Terms of Use

PLEASE READ THE FOLLOWING CAREFULLY BEFORE ACCESSING AND/OR USING THE SERVICE (DEFINED BELOW). BY SIGNING THE APPLICABLE ORDER FORM (DEFINED BELOW), OR CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, OR BY ACCESSING AND/OR USING CLARITYQ’S SOFTWARE AS A SERVICE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, ON BEHALF OF YOURSELF, YOUR ORGANIZATION, OR THE ORGANIZATION SPECIFIED UNDER THE APPLICABLE ORDER FORM (“CUSTOMER”), ARE ENTERING INTO A LEGAL AGREEMENT WITH CLARITYQ, INC. A CORPORATION INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE OR WITH ITS OTHER AFFILIATE SPECIFIED UNDER THE APPLICABLE ORDER FORM (“COMPANY”), AND UNDERSTAND AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS SAAS SERVICE AGREEMENT (“AGREEMENT”, AND THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”). COMPANY AND CUSTOMER MAY BE COLLECTIVELY REFERRED TO HEREIN AS THE “PARTIES”, AND EACH INDIVIDUALLY AS A “PARTY”. 

TO THE EXTENT THAT YOU AGREE TO THIS AGREEMENT BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW. 

1. Definitions. All capitalized terms used herein, not otherwise defined, shall have the meaning set forth in the Order Form. The following capitalized terms have the meanings set forth below:
   
   1. “Added Feature” means any optional product, service, feature or functionality which Company makes available to Customer subject to the agreement of additional terms.
   2. “Affiliate” of a party means, any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such party. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect ownership of more than 50% of the voting securities, or the power in fact to direct or cause the direction of the management, of an entity.
   3. “Intellectual Property Rights” means any and all worldwide rights, titles, and interests in and to any (a) patents, inventions, discoveries, improvements, technical information, data, technology, know-how, designs, drawings, utility models, and specifications, formulas, methods, techniques, processes, databases, computer software and programs (including without limitation object code, source code, and non-literal aspects), algorithms, architecture, records, documentation; (b) copyright and works of authorship; (c) personal rights (such as moral rights, rights of privacy, and publicity rights), location (and similar geography-based) rights; (d) trade secret and similar confidentiality rights; (e) trademark, trade name, trade dress and similar branding rights; and (f) other similar intellectual property or technology, in any form and embodied in any media, anywhere in the world, and whether or not protectable or registrable, as well as all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and all goodwill associated with the foregoing rights.
   4. “Order Form” means any order form issued by the Company and agreed to by Customer for the provision of the applicable services granted under this Agreement and which shall include the relevant usage and volume parameters (if applicable), as well as the commercial terms, agreed between the Customer and Company. 
   5. “Subscription Scope” means any Service usage and/or other limitations set forth in the Order Form including without limitation the numbers of Seats.
   6. “Users” means an employee of Customer authorized by the Customer to access and use the Service.
2. Subscription; Access and Use. 
   
   1. Access Rights. Subject to the terms and conditions of this Agreement, the Company hereby grants the Customer a limited, non-exclusive, non-sublicensable, non-transferable and revocable license to remotely access (i.e. on a SaaS basis) the Company's proprietary software (currently called the ClarityQ solution), the Support Services, any other services described under this Agreement or the Order Form (collectively, the “Service”) and use it during the Term (as defined below), solely for Customer's internal purposes. Unless otherwise indicated, the term “Service” also includes any user manuals and documentation (“Documentation”) if provided to Customer in connection with the operation of the Service and any paid-for “add-ons” (to the extent expressly set forth in the applicable Order Form), and any updates or upgrades that may be available by Company to its customers from time to time. Customer may only use the Service in accordance with the Documentation (if any), subject to the Subscription Scope indicated in the Order Form and according to the applicable law. 
   2. Additional Purchases. This Agreement will apply to any new services, features, or functionality which Company may introduce from time to time, except to the extent that they are Added Features which may be subject to additional terms to which Customer will be required to agree and to additional fees which Customer may be required to pay before being permitted to use the Added Feature. Purchases of access to Added Features and/or purchases of additional volume under the Subscription Scope (collectively, “Additional Purchases”), shall be made by mutually signed written addendum to the Order Form or by executing a new order form, in each case according to the pricing agreed between the Parties (or the pricing pre-agreed in the Order Form, if any). 
   3. Seat Setup. In order to access the Service, Customer may be required to set up an administrative account with Company, by submitting the information requested in the applicable Service interface (“Seat”), and each User may need to set up a user account (each, a “User Seat”, and references herein to the “Seat” shall be deemed to include all such User Seats if applicable). Customer warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. Customer shall be responsible and liable for all activities that occur under or in the Seat. Customer will require that all Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer will ensure that all Users comply with the terms of this Agreement at all times and shall be fully responsible and liable for any breach of this Agreement by a User. Unauthorized access or use of the Service must be immediately reported by Customer to the Company.
   4. Hosting. The Service is hosted by a third party hosting services provider(s) selected by Company, and accordingly the availability of the Service shall be in accordance with such hosting providers' then-current uptime commitments.
   5. Support Services. During the Term, and subject to Customer fulfilling all of its payment obligations under this Agreement, Customer will be entitled to receive technical support services as specified in the applicable Order Form and according to the Company internal policy (“Support Services”).‍
3. Professional Services. In the event Customer wishes to receive any additional services from Company which are not included in the Support Services (“Professional Services”) Customer shall send a request to the Company in writing, and, subject to the Company's consent, in its sole discretion, to provide such Professional Services, such Professional Services shall be set out in sequential Statements of Work (that reference a corresponding price quotation to which it relates) to this Agreement, negotiated and executed by both Parties (each, a “SOW”). Professional Services shall be charged in accordance with the fees and payment terms specified within the applicable SOW. Each SOW is hereby deemed incorporated into this Agreement by reference. To the extent of any conflict between the main body of this Agreement and a respective SOW, the former shall prevail, unless and to the extent that the SOW expressly states otherwise. ‍
4. Ramp Up Period. The Company may, at its sole discretion, offer a free trial subscription to the Service, commencing on the Effective Date and ending at the date specified under the Order Form (“Ramp Up Period”). Unless otherwise agreed between the Parties, no fees are due from Customer for use of the Service during the Ramp Up Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE RAMP UP PERIOD THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND THE COMPANY WILL HAVE NO WARRANTY, INDEMNITY OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO THE RAMP UP PERIOD. FOR GREATER CLARITY, COMPANY SHALL NOT BE LIABLE HEREUNDER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES OR LOSSES WHATSOEVER; NOR FOR DAMAGES OR LOSSES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, OR DAMAGES ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE. In the event of any inconsistencies between the terms of this Section ‎4 and other provisions of this Agreement, the terms specified in this Section ‎4 shall prevail with respect to the Ramp Up Period.‍
5. Subscription Fees. 
   1. Subscription Fees. Customer shall pay the Company the subscription fees specified under the Order Form (“Subscription Fees”). Customer shall pay Company any other fees or charges specified under the Order Form, if any (“Other Fees”, and together with the Subscription Fees, the “Fees”).
   2. General. Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (c) all Fees shall be paid by the Customer within thirty (30) days of receipt of invoice. 
   3. Subscription Scope. Customer shall ensure that its use of the Service shall not exceed the agreed Subscription Scope. Customer may increase the Subscription Scope by paying additional fees as specified under the Order Form or as otherwise required by the Company. Company may track the Customer’s use of the Service to verify that Customer is paying for the correct Subscription Scope and invoice Customer for any additional fees due.
   4. Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Company's net income. Any terms or conditions (whether printed, hyperlinked, or otherwise) in a purchase order or related correspondence, which purport to modify or supplement this Agreement (or the corresponding Order Form), shall be void and of no effect.‍
6. Subscription Restrictions. Except as specifically permitted herein, without the prior written consent of the Company, Customer shall not, and shall not allow any User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Service (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with any third party; (iii) disclose the results of any testing or benchmarking of the Service to any third party; (iv) disassemble, decompile, reverse engineer or attempt to discover the Service’s source code or underlying algorithms; (v) use the Service in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vi) breach any of the Company’s Intellectual Property Rights in or to the Service; (vii) remove or alter any trademarks or other proprietary notices related to the Service; (viii) circumvent, disable or otherwise interfere with security-related features of the Service or features that enforce use limitations; (ix) export, make available or use the Service in any manner prohibited by applicable laws; (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Service; and/or (xi) cause or permit any Affiliate or third party to do any of the foregoing. Customer shall be and remain fully responsible for its Affiliates’ compliance with the terms, conditions and restrictions on use contained in this Agreement to the extent any such Affiliates use the Service.‍
7. Customer Data and Account Data.
   1. Customer Data. As between the parties, Customer owns and retains all right, title and interest (including all Intellectual Property Rights) in and to any data or information that originates, resides on, is otherwise processed through or derived from Customer's systems and/or its Affiliates’ systems (or anyone operating on their behalf) and processed by Company or its Affiliates in the provision of the Services (“Customer Data”). Customer shall be solely responsible for the legality, reliability, integrity, accuracy and quality of all Customer Data. Customer hereby grants to the Company a non-exclusive, worldwide, royalty-free right to use Customer Data solely to the extent necessary to perform its obligations and provide the Services, under this Agreement. Notwithstanding anything to the contrary, the Customer represents and warrants to the Company that the Customer Data will not include any personal information and that no personal information shall be transferred to the Company under this Agreement other than contact details of the Users.  As the exclusive owner of the Customer Data, Customer represents, warrants and covenants that to the extent the Customer Data includes any personally identifiable information, Customer has provided all appropriate notices, received all required consents or permits, and/or have any and all ongoing legal bases, and has acted in compliance with any and all applicable privacy laws, to allow Company to use the Customer Data solely in order to perform our Service. Company may however be required to disclose the Customer Data: (a) to satisfy any applicable law, regulation, legal process, subpoena or governmental request; or (b) to collect, store, transfer, and/or process the Customer Data through Company's Affiliates and third party service providers and vendors solely as reasonably necessary to provide the Service. 
   2. Account Data. Customer acknowledges and agrees that Company may collect and process information regarding the configuration, performance, security, access to and use of the Services (“Account Data”) for its internal business purposes including for identity verification, billing, providing support, investigation and prevention of system abuse, maintaining or improving the Services, or any other services, communicating with Users and to fulfill legal obligations. To the extent such Account Data contains any personal data, such as name and business contact details of Users, Company shall process such data in accordance with its then current privacy policy, available at https://www.clarityq.ai/privacy-policy (“Privacy Policy”). Notwithstanding the foregoing, nothing in this Agreement shall restrict Company’s use of Account Data that has been anonymized and/or aggregated, provided that such Account Data does not in any way identify and cannot be reasonably associated with Customer, its affiliates, Users or any individuals connected to Customer or Customer Confidential Information (“Anonymized Account Data”).
   3. Privacy. Each Party has obligations with respect to the security of the Customer Data. Company shall employ administrative, physical, and technical measures in accordance with applicable industry standards to protect (and prevent the accidental loss or unauthorized access, use or disclosure of) Customer Data (if any), in each case, under its control during the Term. No personal information shall be transferred under this Agreement other than contact details of personnel of the Parties (for which each Party shall be considered as the controller under the applicable law) which shall be governed by the Privacy Policy (defined below.(‍
8. Third Party sites. Customer acknowledges that the Services may link to third party websites, applications or services that are integrated, connected or relevant to the Services (“Third Party Services”). Customer’s use of such Third Party Services is optional. To use such features, Customer must either obtain access to the Third Party Service via the third party provider or permit Company to obtain access on Customer’s behalf.  If Customer uses such Third Party Services, it acknowledges and agrees that: (a) any link from the Service does not imply any Company endorsement, approval or recommendation of, or responsibility for, those Third Party Services or their content or operators and the use of such Third Party Services are subject to the terms and conditions of the Third Party Service provider; (b) Customer may be required to grant Company access to its Third Party Services account and/or to grant the Third Party Service provider access to its Company account; and (c) Customer Data may be transferred between Company and the Third Party Service provider as required for the interoperation with the Services. To the maximum extent permitted by law, Company shall not bear and expressly disclaims all responsibility or liability of any kind relating to such Third Party Services, including, without limitation, for any associated costs and disclosure of, access to or other processing of Customer Data by Third Party Service providers. ‍
9. Warranties. Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements, commitments and licenses to which it is bound or violate applicable law. ‍
10. Intellectual Property Rights. 
    1. Ownership. The Service and/or any copies thereof, is not for sale and is the sole property of Company and/or its Affiliates (as applicable). As between the Parties, Company is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the Service and all related intellectual property; and (b) any and all improvements, derivative works, and/or modifications of/to the foregoing, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in this paragraph. Company shall be entitled, from time to time, to modify and replace any module, tool, functionality, or feature of the Service (but not material functionalities, unless it improves the module, tool, functionality, or feature) and user interface of the Service. This Agreement does not convey to Customer any interest in or to the Service other than a limited right to use the Service in accordance with Section 2. Nothing herein constitutes a waiver of the Company’s Intellectual Property Rights under any law. Company reserves all rights not expressly granted herein to the Service. 
    2. Feedback. If Company receives any feedback, whether orally or in writing, including but not limited to questions, comments, suggestions or the like, regarding the Service, whether through use of the Service, or any other communication with Company or its User (collectively, “Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Company and that such shall be considered Company's Confidential Information and Customer hereby (and ensure its Users) irrevocably and unconditionally transfers and assigns to Company all intellectual property rights it has in such Feedback and waives (and ensure its Users waives) any and all moral rights that Customer may have in respect thereto. Feedback shall in no event include Customer Confidential Information. ‍
11. AI Functionalities. As part of the Services, the Company may provide the Customer with various AI-enabled features and functionalities (“AI Functionalities”). In connection with the Customer’s use of the AI Functionalities, the Customer may provide input (“Input”), and receive output generated and returned by the AI Functionalities based on the Input (“Output”). To the maximum extent permitted, you are solely responsible for the Input, including for ensuring that it does not violate any applicable law or this Agreement, any third-party rights, or the terms of third party service providers used within the Services. Customer represents and warrants that it owns or has all the necessary rights and permissions to provide the Input and use it in the context of the Services. In addition, the Customer acknowledges that: (a) the Output is subject to, depends on, and is a function of the Input and as such, taking into account the nature of AI Functionalities and machine learning, the use of the Services may, in some situations, result in Output that does not accurately reflect the Customer's intended output or needs; and (b) that due to the nature of the Services and AI generally, the Output may not be unique and other users of the Services may receive similar output from the Services (for the avoidance of doubt, Customer Data shall only be used for the benefit of the Customer and shall not be provided or processed for the benefit of any other client of the Company). As between the Customer and the Company, the Company and its third-party technology providers and licensors, as applicable, own and reserve all legal rights, titles and interests in and to the AI Functionalities, including all intellectual property and proprietary rights. The Customer shall not: (i) use Output from the AI Functionalities to develop models that compete with the Company or its third-party providers; (ii) use the AI Functionalities to process any health information or any other category of confidential information or sensitive information, as defined under applicable laws; (iii) use any automated or programmatic method to extract data or output from the AI Functionalities, including scraping, web harvesting, or web data extraction; (iv) represent that Output from the AI Functionalities was human-generated when it is not or otherwise violate this Agreement, or the agreements of the Company’s third-party providers; or (v) use any AI Functionalities in violation of applicable laws or third-party rights or for unethical purposes. The Customer is solely and exclusively responsible for: (i) implementing appropriate human oversight of use of the Services and Output, including evaluation of Output for accuracy and appropriateness for the Customer's needs; (ii) all actions it takes based on Output; (iii) taking appropriate precautions when using Output for any decisions that could have a legal or material impact on a natural person, and in this respect the Customer agrees not to rely solely upon the Services and/or the Output for any decisions that may have consequential impact on an individual. The Customer agrees and acknowledges that the Company is not responsible or liable for the Customer's use or reliance on the Output and that the Company expressly disclaims any liability with respect to the Customer's use of the Output.‍
12. Confidentiality. Each Party may have access to certain non-public information or materials of the other Party and/or its Affiliates, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party on a non-confidential basis; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its, and its Affiliates’, respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein; or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.‍
13. LIMITED WARRANTIES. 
    1. The warranties specified under this Section ‎13 do not apply during the Ramp Up Period. The Company represents and warrants that, under normal authorized use, the Service shall substantially perform in conformance with its Documentation (if any). As the Customer’s sole and exclusive remedy and the Company’s sole liability for breach of this warranty, the Company shall use commercially reasonable efforts to repair the Service in accordance with the Support Services. The warranty set forth shall not apply if the failure of the Service results from or is otherwise attributable to: (i) repair, maintenance or modification of the Service by persons other than the Company or its authorized contractors; (ii) accident, negligence, abuse or misuse of the Service; (iii) use of the Service other than in accordance with the Service’s Documentation (if any); (iv) Customer’s failure to implement software updates provided by the Company specifically to avoid such failure; or (v) the combination of the Service with equipment or software not authorized or provided by the Company.
    2. OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE (INCLUDING SUPPORT SERVICES AND PROFESSIONAL SERVICES), ANY REPORTS, OUTPUT, OR OTHER OUTPUTS (“REPORTS”)  ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND COMPANY MAKES NO REPRESENTATION REGARDING ANY INFORMATION, CONCLUSIONS, RESULTS AND/OR TEMPLATES THAT CUSTOMER OBTAINS THROUGH THE REPORTS. THE REPORTS DO NOT CONSTITUTE BINDING RESULTS, AND CUSTOMER MUST DETERMINE FOR ITSELF ANY NEED TO OBTAIN INDEPENDENT ADVICE REGARDING THE SUBJECT MATTER OF THE REPORTS AND/OR ANY RECOMMENDATIONS THAT CUSTOMER MAY OBTAIN. THE COMPANY DOES NOT WARRANT THAT: (i) THE REPORTS AND/OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (ii) THE SERVICE WILL OPERATE ERROR-FREE; OR (iii) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER’S ENVIRONMENT. EXCEPT AS SET FORTH IN THIS SECTION ‎13, THE COMPANY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE.
    3. From time to time, the Company may make beta services available as part of the Service. The beta services are made available “AS IS” and the Company shall have no liability for any harm or damage arising out of or in connection with the beta services. The Customer may choose to try such beta services at its sole discretion. The Company may discontinue beta services at any time in its sole discretion and may never make them generally available.‍
14. LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, NEITHER PARTY, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, SUBCONTRACTORS, AGENTS AND/OR EMPLOYEES SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, OR PROFITS, LOSS OF DATA, DATA USE OR PURE ECONOMIC LOSS.
    EACH PARTY’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE THE TOTAL AMOUNTS ACTUALLY PAID TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. FOR CLARITY, THE LIMITATIONS IN THIS SECTION DO NOT APPLY TO PAYMENTS DUE TO COMPANY UNDER THIS AGREEMENT (INCLUDING THE ORDER FORM), TO A PARTY’S GROSS NEGLIGENCE,WILLFUL MISCONDUCT, BREACH OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS.
    THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY). ‍
15. Indemnification. 
    1. The Company agrees to defend and hold harmless, at its expense, any third party action or suit brought against the Customer alleging that the Service, when used as permitted under this Agreement infringes Intellectual Property Rights of a third party (“IP Infringement Claim”); and the Company will pay any damages awarded against the Customer that are attributable to any such claim, provided that (i) the Customer promptly notifies the Company in writing of such IP Infringement Claim; and (ii) the Customer grants the Company the sole authority to handle the defense or settlement of any such IP Infringement Claim and provides the Company with all reasonable information and assistance, at Company’s expense. The Company will not be bound by any settlement that the Customer enters into without the Company's prior written consent.
    2. If the Service becomes, or in the Company's opinion is likely to become, the subject of an IP Infringement Claim, then the Company may, at its sole discretion: (a) procure for the Customer the right to continue using the Service; (b) replace or modify the Service to avoid the IP Infringement Claim; or (c) if options (a) and (b) are not, in Company’s judgment, commercially feasible, or cannot be accomplished despite the Company's reasonable efforts, then the Company may terminate this Agreement and provide a refund for any amount pre-paid by Customer for such returned Service for the remaining unused period of the Services.
    3. Notwithstanding the foregoing, the Company shall have no responsibility for IP Infringement Claims or for any indemnification obligation related to IP Infringement Claims resulting from or based on: (i) modifications to the Service made by a party other than the Company or its designee if such IP Infringement Claim would not have arisen without such modifications; (ii) the Customer's failure to implement software updates provided by the Company specifically to avoid infringement if such IP Infringement Claim would not have arisen if such updates had been properly implemented; or (iii) combination or use of the Service with equipment, devices or software not supplied by the Company or not in accordance with the Documentation if such IP Infringement Claim would not have arisen without such combination or use.
    4. This Section ‎15 sets forth Customer’s sole remedy and Company’s sole liability and obligation for any actual, threatened, or alleged claims that the Service, the Documentation (if any) or any other subject matter of this Agreement infringes, misappropriates, or otherwise violates any Intellectual Property Rights or any other rights of any person or entity. ‍
16. Term. This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the initial subscription period specified in the Order Form (the “Initial Term”). The Agreement shall be renewed at the terms fees and for the period specified under the applicable Order Form unless terminated earlier as set forth herein (each a “Renewal Term” and together with the Initial Term, the “Term”). In case Customer was granted with an access right to use the Service during the Ramp Up Period according to Section ‎4, this Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the Ramp Up Period (as may be extended solely by Company's explicit prior written approval). Following the Ramp Up Period this Agreement shall be automatically renewed for the applicable Initial Term with the fees specified under the applicable Order Form or as agreed by the Parties, unless the Customer provides the Company with at least thirty (30) days of prior written notice of non-renewal of the Agreement.
17. Termination. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Upon termination or expiration of this Agreement: (i) access right for the Service granted to Customer under this Agreement shall expire, and Customer, its Affiliates, and its Users shall discontinue any further use and access thereof; (ii) Customer, its Affiliates, and the Users shall immediately delete and dispose of all copies of the Documentation (if any) in Customer’s, its Affiliates’, its User’s or any of its representatives’ possession or control; and (iii) Company shall delete all Customer Data without affecting any of the Company's rights to the Anonymized Account Data. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive (including, without limitation, Sections ‎5-‎8, ‎10, and ‎12-‎18). ‍
18. Miscellaneous. 
    1. Entire Agreement; Modification. This Agreement, including any Order Form(s) and any exhibits attached or referred hereto (if any), represents the complete agreement concerning the subject matter hereof. For clarity, it is hereby explicitly agreed by the Parties that any terms and conditions printed, or linked to, within any Customer’s purchase order which are in addition to and/or inconsistent with the terms and conditions of this Agreement, shall be of no effect. 
    2. 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. 
    3. Severability. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. 
    4. Governmental Customer. Any use of the Service by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. 
    5. Customer Reference. Unless otherwise expressly specified in an Order Form, Customer hereby grants Company a revocable right and license to identify Customer as a customer, and use Customer’s name, corresponding trademark, or logo on Company’s website and customer lists, blogs, and other marketing materials and public communications.
    6. No Third-Party Beneficiaries. Except as stated otherwise herein, this Agreement is for the sole benefit of the parties hereto and nothing herein, express or implied, shall give, or be construed to give, any rights hereunder to any other person. 
    7. Assignment. Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned (i) by Company to an Affiliate; and/or (ii) by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates.
    8. Governing Law And Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to principles and laws relating to the conflict of laws. The competent courts of Delaware shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. 
    9. Relationship of the Parties. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. 
    10. Force Majeure. The Company will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of the Company including, but not limited to on account of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of the Company. 
    11. Electronic counterparts. This Agreement may be executed in electronic counterparts, each of which counterpart, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same agreement.
    12. Notices. Except as may be specified otherwise in this Agreement, all notices, consents, or other communications provided for in connection with this Agreement shall be in writing, and shall be deemed given as follows: (A) when received, if personally delivered; (B) the second business day after mailing, when mailed via registered or certified mail with postage prepaid and return receipt requested; (C) upon delivery confirmation, when delivered by a nationally recognized overnight delivery service; or (D) the first business day after sending by email. Notwithstanding the foregoing, Customer agrees that Company may also give Customer notices via the Seat and/or to Customer’s address specified in the Order Form.