Atomatest Standard Terms

These Standard Terms are made a part of the Services Agreement:

1.      DEFINITIONS.  In addition to defined terms referenced elsewhere in the Services Agreement, the following definitions apply to the Services Agreement:

(a)  “Access Credentials” shall mean any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

(b)  “Authorized User(s)” means Customer’s Personnel (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to the Agreement and (ii) for whom access to the Services has been provisioned hereunder.

(c)  “Business Day” means any day other than a Saturday, Sunday or public holiday in the United States, when banks are generally open for business.

(d)  “Change Order” means any change to Customer’s original Order Form or most recently executed Change Order which shall amend the Services Agreement and become an additional schedule thereto and may result in additional fees charged to the Customer. Change Order documents may be self-serve online forms, email to Company from authorized Customer representative named in Services Agreement which confirm and authorize changes, or Customer-amended purchase orders.

(e)  “Company IP” means the Services, the Documentation, and any and all other intellectual property solely owned by Company and provided to Customer or any Authorized User. For the avoidance of doubt, Company IP includes (i) Usage Info and any information, learnings, data, or content derived from Company’s monitoring of Customer’s (including Authorized Users’) access to or use of the Services but does not include any applicable underlying Customer Content; and (ii) any custom elements or features developed or provided by Company.

(f)  “Customer Content” means (with the exception of personal data and Usage Info), information, data, and content, in any form or medium, that is submitted, posted, or otherwise transmitted by Customer or an Authorized User, through the Services and/or pursuant to the Agreement.  For purposes of certainty, Company IP may include the same or similar data as Customer Content to the extent Company has the right or ability under the Services Agreement, the Platform Terms, or otherwise pursuant to applicable Law, to create, collect, compile use or otherwise exploit such data for purposes other than performing the Services for the benefit of Customer.

(g)  “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly by Customer or through the use of third-party services.

(h)  “Documentation” means Company’s user manuals or guides relating to the Services and made available to Customer from time-to-time (see www.automatoninc.com).

(i)  “Normal Business Hours” means 9:00 am to 5:00 pm (Pacific Standard Time) on a Business Day.

(j)  “Order Form” means the ordering documents, which may be self-serve online forms or Customer-issued purchase orders, for Customer purchases from Company that are executed (including by electronic acceptance) hereunder by Customer and Company from time to time. All Order Forms shall be deemed incorporated herein.  Without limitation, an Order Form typically includes: (i) the fee for Subscription Offerings and Overage; (ii) limits on the number of Tests that may be Performed by Authorized Users; and (iii) references to Changes Orders, etc., to the extent applicable.

(k)  “Overage” means Tests Performed in excess of quantities allocated to a specific time period as defined by a Subscription Offering. Overage measurement excludes any Tests that included in the Standard Offering.

(l)  “Personnel” means Customer employees, agents or contractors.

(m)  “PII” means personal data of Customer’s Authorized Users.

(n)  “Platform” means Company websites and online services where Customer may order the Services or obtain customer service in connection with the Services.

(o)  “Platform Terms” means the Terms of Use and Privacy Policy, and other online terms, posted from time-to-time on the Platform.

(p) “Representative(s)” means a party’s officers, directors, employees, contractors, agents, lawyers and consultants.

(q) Third-Party Materials and Services” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Company.

(r) “Usage Info” means information related to Authorized Users’ use of the Services, including, without limitation, metadata, that is used by Company in an aggregate, de-identified, and/or anonymized (i.e., not directly personally identifiable to a specific individual data subject or directly attributable to Customer) manner, including to compile statistical and performance information related to the provision, operation or improvement of the Services.  Usage Info may include unique identifiers, which will not be deemed PII, to the extent permitted by applicable Law.

Terms defined in Exhibits and other documents incorporated into the Services Agreement by reference will have the definition set forth therein.

2.      CUSTOMER RESPONSIBILITIES.

(a)  General. Customer is responsible for ensuring that Personnel access or use the Services other than Authorized Users that do so for the limited purpose of obtaining for Customer, the use of the Services to which Customer is entitled.  Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Services Agreement if taken by Customer, will be deemed a breach of the Services Agreement by Customer. Customer shall ensure that Authorized Users are aware of the Services Agreement’s provisions as applicable to such Authorized Users’ use of the Services and shall cause Authorized Users to comply with such provisions.  Customer is also responsible for all acts and omissions of Authorized Users, and their compliance with the Services Agreement and applicable Law, and for the Customer Content and Customer Systems.

(b)  Subscriptions to Provider Technology. Customer acknowledges and agrees that in order to utilize the Services, Customer must have an active subscription or license with the applicable Provider in order for the Services to properly function and interoperate with the applicable Provider Technology.  Customer shall have the sole responsibility for obtaining such subscription or license form the applicable Provider.

(c)  Customer Account. When creating an account or uploading information to the Services, Customer shall ensure that all information submitted is accurate and complete.  Customer shall be responsible for all activity that occurs under its account and shall ensure that Authorized Users keep Access Credentials secure. Customer shall immediately notify Company in the event of any breach of security or unauthorized use of any Customer and/or Authorized User account; provided, however, that Customer shall remain responsible for all activity in connection with Customer and/or Authorized User accounts following notice.  Customers have no ownership rights or proprietary interest in their accounts.  Use of Authorized User Accounts to gain access to Services are Platform Use and subject to Platform Terms.

(d)  Customer Content.  Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Content. Customer Content shall comply with all applicable Laws. Customer Content shall not include any personal data or personally identifiable information as such are defined by applicable Laws. Without limiting the generality of the foregoing, as part of Performing Tests on the Services, neither Customer nor its Authorized Users shall include personal data or personally identifiable information, as such are defined by applicable Laws, in the Customer Content to be processed by the Services.

(e)  Access and Security. Customer shall employ reasonable physical, administrative and technical controls, screening and security procedures and other safeguards necessary to protect against any unauthorized access to or use of the Services.  Customer is responsible for the security of Customer Systems and will maintain such in compliance with applicable Law and Customer’s obligations to third-parties.

(f)  Compliance with Applicable Laws.  Customer will comply with applicable local, state, national and foreign laws, treaties, regulations and conventions (“Law(s)) in connection with its use of the Services, including without limitation those related to data privacy, employment and labor and consumer protection.

(g)  Customer-associated Third-Party Materials and Services. In addition to Third-Party Materials and Services provided by Company, Customer may utilize additional services and materials provided by third-parties (“Customer-associated Third-Party Materials and Services”), but accessed via the Services, which as between Company and Customer shall be treated hereunder as Customer activities and Customer Content for which Customer shall be solely responsible.  Company, may, at any time in its reasonable discretion, disapprove or require removal of any Customer-associated Third-Party Materials and Services.  If specified in an Order Form, Company will make good faith commercially reasonable efforts to integrate Customer-associated Third-Party Materials and Services into the Service, which integration is dependent on Customer and the third-parties’ cooperation and technology.  Company does not make any compatibility or interoperability guarantees, warranties or commitments.  Initial and ongoing integration and support services may result in additional fees and costs charged to Customer on fixed fee or a time and materials basis, as specified on Order Form or Change Order.  For sake of clarity, Provider Technology shall be deemed Customer-associated Third-Party Materials and Services.

(h)  Cooperation. Customer is responsible for promptly responding to all Company requests for materials, information, feedback and, if applicable, approval, and providing access to Customer Content, Customer Systems, and Customer-associated Third Party Materials and Services to the extent reasonably necessary for Company’s performance of the Services.

3.      ACCESS AND USE.

(a)  Provision of Access. Subject to and conditioned on Customer’s payment of all compensation due hereunder as reflected in the applicable Order Form or Change Order, including without limitation, payment of timely subscription fees (if applicable), and compliance with all other terms and conditions of the Services Agreement, Company hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable (except to Authorized Users) right to access and use the Services, consistent with the Services Agreement and any instructions by Company, only for the purposes expressly authorized in the Services Agreement, during the Term.

(b)  Use Restrictions. Customer shall not use, or permit the use of, the Services for any purposes beyond the scope of the access granted in the Services Agreement, or use, or permit the use of, the Platform in breach of the Platform Terms.  Without limiting the generality of the forgoing, Customer shall not at any time, directly or indirectly, and shall not authorize or permit any party to: (i) copy (except as approved by Company in writing or to the extent necessary to comply with applicable Law), modify, or create derivative works of the Services or Documentation in whole or in part except as may be expressly authorized by Company in writing; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation on any basis beyond the expressly authorized uses under the Services Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable Law; or (vi) access or use the Services for purposes of competitive analysis of the Services, or the development, provision or use of a competing software service or product.

(c)  Reservation of Rights. Company reserves all rights not expressly granted to Customer in the Services Agreement. Except for the limited rights and licenses expressly granted under the Services Agreement, nothing in the Services Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party any intellectual property rights or other right, title, or interest in or to the Company IP.

(d)  Suspension and Changes. Notwithstanding anything to the contrary in the Services Agreement, Company may temporarily suspend Customer’s and any Authorized User’s account, and/or access to any portion or all of the Services, in the event of account inactivity, or if Company reasonably suspects or determines that (i) Customer’s or any Authorized User’s access to or use of the Services, Platform or other Company IP, disrupts or poses a security risk to the Services, Platform or other Company IP, or to Company or third-parties; (ii) Customer, or any Authorized User, is using the Services, Platform or other Company IP for fraudulent or illegal activities, or in any manner inconsistent with the Services Agreement or the Platform Terms; (iii) Customer Personnel are behaving in an offensive or abusive manner towards a Company account or support person; (iv) Customer has failed to reasonably cooperate with Company or comply with Company’s reasonable request or instructions; or (v) Customer is making, or has made, excessive support demands.  Company may change or discontinue the Services, in whole or in part, at any time in its sole discretion.

(e)  Platform Use and Terms.  Access and use of the Platform by Customer or its Authorized Users (“Platform Use”), is subject to the then-current Platform Terms, provided, however, that, in the event of any express conflict between the Platform Terms and the Services Agreement, the conflicting provision of the Services Agreement shall prevail with regard to the Services.  The Platform Terms shall survive the termination or expiration of the Services Agreement and continue to govern any Platform Use thereafter.

4.      PAYMENTS AND PAYMENT TERMS.

(a)  Fees.  As applicable, Subscription Fees, customization fees, and other fees and costs, shall be set forth in an applicable Order Form or applicable Change Order or Additional Terms (collectively, the “Fees”).  Customer shall pay Company all Fees without offset or deduction.

(b)  Subscription Fees.  Unless otherwise set forth in an Order Form, applicable Change Order or other document, payment of subscription fees (“Subscription Fees”) are due on a monthly basis, and all other fees are due to Company within thirty (30) days of invoicing.  Unless otherwise specified in the applicable Order Form, Subscription Fees must be paid by credit card, debit card, or other accepted form of payment (“Payment Method”) and such Payment Method may be requested for other payments.  Customer agrees to provide Company with complete and accurate billing and contact information together with the email address, and name and telephone number of an authorized billing contact (“Billing Contact”) and shall timely inform Company and/or update Company of changes to the Payment Method and/or Billing Contact. Customer agrees that its Payment Method and Billing Contact information may be shared with third-parties such as payment processors, operational vendors, credit agencies, and/or collection agencies, for the purposes of checking Customer’s credit, effecting payment, collecting payments, assessing late fees if applicable and other legitimate Company business reasons.  Pursuant to this Section 4, Customer authorizes Company to charge its Payment Method for amounts due hereunder.

(c)  Currency.  Unless otherwise specified in an applicable Order Form, Change Order or Additional Terms, all payments to Company shall be made in U.S. Dollars.

(d)  Late Payments.  If Customer fails to make any payment when due, without limiting Company’s other rights and remedies: (i) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (ii) Customer shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Company reserves the right to suspend or terminate Customer’s access to the Services, in addition to any other legal remedies.

(e)  Recurring Renewal Subscription Charges.  Unless otherwise set forth in an Order Form or Change Order or Additional Terms, at the time of automatic renewal (see Section 5 (a) of these Standard Terms), the applicable Subscription Fee will be charged to the Payment Method provided, together with any applicable VAT, sales, use, excise, consumption or other similar tax applicable to the Services, until termination as set forth in Section 5 (b).

(f)  Taxes. Subscription Fees and other amounts payable by Customer under the Services Agreement are exclusive of taxes and similar assessments. Customer will be responsible for the payment of any present or future sales, VAT, use, excise or other similar tax (excluding taxes based on Company’s net income) applicable to the Services.  All fees paid by Customer are non-refundable unless otherwise expressly stated herein.   If Company is required by a taxing authority to pay any taxes not previously collected from Customer, Customer will promptly submit the amount pertaining to such taxes (including applicable penalties and interest, if any) to Company upon written notice.

(g)  Trials.  Trial subscriptions are subject to the terms and conditions of the Services Agreement and any applicable additional terms disclosed as part of such offer or promotion. If Customer is offered a reduced-fee trial, unless otherwise expressly provided as part of the offer terms, the Service will convert to a comparable full-fee Subscription Offering unless Customer reverts to the Standard Offering. The terms and conditions of the Services Agreement remain active until Customer expressly terminates the Services Agreement and related Services.

5.      TERM; TERMINATION.

(a)  Term and Auto-renewal.  The term of the Services Agreement shall commence on the Effective Date and shall continue for the subscription period set forth in the Order Form, typically monthly (“Initial Term”).  Thereafter, unless otherwise set forth in an Order Form, the Services provided under an Order Form will automatically renew for additional successive subscription periods of the same duration (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless and until Customer provides Company with a written notice of non-renewal or cancellation prior to the end of the then-current Renewal Term in the manner specified in the Order Form, and in the absence of any such specification, by email to billing@automatoninc.com or to the Company notice address in Section 4 of the Services Agreement, or until the Services Agreement is earlier terminated pursuant to the Services Agreement’s express provisions. The termination becomes effective on the last day of the current Renewal Term in which Customer’s non-renewal or cancellation was received, typically the end of the month. In the event of a Subscription Offering that establishes a period greater than one month and stipulates prepayment of Subscription Fees, a written notice of cancellation is effective the last day of the month in which it was received.

(b)  Termination. In addition to any other express termination right set forth in the Services Agreement:

(i)  Company may terminate the Services Agreement, if Customer fails to timely pay any amount when due hereunder or breaches obligations under Sections 2, 3 or 7 of these Standard Terms.

(ii)  Either Party may terminate the Services Agreement, effective on written notice to the other Party, if the other Party breaches the Services Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured five (5) days after the non-breaching Party provides the breaching Party with written notice of such breach.

(iii)  As permitted by applicable Law, either Party may terminate the Services Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(iv)  Company may terminate the Services Agreement for convenience by providing written notice (which may be sent by email).

(c)  Effect of Expiration or Termination. Upon any expiration or termination of the Services Agreement, except as expressly otherwise provided in the Services Agreement: (i) all rights, licenses, consents and authorizations granted by either Party to the other hereunder (other than the irrevocable and perpetual grants by Customer pursuant to Section 8 (d) and (e) of these Standard Terms, and excepting the Platform Terms with regard to Platform Use), will immediately terminate; (ii) Customer shall immediately cease all use of the Services and Documentation; (iii) Customer shall promptly return to Company, or at Company’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on any Company Confidential Information; (iv) if Customer terminates the Services Agreement under Section 5 (b) (ii), or if Company terminates the Services Agreement under Section 5 (b) (iv), Customer will be relieved of any obligation to pay any Subscription Fees attributable to the period after the effective date of such termination and Company will refund to Customer on a pro-rata basis that portion of Subscription Fees paid in advance for Services that Company has not performed as of the effective date of termination; if Customer terminates the Services Agreement under 5 (a) electing not to enter into a Renewal Term or ending Services provided before term expiration Customer will be relieved of any obligation to pay any Subscription Fees attributable to the period after the effective date of such termination and Company will refund to Customer on a pro-rata basis that portion of Subscription Fees paid in advance for Services that Company has not performed as of the effective date of termination less any promotional or prepayment discounts offered, discounted fees or usage during a Trial, or any other promotional offer; and (v) if Company terminates the Services Agreement other than under Section 5(a) or 5 (b) (iv), all Fees, including without limitation, Subscription Fees that would have become payable had the Services Agreement remained in effect until expiration of the Term, and Customer shall pay such Subscription Fees any other Fees, together with all previously-accrued but not yet paid Subscription Fees and other applicable compensation, within fifteen (15) days of invoicing.

(d)  Surviving Terms. The provisions set forth in Sections 1, 3 (b), 3 (c), 3 (e), 4 – 12 of these Standard Terms, and any other right or obligation of the Parties in the Services Agreement that, by its nature, should survive termination or expiration of the Services Agreement, and any of the Platform Terms that are expressly provided herein to apply, will survive any expiration or termination of the Services Agreement.

6.      REPRESENTATIONS AND WARRANTIES.

(a)  Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is a company, incorporated and validly existing in the jurisdiction of its incorporation; and (ii) when executed and delivered by each of the Parties, the Services Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

(b)  Additional Company Representations. Company represents to Customer that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner and will devote commercially reasonably adequate resources to meet its obligations under the Services Agreement.  For the avoidance of doubt, Company makes no representation or warranty regarding any third-party generated content, or regarding Third-Party Materials and Services, Customer Tests, Customer Tiles, Partner Tests, Partner Tiles, Commissioned Tests and Tiles, Customer Content, Customer Systems, the Atomatest Tool, or Customer-associated Third-Party Materials and Services, or their compatibility or interoperability with the Services or Company technology.  Customer agrees that Company: (i) is not responsible for and does not endorse Customer Tiles, Customer Tests, Partner Tiles or Partner Tests; (ii) makes no guarantees about the accuracy, suitability, legality, reliability or quality of Customer Tiles, Customer Tests, Partner Tiles or Partner Tests; and (iii) is not responsible for objectionable, infringing, inaccurate, misleading, or unlawful Customer Tiles, Customer Tests, Partner Tiles or Partner Tests.

(c)  Additional Customer Representations. Customer represents, warrants and covenants to Company that (i) Customer Content, and Customer-associated Third-Party Materials and Services, and Authorized User’s access to and use of the Services, shall comply with the obligations contained in the Services Agreement, including without limitation the Platform Terms; (ii) Customer owns or otherwise has, and will have, the necessary rights and consents in and relating to the Customer Content, Customer Systems, Commissioned Tests and Tiles, and Customer-associated Third-Party Materials and Services so that, as accessed or received by Company and processed or otherwise used in accordance with the Services Agreement, Customer Content, Customer Systems and Customer-associated Third-Party Materials and Services, and the access and use thereof, shall not and will not infringe, misappropriate or otherwise violate any intellectual property rights, or any privacy or other rights of any third-party, create any third-party obligations or liabilities for Company, or violate any applicable Law; and (iii) Customer shall be in compliance with all applicable Laws, including without limitation, those relating to data privacy and data protection, in connection with its and its Authorized Users’ access and use of the Services and its operation of the related Customer Systems.

7.      CONFIDENTIAL INFORMATION.

(a)  Confidential Information. In connection with the Services Agreement, each Party (as the, “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 7 (b), “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing, all Company provided materials, including without limitation Documentation, and the terms and existence of the Services Agreement are the Confidential Information of Company.

(b)  Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with the Services Agreement; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Services Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis from a third-party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

(c)  Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall, during the Term, and for a period of three (3) years following expiration or earlier termination of the Services Agreement:  (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Services Agreement; (ii) except as may be permitted by and subject to its compliance with Section 7 (d), not disclose or permit access to Confidential Information other than to its Representatives who: (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Services Agreement; (B) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7 (c); and (C) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7; (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (iv) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and (v) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 7.  Notwithstanding any other provisions of the Services Agreement, the Receiving Party’s obligations under this Section 7 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

(d)  Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law or legal process (including without limitation, subpoena) to disclose any Confidential Information then, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. If the Receiving Party is Customer, then the Customer shall, to the extent permitted by applicable Law: (i) promptly, and prior to such disclosure, notify Company in writing of such requirement so that the Company can seek a protective order or other remedy or waive its rights under Section 7 (c); and (ii) provide reasonable assistance to Company, at Company’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If Company waives compliance or, after providing the notice and assistance required under this Section 7 (d), Customer remains required by law to disclose any Confidential Information, Customer shall disclose only that portion of the Confidential Information that Customer is legally required to disclose.

8.      INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.

(a)  Company IP.  Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP.

(b)  Tests. Customer shall own all right, title, and interest in and to Customer Content submitted and stored, as well as outcome data for the purposes of Performing Tests (excluding any Company IP therein). Customer hereby grants to non-exclusive, royalty-free, worldwide license (with the right to sublicense) to reproduce, distribute, modify, creative derivative works of, otherwise use and display the Customer Content and otherwise exploit and perform all acts with respect to Tests and Tiles configured by Customer or by Company on behalf of Customer as may be necessary to provide the Services to Customer and other customers.

(c)  Third-Party Materials and Services.  With respect to Third-Party Materials and Services, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials and Services.

(d)  Usage Info. Notwithstanding anything to the contrary in the Services Agreement, Company may monitor Customer’s (and the Authorized Users’) use of the Services and collect and compile Usage Info and Customer shall obtain from them any necessary consents therefor.  As between Company and Customer, all right, title, and interest in Usage Info, and all intellectual property rights therein, belong to and are retained solely by Company.  Customer acknowledges that Company may compile Usage Info based on Customer Content input into the Services or otherwise provided to Company. Customer agrees that Company may (i) make Usage Info publicly available in compliance with applicable Law, and (ii) use Usage Info to the extent and in the manner permitted under applicable Law; provided that such Usage Info does not identify Customer and does not personally identify a natural person.

(e)  Customer Content. As between Company and Customer, Customer owns Customer Content, subject to the terms of the Services Agreement.  Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license (with the right to sublicense) to reproduce, distribute, modify and otherwise use and display the Customer Content and perform all acts with respect to the Customer Content as may be necessary for Company to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license (with the right to sublicense) to reproduce, distribute, modify, creative derivative works of, and otherwise use and display, and otherwise exploit, Customer Content incorporated within the Usage Info.

(f)  Feedback.  If Customer, or any of its Personnel, Representatives, or Authorized Users, sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Company on Customer’s behalf, and on behalf of its Personnel and Authorized Users, all right, title, and interest in, and to the Feedback, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.

9.      COMPANY WARRANTY DISCLAIMER.  The following applies to the fullest extent not prohibited by applicable Law: 

THE COMPANY IP, THE SERVICES, THIRD PARTY MATERIALS AND SERVICES, CUSTOMER CONTENT, WHETHER PROVIDED BY CUSTOMER, PERSONNEL, AUTHORIZED USERS, OR OTHER THIRD PARTIES CONNECTED TO ANY PARTY, AND/OR ANY THIRD PARTY PROVIDERS REFERENCED IN THE SERVICES AGREEMENT, ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE BASIS’, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATED THERETO. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP, CUSTOMER CONTENT, THE SERVICES, THIRD PARTY MATERIALS AND SERVICES, OR ANY OTHER PRODUCTS, SERVICES, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S, AUTHORIZED USERS’, OR ANY OTHER PERSON’S REQUIREMENTS, OR WILL OPERATE WITHOUT INTERRUPTION, OR WILL ACHIEVE ANY INTENDED RESULT, OR WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  COMPANY MAY, BUT has no obligation to, screen or verify the accuracy, legality, legitimacy, truthfulness, or completeness of SUCH CUSTOMER Content, and accordingly, CUSTOMER ACCEPTS that Company is not responsible and has no liability, for CUSTOMER Content. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED OR OBTAINED AT CUSTOMER’S OWN RISK.

10.      LIMITATIONS OF LIABILITY .  The following applies to the fullest extent not prohibited by applicable Law:

IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THE SERVICES AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES AGREEMENT, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THE SERVICES AGREEMENT DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  In all other respects, the limitation of liability provisions of the Platform Terms shall govern the Platform Use.

11.      INDEMNIFICATION . To the fullest extent not prohibited by applicable Law, in addition to the indemnity obligations in the Platform Terms,

Customer shall indemnify, hold harmless, and, at Company’s option, defend Company from and against any losses, damages, liabilities and costs incurred by Customer (“Losses”) arising out of or resulting from any third-party claim, suit, action or proceeding (“Third-Party Claim”) (a) that the Customer Content, Commissioned Tests and Tiles, or any use of the Customer Content in accordance with the Services Agreement, or the Customer Systems or Customer-associated Third-Party Material and Services infringes or misappropriates such third-party’s intellectual property or other rights,  (b) any matter expressly designated as a Customer responsibility under the Services Agreement; and/or (c) based on Customer’s, Authorized Users’ or any Personnel’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by the Services Agreement; (iii) breach of the Services Agreement including a failure to comply with applicable Laws; (v) use of the Services in combination with data, software, hardware, equipment or technology not provided by Company or authorized by Company in writing, provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

12.      MISCELLANEOUS.

(a)  Force Majeure.  Other than the Parties’ confidentiality and indemnity obligations, and Customer’s payment obligations, no Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Services Agreement, for any failure or delay in fulfilling or performing any term of the Services Agreement (except for any obligations to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including, without limitation, fire, flood, war, riot, embargo, earthquake, shortage of adequate power or telecommunications facilities or services, or any other acts beyond its reasonable control (each of the foregoing, a ForceMajeure Event). A Party whose performance is affected by a Force Majeure Event shall give notice to the other Party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.  During the Force Majeure Event, the non-affected Party may similarly suspend its performance obligations until such time as the affected Party resumes performance.  The non-affected Party may terminate the Services Agreement if such failure or delay continues for a period of thirty (30) days or more.   Unless the Services Agreement is terminated in accordance with this Section 12 (a), the Term of the Services Agreement shall be automatically extended by a period equal to the period of suspension.

(b)  Amendment and Modification; Waiver. No amendment to or modification of the Services Agreement is effective unless it is in writing and signed by an authorized representative of each Party. Except as otherwise set forth in the Services Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Services Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving.

(c)  Severability. If any provision of the Services Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Services Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Services Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(d)  Governing Law; Arbitration.  The following applies to the extent not prohibited by applicable Law: The Services Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Washington without regard to its conflict of law principles.  Any dispute, disagreement, or claim between the Parties arising out of or in connection with this Services Agreement shall be submitted to final and binding arbitration, in accordance with (i) the Consumer Arbitration Rules of the American Arbitration Association if Customer is an individual and (ii) the Commercial Arbitration Rules of the American Arbitration Association if Customer is an entity, with any in-person proceedings to be held in Seattle, Washington. This Section 12 (d) is a written agreement to arbitrate and is governed by the Federal Arbitration Act. Disputes will be exclusively resolved by arbitration on an individual basis and Customer and Company waive the right to bring a class action or to a judge or jury trial. The arbitrator’s decision may be enforced by any tribunal with jurisdiction over the parties and Customer and Company consent to jurisdiction in Seattle, Washington. The award of the arbitrator shall be the sole and exclusive remedy between the Parties regarding any and all claims and counterclaims presented to the arbitrator. Notwithstanding the foregoing, either Party may bring a lawsuit in the federal or state courts of Seattle, Washington solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of intellectual property rights or breach of confidentiality.

(e)  No Third-Party Beneficiaries.   Except as otherwise expressly provided in the Services Agreement, no person or entity not a Party to the Agreement will be deemed to be a third-party beneficiary of the Agreement or any provision hereof.

(f)  Further Assurances.  Customer shall, from time to time, at the request of Company, promptly furnish Company such further information or assurances, execute and deliver such additional documents, instruments and conveyances, and take such other actions and do such other things, as may be necessary to carry out the provisions of the Services Agreement.

(g)  Equitable Relief.  Customer acknowledges that a breach by the Customer of any confidentiality or proprietary rights provision of the Services Agreement may cause the Company irreparable damage, for which the award of damages would not be adequate compensation.  Consequently, the Company may institute an action to enjoin Customer from any acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Company may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.

(h)  Execution, Counterparts and Digital/PDF Signatures.  The Services Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  The Services Agreement may be executed by any Party by delivery of a digital signature, or a signature in “PDF” format, which signature shall have the same force and effect as an original signature.

(i)  Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this sub-section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. The Services Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(j)  Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable Laws and rules and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the United States or the United Kingdom.

(k)  Publicity; Trademarks.  Customer shall not publicly disclose, issue any press release nor make any other public statement, nor otherwise communicate with the media, concerning the existence of the Services Agreement or the subject matter hereof, or the relationship with the Company, without the prior written approval of the Company’s legal department.  Any use by Customer of Company’s name, logo, marks, and materials shall be subject to Company’s guidelines and instructions from time to time.  Company is entitled to identify Customer as a client of the Company in promotional and marketing materials and on Company’s websites.  In addition, Customer grants to Company a non-exclusive, worldwide, royalty-free license to use the Customer’s tradename/corporate name and the Customer’s logo, on the Company’s websites and mobile applications in order to provide the Service, and in advertising and marketing materials related to the promotion of the Company’s services and products.

(l)  Relationship.  Nothing contained in the Services Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party, by virtue of the Services Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party.

(m)  US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

Last Updated May 21, 2019