASC DOES NOT GUARANTEE: (I) THAT A REPORT IS INCLUSIVE OF ALL INSTANCES, COMPONENTS, LIBRARIES AND DEPENDENCIES OF OPEN SOURCE OR THIRD PARTY SOFTWARE INCLUDED IN YOUR INSTANCE, OR ALL LICENSES AND VULNERABILITIES THEREUNDER; AND (II) THAT THE ANNOTATION OF SUCH INSTANCES, COMPONENTS, LIBRARIES AND DEPENDENCIES, IS FULL AND ACCURATE
- For certain Subscription Levels Asc will also provide you with support services in accordance with our Service Level Agreement, a copy of which is available on the Website.
11. DOWN TIME COMPENSATION.
- If the Service (excluding any third party services used in conjunction with the Service) will not be operational and available to You at least 99.9% of the time in any calendar month, You will be eligible to receive the Service Credits as described below.
- This Down Time Compensation provision states Your sole and exclusive remedy for any failure by Asc to provide the Service.
- Definitions: The following definitions shall apply to the Down Time Compensation provision.
- “Downtime” means, for Service(s), if there is more than a five percent user error rate. Downtime is measured based on Asc’s server-side error rate. “Downtime” does not include the period of a Cloud Migration in which some or all of the Customer Data may be unavailable for use.
- “Downtime Period” means, for a domain, a period of ten consecutive minutes of Downtime, excluding any Scheduled Downtime. Intermittent Downtime for a period of less than ten minutes will not be counted towards any Downtime Periods
- “Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in a calendar month, divided by the total number of minutes in a calendar month.
- “Scheduled Downtime” : ASC would do production installs and upgrades on weekends between 6 am UTC to 8am UTC or Monday 4am UTC to 6am UTC. ASC would try to keep the services up and running as much as possible during these installs too. Scheduled Downtime is not considered Downtime for purposes of this Down Time Compensation provision and will not be counted towards any Downtime Periods.
- “Service Credit” means the following:
Monthly Uptime Percentage
Calendar Days of free Service added to the end of the Subscription term
99.8% – ≥ 99.0%
99.0% – ≥ 90.0%
- You Must Request Service Credit. To receive any of the Service Credits described above, You must notify Asc within thirty (30) days from the time You become eligible to receive a Service Credit. Failure to comply with this requirement will forfeit You right to receive a Service Credit.
12. LIMITED LIABILITY.
- IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY LOSS OR DAMAGE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS AND BUSINESS INTERRUPTION), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 12.1 SHALL NOT APPLY TO YOUR BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 3.
- NOTWITHSTANDING THE GENERALITY OF THE ABOVE, IF A PARTY IS FOUND TO BE LIABLE BY A FINAL JUDICIAL RULING, THE CUMULATIVE LIABILITY THEREUNDER FOR ANY CLAIM RELATING TO THE SOFTWARE AND TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED THE AMOUNT PAID OR DUE BY YOU TO US FOR THE PROVISION OF THE SERVICE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM. THIS SECTION 12.1 SHALL NOT APPLY TO: (A) A BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS; (B) YOUR BREACH OF THE RESTRICTIONS SET FORTH IN SECTION 3; OR (C) YOUR PAYMENT OBLIGATIONS TO US.
- Indemnification by Us. We shall defend You from and against any claim, suit or proceeding based on a claim that the Service or its underlying software, when used as authorized hereunder, infringes any copyright, trademark, patent or other Intellectual Property Right (an “Infringement Claim”), and will indemnity You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts You pay under a settlement we approve in writing of, an Infringement Claim. In the event any Infringement Claim is made or, in Asc’s sole judgment, is likely to be made, We shall use reasonable commercial efforts, at Asc’s expense and discretion, to either: (i) procure for You the right to continue the use Service; (ii) replace the infringing software with non-infringing software programs and support materials of equivalent function and performance; (iii) modify the Service so that it becomes non-infringing without detracting from function or performance; or (iv) terminate this Agreement upon written notice and refund the respective Fees paid by You, prorated to the remaining Subscription Term. This is Your sole and exclusive remedy for any Infringement Claim.
- Asc’s indemnification obligation will not apply: (a) if the Service is modified by You, without Asc’s consent; (b) if the Service is combined with other products, applications, or processes not authorized by Us, but solely to the extent the alleged infringement is caused by such combination; or (c) to any unauthorized use of the Service.
- Indemnification by You. You agree to defend, indemnify and hold Us harmless, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorney’s fees) arising from: (i) Your use, Users’ use, and unauthorized use of the Service; (ii) a third-party claim, suit or proceeding that the use of the Customer Data or Your artifacts within the scope of this Agreement infringes any Intellectual Property Rights of a third party; (iii) claim, suit or proceeding or penalty alleging that the distribution of the Customer Data or Your artifacts within the scope of this Agreement infringes any applicable export laws or regulations.
- Indemnification Process. In the event a claim is brought against a party hereto (the “Indemnifying Party”), the Party seeking indemnification (the “Indemnified Party”) shall promptly provide the Indemnifying Party with a written notice of the claim, provided that, a failure to provide such notification shall only excuse the indemnity obligations of the Indemnifying Party to the extent it was materially prejudiced thereby. Neither Party, as the case may be, shall consent to the entry of any judgment or enter into any settlement or compromise with respect to any Claim without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the above, Asc may enter into a settlement without Your consent, to the extent the only obligation associated with You thereunder is of monetary nature.
14. TERM; TERMINATION.
- This Agreement shall be in effect for the period commencing on the effective date of Your first Subscription and shall terminate upon the earlier occurrence of: (i) the termination of all of Your Subscriptions; or (iii) until terminated otherwise in accordance with the terms of this Agreement (the “Term”).
- A Monthly Subscription may be cancelled by: (i) either Party by the provision to the other Party with a thirty (30) days prior written notice; or (ii) by You through the administrator portal.
- With respect to a free Monthly Subscription, we may also cancel Your Subscription in the event of an Inactive Subscription, by providing you with a written notice, which may be made via email. For the purpose hereof, the term “Inactive Subscription” shall mean a Subscription for which there was no storage or transfer of data during a period of thirty (30) consecutive days.
- Either Party may terminate this Agreement upon the material breach of any term of this Agreement by the other Party (including without limitation, Your obligations to pay all Subscription Fees when due and payable) which is not cured within fourteen (14) days following the delivery of a written notice.
- Either party may terminate this Agreement if the other party: (i) ceases operation without a successor; or (ii) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days thereafter).
- Upon termination or expiration of this Agreement: (i) We will cease from providing the Service hereunder, the licenses granted to You under this Agreement shall expire, and You shall discontinue all further use of the Service and its underlying software; and (ii) We shall delete, within up to sixty (60) days, all Customer Data provided by You pursuant to this Agreement, provided that We will retain any Analytical Information. Upon termination or expiration of this Agreement, You will lose all access to any Customer Data that We may be storing in order to make the Service available to You, and You will be responsible to download Your Customer Data prior to termination or expiration of this Agreement. For the removal of doubt, We will not have any obligation to retain Your Customer Data following the termination of this Agreement. The foregoing shall also apply to the expiration of a Subscription, and solely for the specific tenant and Customer Data associated with such Subscription.
- Provisions in connection with the section entitled – Taxes; Intellectual Property Rights; Confidentiality; Privacy; Limited Warranty; Limited Liability; IP Indemnification and Miscellaneous – shall survive the termination of this Agreement for any reason, as well as any unpaid invoices issued to You prior to such termination or expiration.
- Compliance with Laws. Each Party shall be responsible to comply, at its own expense, with local, state, national and international laws and regulations, including without limitation laws regarding data protection, security and privacy and with all governmental approvals, licenses, permits and authorizations which may be required with regards to its rights and obligations hereunder.
- Governing Law and Jurisdiction.
- With respect to Customers domiciled in North America, South America, or Australia, this Agreement shall be construed and governed in accordance with the laws of the State of California and the United States, without giving effect to any principles of conflicts of laws thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The competent state or federal courts San Francisco, California shall have sole and exclusive jurisdiction over all disputes between the Parties, and the Parties further agree and submit to the exercise of personal jurisdiction of such courts for litigating any such claim or action.
- You hereby agree to service of process in accordance with the rules of such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
- Severability. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
- No Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- Injunctive Relief. Since a breach by a Party of any of its confidentiality obligations contained herein or any unlawful action made in connection with a Party’s Intellectual Property Rights, may result in irreparable and continuing damage to the other party, for which there may be no adequate remedy at law, the breaching Party acknowledges and agrees that money damages will not be a sufficient remedy for any such breach or actions, and therefore the damaged Party will be entitled, in addition to money damages, to seek specific performance and injunctive relief and any other appropriate equitable remedies in connection therewith. Such remedies shall not be deemed to be the exclusive remedies for such events but shall be in addition to all other remedies available at law or in equity.
- Entire Agreement; Assignment. You agree that this Agreement is a complete and exclusive statement of the agreement between the parties and supersedes any proposals or prior agreement, oral or written, and any other communications relating to the subject matter of this Agreement. Either Party may assign this Agreement to (A) any Affiliate, or (B) a successor in a merger, acquisition or other consolidation including, without limitation, the sale of all or substantially all of its stock or assets, or business to which this Agreement applies. The Party assigning this Agreement shall provide the other Party with a notice to that effect as soon as practical.
- Changes to this Agreement. This Agreement including any referenced policies and other documents, may be amended, updated or changed by Us, from time to time. Unless expressly stated otherwise, any modification shall become effective upon the renewal of the respective Subscription. For the avoidance of doubt, and unless otherwise agreed upon in writing, any Subscription is subject to the version of the Agreement in effect at the time of Your Registration or the applicable Order Form. Any terms included in any purchase order, payment portal or otherwise shall not apply to Your use of the Service unless signed by a duly authorized representative of Asc.