BH2 INNOVATIONS INC.
TERMS OF SERVICE
These Terms of Service define the terms by which subscribers may use the software platform and the accompanying services and are an agreement between you (the “Customer’) and BH2 Innovations Inc., having a principal place of business at 2570 North 1st Street, 2nd Floor, San Jose, CA 95131 (“Company”) who may each individually be referred to as a ‘Party” or collectively as the “Parties.” By subscribing to use the software platform and the services, you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service, as well as any applicable laws hereunder. You should not enter into a subscription to use this software platform and the services if you do not agree to these Terms of Service.
Company may modify these Terms of Service at any time in its sole discretion, and any amendments will apply upon thirty (30) days prior written notice. Your continued use of the software platform and services after any amendments shall signify your acceptance of the amendments. You should return to this page from time to time in order to ensure that you are aware of any updated terms.
1. Subscription
(a) Subscription Rights. For the term of the subscription (the “Term”) and any Renewal Period(s) as defined in Section 6(a) below, Company grants to Customer the non-exclusive, non-transferable right to permit for Customer’s own internal business purposes the number of Authorized Devices and Authorized Users at the Designated Locations as designated by Customer pursuant to an Order (i) to access, use, display and run the Authorized Modules and (ii) to access, use, display, and make an unlimited number of copies of the Documentation about the Software Platform for internal use only.
For the purposes of these Terms of Service, “Authorized Devices(s)” shall be any computer laptop or desktop device meeting the Hardware Specifications listed at https://wdog.ai and incorporated by reference, which is authorized by Customer. “Designated Location(s)” shall be defined as any Customer facility authorized to use the Software Platform and Services by Company. “Documentation” shall be defined as any materials or instructions about the functionality of the Modules and/or the Software Platform, which are published by Company and made available to Customer. “Service(s)” shall be defined as any Company service related to the Software Platform as defined in Section 5 below. “Software Platform” shall be defined as the current version of Company’s cloud-based Modules in the aggregate then made available to any Customer, along with any updates, upgrades, modifications or improvements made thereto. “Order” shall be defined as the online order form memorializing an order pertaining to the Software Platform and Services. Any Orders shall be incorporated by reference into Customer’s subscription agreement with Company.
(b) Restrictions. Customer may not share, distribute, resell, rent, lease, license, sublicense, transfer, create derivative works of the Software Platform, or otherwise permit any third party to access, use, or display the Software Platform or any intellectual property contained therein. The Software Platform contains Company’s trade secrets, and in order to protect those trade secrets, Customer agrees not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivative works of the Software Platform, in whole or in part, nor to permit any third party to do so. Any use of the Software Platform that exceeds the scope of the subscription shall constitute a material breach of these Terms of Service.
2. RIGHTS TO INTELLECTUAL PROPERTY AND DATA
(a) Ownership of Software Platform, Documentation and Application. Customer acknowledges and agrees that no title to the intellectual property in the Software Platform, Documentation or Application is transferred to Customer under these Terms of Service. For the avoidance of doubt, Customer further acknowledges that all right, interest, title and full ownership rights to the Software Platform, Documentation, and Application and all the intellectual property rights contained therein will remain the exclusive property of Company. Customer agrees not to remove any trademark, copyright, or other proprietary notices on the Application or Documentation as delivered, and to reproduce all such notices on and in all authorized copies. For the purposes of these Terms of Service, “Application” shall be defined as the software application, which is made available to Customer and Authorized Users for download, which when run and operated, will access the Software Platform, and manage the associated features. For the avoidance of doubt, the Application comprises the current version of the downloadable software application, along with any updates, upgrades, or improvements made thereto.
(b) Ownership of Logos and Trademarks. Customer acknowledges and agrees that Company owns all right, title, and interest in the logos and trademarks used by Company in conjunction with the marketing and advertising of the Software Platform and the Services, and that no right to use any such logos and trademarks is granted herein. For the purposes of these Terms of Service, “Services” shall be defined as all of the services made available to Customer by Company in conjunction with the use of the Software Platform, including but not limited to implementation, training, hosting, maintenance, technical support, defect detection, data backup and storage, and data reporting services as further described in these Terms of Service.
(c) Ownership of Photo Images and Video Files. Customer shall retain ownership of all, right, title, and interest to any and all photo images and video files uploaded to the Software Platform.
(d) Ownership of Data. Customer shall retain ownership of all right, title, and interest in any Customer Data uploaded to the Software Platform. Company shall retain ownership of all right, title, and interest in any Company Data generated by the Application, the Software Platform and the Services. For the purposes of these Terms of Service, “Company Data” shall be any and all facts, information, records, or metadata generated by the Application, the Software Platform, or any Service.
(e) Ownership of Reports. All reports generated pursuant to the Software Platform shall constitute the jointly owned intellectual property of both Customer and Company. Any Customer Data that may be used in reports shall be de-identified as necessary to maintain the anonymity of the source. For the purposes of these Terms of Service, “Customer Data” shall be defined as all facts, information, and records uploaded by Customer into the Software Platform.
(f) Licenses and Use Rights. During the Term and any Renewal Periods:
(i) Application. Company shall grant to Customer and the Authorized Users a nonexclusive, nontransferable license to download, install, run, and use the Application and interface with the Software Platform on the designated number of Authorized Devices.
(ii) Photo Images and Video Files. Customer shall grant to Company a nonexclusive, nontransferable license to use, copy, and make derivative works for its own internal business purposes of the photo images and video files uploaded to the Software Platform.
(iii) Customer Data. Customer shall grant to Company the right to use Customer Data for its own internal business purposes and to provide Services.
3. CUSTOMER AND AUTHORIZED USER OBLIGATIONS
(a) Acceptable Use Policy. Customer and Authorized Users shall be responsible for compliance at all times with the Acceptable Use Policy linked at https://wdog.ai and incorporated herein by reference.
(b) Hardware Specifications. Customer and Authorized Users shall be responsible for maintaining hardware for use with the Software Platform that meets with the Hardware Specifications linked at https://wdog.ai/ and incorporated herein by reference.
(c) Training. Customer shall ensure that its Authorized Users are trained in use of the Application.
4. SERVICES PROVIDED BY A THIRD-PARTY RESELLER
Customers who purchase this subscription through a third-party reseller (the “Reseller”) will be provided the following services by Reseller pursuant to such Reseller’s applicable terms of service:
(a) Implementation Services. Upon submission of the Order, Reseller will begin working with Customer on implementing the Authorized Module(s) at each Designated Location in accordance with any mutually agreed upon implementation schedule for the implementation services.
(b) Training Services. Following completion of implementation, Reseller will make available to Customer remote training services, which will be offered on a quarterly basis to all Designated Locations in a single thirty (30) minute session to be scheduled during Business Hours at a mutually convenient time. Reseller may also make available to Customer additional training services for an additional charge, which in the case of on-site training, will include reasonable travel expenses. For all on-site training services, Customer shall be responsible for charges incurred as a result of any training service cancellation which does not comply with Cancellation Policy. “Cancellation Policy” shall be defined as the policy that Customer provide at least forty-eight (48) hours advance written notice of any cancellation prior to a scheduled appointment.
(c) Technical Support Services. Reseller will make available to Customer during Business Hours technical support services in accordance with Reseller’s then-current technical support service plan. In addition, Company will make available upon request additional technical support services After Hours for an additional charge. For the purpose of these Terms of Service, “After Hours” shall be defined as all other hours outside of Business Hours. “Business Hours” shall be defined (unless otherwise stated) as Monday through Friday between the hours of 8 a.m. to 5 p.m. PT, excluding Recognized Holidays. “Recognized Holidays” shall be defined as the following nationally recognized U.S. holidays (unless otherwise stated in writing): Martin Luther King’s Birthday, President’s Day, Memorial Day, Juneteenth, Veteran’s Day, Fourth of July, Thanksgiving Day and the day after Thanksgiving Day, Christmas Eve, Christmas Day, New Year’s Eve and New Year’s Day.
5. COMPANY SERVICES MADE AVAILABLE TO CUSTOMER
(a) Hosting and Maintenance Services. Company will host and maintain the Software Platform in accordance with the Service Level Agreement linked at https://wdog.ai and incorporated by reference herein.
(b) Cloud-Based Data Backup and Storage Services. Data will be collected and stored to the cloud and will be protected in accordance with Company’s Security Policy, Disaster Recovery & Business Continuity Policy, and Privacy Policy.
6. FEES AND PAYMENTS
(a) Subscription Fee(s). Customer shall pay the annual subscription fee due and payable for the Authorized Module(s), Authorized Device(s), Authorized User(s) and Designated Location(s) as set forth in the most recent Fee Schedule (the “Annual Subscription Fee”) provided to the Customer by the Company. The Annual Subscription Fee will be payable in twelve (12) equal monthly installment payments commencing as of the Subscription Start Date and then continuing on each monthly anniversary thereafter.
(b) Fee Increases. Company shall have the right at its sole and absolute discretion to increase fees at any time upon prior written notice.
(c) Payments. Except as otherwise expressly stated in these Terms of Service, payment for all fees shall be due and payable as specified in the Fee Schedule or an applicable invoice. Failure to pay any fee when due shall constitute a material breach of these Terms of Service. All payments shall be made in U.S. Dollars. Customer shall be solely responsible for any taxes imposed on the Services. Any taxes incurred by Company shall be reflected on the invoice and billed directly to Customer. Company accepts the following forms of payment: credit card, debit card, ACH, or wire transfer.
(d) Past Due Payments. On all amounts outstanding and payable to Company, interest shall accrue from the date such amounts are due and payable at the rate of One and One-Half Percent (1.5%) per month or the maximum amount allowable by applicable law, whichever is less. Customer’s payment of interest on overdue amounts shall not cure or waive any default pursuant to these Terms of Service. Company will also assess a late fee in the amount of one hundred dollars ($100 USD) on all balances that go more than seven (7) days unpaid. Company reserves the right to submit any balance to collections which goes unpaid for ninety (90) days following the invoice date, in which case Customer will also be responsible for all costs of collection and attorney’s fees.
7. TERM, TERMINATION, AND SUSPENSION
(a) Term. The term of the subscription shall commence on the date the Order is submitted and shall remain in effect through the one-year anniversary of the Subscription Start Date, at which time the subscription will automatically renew for successive one-year periods (the “Renewal Period(s)”) unless either Party gives thirty (30) days prior written notice of its intent to terminate prior to the date on which the subscription auto-renews. For the purposes of these Terms of Service, “Subscription Start Date” shall be defined as the first date on which implementation of the Software Platform has been completed and the Authorized Devices and Authorized Users are able to access and use the Authorized Modules and the Services.
(b) Suspension. Upon ten (10) days prior written notice, Company may temporarily suspend all Services to any Customer for any failure to meet a Customer Obligation as set forth in Section 3 above. Upon forty-eight (48) hours prior written notice, Company may temporarily suspend all Services to any Customer if any payment has gone unpaid for more than seven (7) days.
(c) Termination for Nonpayment. Upon ten (10) business days prior written notice, Company may terminate for material breach in the event that (i) Customer fails to make a payment due and payable and (ii) Company has suspended Services for nonpayment; and (iii) Customer fails to cure the breach following receipt of notice in such ten (10) day notice period.
(d) Termination for Other Material Breach. Upon 10 business days prior written notice, either Party may terminate for material breach in the event that (i) the other Party materially breaches any term or condition of these Terms of Service and (ii) the breaching Party fails to cure the breach following receipt of notice within 10 days.
(e) Effect of Expiration or Termination. Upon any expiration or termination of the subscription, Company shall have the right to immediately and permanently suspend the performance of all Services, and the licenses to use Application, Photo Images and Video Files as well as the rights to use Customer Data shall immediately cease and terminate. The following terms and conditions shall survive any expiration or termination of the subscription until such time as they are fully exhausted: Sections 2,6, 7 (e-f), 8, 9, 10 (e-f), and 12 (a-f).
(f) Customer Data. Within ninety (90) days after expiration or termination of the subscription, Company will purge all Customer Data, Photos, and Videos. Company also agrees to purge all Customer Data, Photos, and Videos within thirty (30) days following receipt of a written request from the Customer.
(g) Force Majeure. The failure of either Party to perform any obligation pursuant to these Terms of Service by reason of “acts of God,” acts of governments, terrorism, riots, wars, accidents, deficiencies in materials or transportation, pandemic or epidemic, or any other causes beyond its control shall not be deemed to be a material breach of these Terms of Service, provided that the nonperforming or delayed Party provides to the other Party written notice of the existence and nature of such reason for the nonperformance and delay, and resumes performance immediately upon the elimination of the relevant force majeure.
8. CONFIDENTIAL INFORMATION
During the Term and any Renewal Period(s), each Party may disclose certain Confidential Information to the other Party. For the Term and for at least five (5) years thereafter, each Party shall refrain from using or exploiting any and all Confidential Information of the other Party for any purposes or activities other than those specifically authorized in these Terms of Service, and shall hold Confidential Information in confidence and protect Confidential Information to the same extent and by the same means it uses to protect the confidentiality of its own proprietary or confidential information that it does not wish to disclose. Neither Party shall disclose or facilitate disclosure of Confidential Information of the other Party to anyone except employees and independent contractors who are authorized according to these Terms of Service and who have a “need to know such information.” Each Party shall ensure that the employees or independent contractors to whom the Confidential Information is disclosed comply with their obligations under these Terms of Service with respect to the Confidential Information. All Confidential Information made available hereunder, including copies thereof, shall be returned to the disclosing Party or shall be certified as destroyed at the request of the disclosing Party.
For the purposes of these Terms of Service, “Confidential Information” shall be defined as all of the proprietary, non-public information of either Party disclosed pursuant to or in furtherance of these Terms of Service including but not limited to all Technical Information as defined herein and all data generated by the Software Platform at the Designated Locations. Notwithstanding the foregoing, “Confidential Information” shall not include any information, that the recipient can demonstrate through its records (i) was in its knowledge or possession prior to disclosure by the discloser, (ii) was in the public domain at the time of disclosure or subsequently entered the public domain through no fault of recipient, or (iii) was disclosed to recipient by a third party with the right to make such a disclosure. “Technical Information” shall be defined as all proprietary or non-public information, know-how, trade secrets, data, materials, inventions, source code, or discoveries owned by company that are necessary or useful to the Software Platform or Application and are in the possession of Company as of the date of the Order.
9. HIPAA COMPLIANCE
The Parties agree to comply with the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. § 1320d and the Health Information Technology for Economic and Clinical Health Act and any current and future regulations promulgated under either act, including, without limitation, the federal privacy regulations contained in 45 C.F.R. Parts 160 and 164 (the "Federal Privacy Regulations"), the federal security standards as contained in 45 C.F.R. Part 162 (the "Federal Security Regulations"), and the federal standards for electronic transactions contained in 45 C.F.R. Parts 160 and 162, all collectively referred to herein as the "HIPAA/HITECH Requirements." The parties agree not to use or further disclose any Protected Health Information (as defined in 45 C.F.R. § 164.501) or Individually Identifiable Health Information (as defined in 42 C.F.R. § 1320d), other than as permitted by the HIPAA/HITECH Requirements, these Terms of Service, and a business associate agreement incorporated herein by reference, as applicable. The parties will make their internal practices, books, and records relating to the use and disclosure of Protected Health Information available to the Secretary of Health and Human Services to the extent required for determining compliance with the Federal Privacy Regulations. This Section shall survive termination or expiration of this subscription.
10. WARRANTY AND LIABILITY
(a) Customer Warranty. Customer warrants and represents that (i) in entering into the subscription Customer has not relied on any sales representations other than those expressly set forth in terms and conditions set forth in these Terms of Service; (ii) the individual executing this subscription on behalf of Customer is authorized to enter into this subscription and has the power and authority to bind Customer to all the obligations set forth herein; (iii) Customer and Authorized Users have met all obligations set forth herein.
(b) Company Warranty. Company warrants and represents that (1) all Services provided under these Terms of Service will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards, and (2) the Software Platform will perform substantially in accordance with the Documentation and will be free from any material defects. This warranty shall not apply to problems affecting the Software Platform due to (i) electrical work, network, or other problems external to the Software Platform, or (ii) operation outside of the hardware specifications for Authorized Devices set forth herein. Upon receipt by Company of Customer’s written notice of any breach of this Limited Warranty, Company’s liability and Customer’s sole remedy shall be to the following: (A) in the case of the Software Platform, using reasonable commercial measures to correct the material non-conformity or providing a work-around to avoid the non-conformity, taking into account the severity of the non-conformity, or (B) in the case of nonconforming Services, using reasonable commercial measures at Company’s expense to re-perform or correct the performance or delivery of the Services so that the Services meet the standards set in the Limited Warranty.
(c) Disclaimer of Other Warranties. THE SOFTWARE PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS. THE SOFTWARE PLATFORM IS INTENDED AS A DECISION SUPPORT TOOL. CUSTOMER AND AUTHORIZED USERS ARE SOLELY RESPONSIBLE FOR RENDERING DECISIONS BASED ON INFORMATION OBTAINED THROUGH THE SOFTWARE PLATFORM UPON CONSIDERATION OF FACILITY POLICIES, PROCEDURES, TRAINING, AND OTHER FACTORS. THE SOFTWARE PLATFORM IS NEITHER A MEDICAL DEVICE, NOR IS IT AN ACCESSORY TO A MEDICAL DEVICE. FURTHERMORE, THE SOFTWARE PLATFORM IS NOT INTENDED FOR USE IN THE DIAGNOSIS OR TREATMENT OF PATIENTS OR TO PROVIDE MEDICAL ADVICE. THE SOFTWARE PLATFORM DOES NOT IDENTIFY BIOLOGICAL MATERIALS AND SHOULD NOT BE RELIED ON AS A BIOLOGIC TEST MODALITY. USE AND RELIANCE ON THE SOFTWARE PLATFORM AND THE SERVICES ARE AT CUSTOMER’S OWN RISK. COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR RESULTS OBTAINED FROM THE USE OF THE SOFTWARE PLATFORM WITH HARDWARE DEVICES THAT DO NOT MEET THE HARDWARE SPECIFICATIONS ESTABLISHED BY COMPANY. COMPANY ALSO EXPRESSLY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE PLATFORM WILL ALWAYS BE COMPLETELY ACCURATE, RELIABLE, OR ERROR-FREE; THAT ACCESS TO THE SOFTWARE PLATFORM AND SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, BUG-FREE, VIRUS-FREE, FREE OF DEFECTS, OR FREE OF TECHNICAL PROBLEMS; THAT ALL ERRORS, BUGS, OR DEFECTS CAN AND WILL BE CORRECTED; THAT DATA COLLECTED OR GENERATED BY THE SOFTWARE PLATFORM WILL NEVER BE LOST; OR THAT COMPANY WILL MEET ALL OF CUSTOMER OR AUTHORIZED USER’S NEEDS. COMPANY FURTHER DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR ANY THIRD-PARTY HARDWARE OR SERVICES PROVIDED TO CUSTOMER. WITH THE EXCEPTION OF THE LIMITED WARRANTY STATED ABOVE, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE PLATFORM AND THE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
(d) Consequential Damages. THE PARTIES SHALL IN NO EVENT BE LIABLE TO EACH OTHER FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF DATA OR PROFITS, LOSS OF BUSINESS OPPORTUNITIES, COSTS OF PROCUREMENT OR REPLACEMENT GOODS AND SERVICES, COVER, OR RELIANCE DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR THE DELIVERY, USE, PERFORMANCE, OR INTERRUPTION OF THE SOFTWARE PLATFORM, THE APPLICATIONS, HARDWARE DEVICES, OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, THIRD PARTY CLAIMS, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CONSEQUENTIAL DAMAGES; THIS SECTION APPLIES ONLY TO THE EXTENT AVAILABLE BY APPLICABLE LAW.
(e) Limitation of Liability. Company’s total cumulative liability to Customer from all causes of action and under all theories of liability in the aggregate shall be limited to the total amount of all fees paid by Customer in the twelve (12) month period immediately preceding the claim pursuant to this subscription. This limitation shall apply notwithstanding the failure of the essential purpose of any remedy thereunder.
(f) Class Action Waiver. BY ENTERING INTO THIS SUBSCRIPTION, CUSTOMER AND AUTHORIZED USERS EACH ACKNOWLEDGE AND AGREE THAT THEY JOINTLY AND INDIVIDUALLY WAIVE THEIR RIGHTS TO PARTICIPATE IN A CLASS ACTION OR OTHER REPRESENTATIVE ACTION AGAINST COMPANY IN A COURT OR ARBITRATION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT TO BE AGAINST PUBLIC POLICY. THE PARTIES FURTHER AGREE THAT CUSTOMER AND ANY AUTHORIZED USER MAY BRING DISPUTES AGAINST COMPANY ONLY IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. TO THE EXTENT EITHER CUSTOMER OR ANY AUTHORIZED USER IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST COMPANY, THE PARTIES AGREE THAT (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT) AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
11. INDEMNIFICATION
Company will indemnify, defend, and hold harmless Customer against any third-party claim and resulting loss, liability, damage, judgment, award, or expense arising from (a) a third-party claim that Company’s intellectual property infringes any third-party intellectual property right or (b) the grossly negligent acts or omissions or willful misconduct of Company’s employees and independent contractors. In order to be indemnified, Customer shall promptly notify Company in writing of the existence of the potential claim for indemnification, shall grant Company the right to control the defense of all such claims, and shall fully cooperate in the defense. If, as a result of any claim for indemnification for intellectual property infringement, Customer is enjoined from accessing the Software Platform, or if Company believes the Software Platform is likely to become the subject of a claim of infringement, Company at its sole option and expense shall either procure the right for Customer to continue to use the Software Platform, or alternatively, replace or modify the Software Platform to become non-infringing. If neither option is reasonably practicable, Company may elect in its sole and absolute discretion to refund the subscription fees previously paid for the then-current Term or Renewal Period, terminate the subscription on thirty (30) days prior written notice, and refund the subscription fees paid only for the then-current Term or Renewal Period.
12. MISCELLANEOUS
(a) Entire Understanding. These Terms of Service, along with the any other web pages linked hereto, contains the entire understanding of the Parties with respect to the subject matter contained herein, and shall supersede all prior agreements and understandings, whether written or oral. There are no restrictions, promises, covenants, or understandings other than those expressly set forth herein, and no rights or duties on the part of either Party are to be implied or inferred beyond those expressly provided for.
(b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to conflicts of law principles.
(c) Dispute Resolution. All disputes or controversies arising out of or in connection with these Terms of Service, their interpretation, performance, or termination, shall be submitted to binding arbitration in Santa Clara County, California, USA under the Commercial Rules of the American Arbitration Association. The proceeding shall be conducted in the English language with a single arbitrator and the costs of the arbitration, including administrative and arbitrators’ fees, shall be shared equally by the Parties. Each Party shall bear its own costs and attorneys’ and witnesses’ fees. The arbitration award shall be final, and each Party shall comply in good faith and submit itself to the jurisdiction of the appropriate courts for the sole purpose of the entry of such arbitrator’s award to render effective such arbitration decision. Notwithstanding the foregoing, judgment on the award by the arbitrator may be entered in any court having jurisdiction. If judicial enforcement or review of the arbitrator’s decision is sought, the prevailing Party shall be entitled to costs and reasonable attorneys’ fees.
(d) Severance. If any provision of these Terms of Service is held unenforceable or in conflict with the law of any jurisdiction, the validity of the remaining provisions shall not be affected by such holding. The Parties agree to negotiate and amend in good faith such provision in a manner consistent with the intentions of the Parties as expressed in these Terms of Service and the subscription entered into hereunder, if any invalid or unenforceable provision affects the consideration of either Party.
(e) Assignment. These Terms of Service shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. Neither Party may assign the terms or conditions set forth herein to a third party except that each Party may transfer the terms of the subscription to a successor in the event of a merger or a purchase of all or substantially all of such Party’s assets; provided, however, that such transfer may only occur if the assignee in each case agrees to be bound by each of the terms of these Terms of Service.
(f) Notices. All notices provided in connection with these Terms of Service will be in writing, and will be delivered by (i) certified or registered mail, postage prepaid and return receipt requested at the designated address listed in the subscription or (ii) courier and will be deemed effective upon receipt by the authorized representative and the address set forth above, or at such other addresses as the Parties may designate by written notice to each other.
(g) Waiver. No waiver by either Party of any breach of these Terms of Service, no matter how long continuing or how often repeated, shall be deemed a waiver of any subsequent breach thereof, nor shall any delay or omission on the part of either Party to exercise any right, power, or privilege hereunder be deemed a waiver of such right, power, or privilege.
(h) Conflicts. In the event of any conflict between the terms and conditions of these Terms of Service and any linked web page incorporated herein by reference, the terms set forth in these Terms of Service shall control.
Effective Date: March 27, 2023
