1. Services and Support
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. All capitalized terms used but not defined herein shall have the meanings as defined in the Order Form.
3. Grant of License
The Company grants Customer, for the duration of the Term, a revocable, royalty free, non-exclusive, non-transferable, global, limited license to Use the Online Services. Customer may only Use the Online Services only if Customer has internet access in order to connect to the Hosting Server(s) on which the Online Services are hosted. The Hosting Server(s) may only be accessed by Customer through use of an API key provided to Customer by Company. Except for the limited license set out in this Agreement, Company grants Customer no other license or right in the Online Services.
4. Proprietary Rights and Non-Exclusivity
- Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Online Services and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services, and (c) all intellectual property rights related to any of the foregoing.
- Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Online Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Online Services and for other development, diagnostic and corrective purposes in connection with the Online Services and other Company offerings, and (ii) disclose such data solely in aggregate or other anonymized form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
5. Ownership of Customer Data and Related Terms
- Customer represents and warrant that Customer owns or has sufficient rights in the Customer Data that Customer uses with the Online Services. Customer grants to Company a non-exclusive, limited, world-wide, fully-paid, royalty-free license to view, use, and copy the Customer Data solely to the extent necessary to support the purposes of this Agreement.
- Customer represents and warrants that Customer has the necessary authorization to collect and transmit the Customer Data (including authorization from the Data Provider in relation to any personally identifiable or biometric information of such Data Provider in a manner as prescribed under applicable law) to Company and for its use in relation to the Online Services and/or its storage on the Hosting Servers.
- Customer is solely responsible for any Customer Data uploaded or processed by Customer by Using the Online Services.
6. Restrictions and Responsibilities
- By Using the Online Services, Customer agrees not to directly or indirectly (i) Use the Online Services for any illegal purpose or in a manner that it violates any law or rights of any person or third party; (ii) permit Use of the same Online Services in a manner not authorised by this Agreement; (iii) disassemble, decompile, unlock, reverse engineer, or decode the Online Services in any manner or create any derivative works based of the Online Services; (iv) rent, lease or lend the Online Services or Use the Online Services for commercial timesharing or bureau use. You may not sublicense, assign or transfer the license or Online Services except as expressly provided in this Agreement; (v) copy any features, functions or user interfaces of the Online Services; (vi) knowingly introduce any malicious code, virus, malware, or any other material that disrupts, slows down or causes the Online Services to malfunction; or (vii) knowingly upload any Customer Data that is unlawful, harassing, threatening, harmful, tortious, defamatory, libelous, abusive, violent, obscene, vulgar, hateful, racially or ethnically offensive, or otherwise violative of applicable law.
10. Warranties and Disclaimers
- Customer acknowledges that Company’s ability to perform the Services is dependent upon Customer’s responsibilities under this Agreement. Therefore, Company shall not be liable for its failure to perform any Services where such failure is related to Customer’s inability to perform under Section 5, after notice to Customer and reasonable opportunity to cure such failure.
- Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Services.
12. Limitation Of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR WILLFUL MISCONDUCCT, COMPANY AND ITS SUPPLIERS AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 3 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.