Terms and Conditions

These terms and conditions (these “Terms”) apply to the use of BeAssured Co.’s software-as-a-service (the “Platform”) available at beassured.co (the “Site”). These Terms are subject to change by BeAssured Co. (referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Site. You should review these Terms before using our Platform. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.

These Terms are an integral part of the Website Terms and Conditions, https://beassured.ai/terms-and-conditions, that apply generally to the use of our Site. You should also carefully review our Privacy Policy, https://beassured.ai/privacy-policy, before using the Platform or this Site. You shall abide by any terms, conditions, agreements and policies governing the Platform set forth in the Website Terms and Conditions and Privacy Policy. These Terms form an integral part of your agreement with us, including, if relevant, the applicable Order Form(s) (the “Order Form”) and other applicable appendices, or master services agreements as the case may be, (collectively with these Terms, the “Agreement”) which together govern your use of the Platform.

Subject to your compliance with the Agreement, we hereby grant you a non-exclusive, non-transferable (except in compliance with Section 25) right to access and use the Platform and the Documentation (as defined below) during the Term (as defined below) in accordance with the Agreement, solely by Authorized Users (as defined below) for your internal business purposes. We shall provide to you the Access Credentials within a reasonable time following the date you sign up for the Platform. You shall pay the fees set forth on the Order Form for use of the Platform in accordance with the Order Form and Section 7 (the “Subscription Fees”).

You will not, and will not permit any other person to, access or use the Provider Materials except as permitted by the Agreement. You shall not copy, distribute, create derivative works of or modify the Provider Materials in any way. You agree that: (a) you shall only permit your officers, employees and agents (i) who you have authorized to access and use the Provider Materials under the rights granted to you pursuant to this Agreement; and (ii) for whom access to the Provider Materials has been purchased hereunder (collectively, the “Authorized Users”) to use the Provider Materials for your benefit and not for any competitive purpose or any other purpose to our detriment or commercial disadvantage; (b) you shall use commercially reasonable efforts to prevent the unauthorized use or disclosure of the Provider Materials; (c) you shall not sell, resell, rent, license, assign, transfer or lease the Provider Materials; (d) shall not use the Provider Materials to store or transmit infringing or otherwise unlawful or tortious material, or to store or transmit material in violation of third party rights; (e) you shall not interfere with or disrupt the integrity or performance of the Provider Materials or third-party data contained therein; (f) you shall not reverse engineer, translate, disassemble, decompile or otherwise attempt to create any source code which is derived from the Provider Materials; (g) you shall not permit anyone other than the Authorized Users to view or use the Platform and any screen shots of the Platform; (h) you shall not disclose the features of the Provider Materials to anyone other than the Authorized Users; (i) you shall not bypass or breach any security device or protection used by the Provider Materials; and (j) you shall not access or use the Provider Materials in a manner or for any purpose that is deceptive, fraudulent, obscene, defamatory, threatening, harassing, tortious or unlawful; and (k) you are responsible for all actions taken by the Authorized Users in connection with the Provider Materials and breach of the Agreement, the Website Terms and Conditions and the Privacy Policy.

All right, title and interest in and to the Provider Materials, the features of the Platform and images of the Platform as well any and all derivative works or modifications thereof (the “Derivative Works”), and any accompanying documentation, manuals or other materials used or supplied under the Agreement or with respect to the Provider Materials or Derivative Works (the “Documentation”), and any reproductions works made thereof, remain with us. You shall not remove any product identification or notices of such proprietary rights from the Platform. You acknowledge and agree that, except for the limited use rights established hereunder, you have no right, title or interest in the Provider Materials, the Derivative Works or the Documentation. Nothing in the Agreement is deemed to grant you, either directly or indirectly, or by implication, estoppel or otherwise, any license or rights other than those expressly granted in Section 1. You acknowledge and agree that Resultant Data is, and shall remain, our sole and exclusive property. In furtherance of the foregoing, to the extent you own any such Resultant Data by operation of law, you hereby unconditionally and irrevocably assign and transfer to us all right, title and interest in and to the Resultant Data, including all intellectual property rights relating thereto. Notwithstanding anything to the contrary contained in the foregoing or elsewhere in the Agreement, our use of the Resultant Data shall not be restricted in any way. You are and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted under the Agreement. You grant us limited, non-exclusive license during the Term of the Agreement to process and store Customer Data for the sole purpose of providing access to the Platform and the services hereunder.

Except as otherwise expressly provided in the Agreement, we have and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials. We will maintain physical, administrative and technical safeguards that are reasonably designed to maintain the privacy and security of the Customer Data and to comply with all applicable laws. We reserve the right, in our sole discretion, to discontinue, add, adapt, or otherwise modify any design or specification of the Provider Materials and/or our policies, procedures, and requirements specified or related hereto. All rights not expressly granted to you are reserved to us, including the right to provide all or any part of the Platform to other parties.

You have and will retain sole control over the operation, maintenance, and management of, and all access to and use of, your IT Systems. You are responsible for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials you provide or are provided on your behalf (including by any Authorized User) in connection with the Platform; (c) your IT Systems (including setting up, maintaining and operating such IT Systems in good repair); (d) the security and use of the Access Credentials used by you and your Authorized Users; and (e) all access to and use of any Provider Materials directly or indirectly by or through your IT’s Systems or your Authorized Users’ Access Credentials. You shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to protect against any unauthorized access to or use of the Platform and Confidential Information (as defined below) (including Customer Data) through the Access Credentials used by you and your Authorized Users. You are responsible for ensuring that your website business profiles (including without limitation, profiles on Google, Yelp and other social media platforms) are available and we are provided the appropriate access to perform the services subject to the Agreement. You shall provide cooperation as we may reasonably request to enable us to exercise your rights and perform your obligations under this Agreement. We are not responsible or liable for any delay or failure of performance to the extent caused by your delay or failure to perform any of your obligations under the Agreement. If you become aware of any actual or threatened activity prohibited by the Agreement, you shall, and shall cause your Authorized Users to, promptly (i) take reasonable and lawful measures within your respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Platform), and (ii) notify us of any such actual or threatened activity.

The initial term of the Agreement commences as of effective date of the Order Form and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until (i) if you selected an annual subscription, one year from such date or (ii) if you selected a monthly subscription, one month from such date (in each case, the “Initial Term”). The Agreement will automatically renew for additional successive terms of equal length as the Initial Term unless earlier terminated pursuant to the Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 15 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”). The Subscription Fees for the applicable upcoming Renewal Term shall be at our then-current rates; provided, that we will provide you with prior notice of any increase in the Subscription Fees from the Subscription Fees set forth on the Order Form. In addition to any other express termination right set forth elsewhere in the Agreement, either party may terminate the Agreement, effective immediately upon written notice to the other party, if the other party (a) materially breaches the Agreement, and such breach, if capable of being cured, remains uncured 10 days after the non-breaching party provides the breaching party with written notice of such breach, or (b) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due (including by becoming subject to, voluntarily or involuntarily, any bankruptcy proceeding or a general assignment for the benefit of its creditors). Notwithstanding anything to the contrary contained in the foregoing or elsewhere, we may terminate the Agreement, effective on written notice to you, if you breach any of your obligations pursuant to Sections 2, 5, 10, 15, 16 or 17. Upon any expiration or termination of the Agreement, we will block your access to the Provider Materials and all rights, licenses, consents, and authorizations that we granted hereunder will immediately terminate. You will no longer be able to use the Provider Materials or download any submitted or generated data. Except for a termination due to our uncured material breach, all accrued fees and expenses will become immediately due and payable on receipt of our invoice therefor. We shall, upon any termination for our uncured material breach, provide a pro-rated refund of the amounts you paid for the Platform which have not been used for the period after the effective date of termination for the remaining Term of the Agreement. We may retain Customer Data in our backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; provided, however, that such retention shall not exceed a reasonable period of time, and such Customer Data will remain subject to all confidentiality, security, and other applicable requirements of the Agreement until it is deleted.

Except as otherwise agreed between the parties, you shall pay the fees set forth on the Order Form. All fees and any other amounts payable under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income. If you selected the annual subscription on the Order Form, you shall pay the subscription fees in advance on an annual basis within 30 days after the delivery date of any invoice. If you selected the monthly subscription on the Order Form, you shall pay the subscription fees in advance on a monthly basis within [10 days after the delivery date of any invoice]. Invoices may be delivered by email at the email address provided in the Order Form. Amounts payable to us under the Agreement are not subject to any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. If you fail to make any payment when due then, in addition to all other remedies that may be available, we may charge interest on the past due amount at the rate of 2% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law and you shall reimburse us for all reasonable collection costs that we incur, including attorneys’ fees, court costs, and collection agency fees. If such failure continues for 30 days following written notice thereof, we may suspend performance of the Platform until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to you or any other person by reason of such suspension.

Nothing in the Agreement may be construed or interpreted as constituting either party hereto as the agent, principal, employee or joint venturer of the other. The parties are independent contractors. Neither may assume, either directly or indirectly, any liability of or for the other party. Neither party has the authority to bind or obligate the other party and neither party may represent that it has such authority. Notwithstanding the foregoing, we may engage third parties to perform certain portions of the Provider Materials.

During the Term, we shall have the right to use your logos for the purpose of providing the Platform to you and your Authorized Users.

Each party acknowledges and agrees that in making available and using the Platform, such party, as the case may be, may disclose to the other party certain confidential, proprietary trade secret information (“Confidential Information”). Confidential Information may include, but is not limited to, the Platform, computer programs, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information or business plans. Each party agrees that it will not, without the express prior written consent of the other party, disclose any Confidential Information or any part thereof to any third party. Notwithstanding the foregoing, the parties acknowledge that each party shall be permitted to comply with any all federal and state laws concerning disclosure provided that any such required disclosure will not include any screen shots of the Platform. The disclosing party shall provide prior written notice of any required disclosure of the non-disclosing party’s Confidential Information to the non-disclosing party and shall disclose only the information that is required to be disclosed by law. In the event that you request from us any reports or other information for purposes of complying with federal and state disclosure laws, we shall provide such information within 10 business days following such request. Confidential Information excludes information: (a) that is or becomes generally available to the public through no fault of the receiving party; (b) that is rightfully received by the receiving party from a third party without limitation as to its use; or (c) that is independently developed by receiving party without use of any Confidential Information. At the termination of the Agreement, each party will return the other party all Confidential Information of the other party. Each party also agrees that it shall not duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with any Confidential Information of the other party or any firmware, circuit board or software provided therewith.

We represent and warrant to you that we have all rights necessary in and to any patent, copyright, trademark, service mark or other intellectual property right used in, or associated with, the Platform, and that we are duly authorized to enter into the Agreement and make the Platform available to you pursuant to the Agreement.

WE SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ON THE PROVIDER MATERIALS. THE PLATFORM AND ALL PROVIDER MATERIALS ARE PROVIDED “AS IS”. ANY EXCEPT AS SET FORTH IN SECTION 11, WE MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROVIDER MATERIALS OR ANY OTHER INFORMATION AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURAGE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT THE PLATFORM OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. OUR SOLE LIABILITY FOR BREACH OF THE REPRESENTATION AND WARRANTY SET FORTH IN SECTION 11, AND YOUR SOLE REMEDY, SHALL BE THAT WE SHALL INDEMNIFY AND HOLD RECIPIENT HARMLESS FROM AND AGAINST ANY LOSS, SUIT, DAMAGE, CLAIM OR DEFENSE ARISING OUT OF BREACH OF THE REPRESENTATION AND WARRANTY.

WE SHALL ONLY BE LIABLE TO YOU FOR DIRECT DAMAGES PURSUANT TO THE AGREEMENT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11, IN NO EVENT SHALL WE BE LIABLE FOR OR OBLIGATED IN ANY MANNER FOR ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE PLATFORM; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER YOU WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14, IN NO EVENT WILL OUR COLLECTIVE AGGREGATE LIABILITY AND OUR LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO US UNDER THE AGREEMENT. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

We will defend and indemnify you against any damages, losses, liabilities, causes of action, costs or expenses arising from our breach of the Agreement, gross negligence or intentional misconduct. You will defend and indemnify us against any damages, losses, liabilities, costs or expenses (including reasonable attorneys’ fees) arising from your breach of the Agreement, gross negligence or intentional misconduct. You acknowledge that we do not create any of the data and information included in the Platform and is not responsible for and does not assess or make any suggestions or recommendations with respect to any such data or information. You will defend and indemnify us against any damages, losses, liabilities, costs or expenses (including reasonable attorneys’ fees), claims, demands, suits or proceedings made or brought against us by a third party in connection with your use or an Authorized User’s use of the Provider Materials, or any action or inaction taken by a third party, in connection with such third party providing services for you or otherwise at your or an Authorized User’s request or direction.

You acknowledge that: (a) the Internet is a worldwide network of computers, (b) communication on the Internet may not be secure, (c) the Internet is beyond the control of us, and (d) we do not own, operate or manage the Internet. You also acknowledge that there are inherent risks associated with using the Platform, including but not limited to the risk of breach of security, the risk of exposure to computer viruses and the risk of interception, distortion, or loss of communications. You assume these risks knowingly and voluntarily releases us from all liability from all such risks. Not in limitation of the foregoing, you hereby assumes the risk, and we shall have no responsibility or liability of any kind hereunder, for: (1) errors in the Provider Materials resulting from misuse, negligence, revision, modification, or improper use of all or any part of the Platform by any entity other than us or our authorized representatives; (2) any version of the Platform other than the then-current unmodified version provided to you; (3) your failure to timely or correctly install any updates to your software; (4) problems caused by connecting or failure to connect to the Internet; (5) failure to provide and maintain the technical and connectivity configurations for the use and operation of the Provider Materials that meet our recommended requirements; (6) nonconformities resulting from or problems to or caused by products or services that are not ours; or (7) data or data input, output, accuracy, and suitability, which shall be deemed under our exclusive control.

The Platform does not replace your need to maintain regular data backups or redundant data archives. WE HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

We may suspend or otherwise deny you, any Authorized User’s, or any other person’s access to or use of all or any part of the Platform, without liability, if: (a) we are required to do so by applicable law or government authority; or (b) we believe, in our good faith and reasonable discretion, that you or any Authorized User have failed to comply with any material term of the Agreement, or accessed or used the Platform in an unauthorized manner. Notwithstanding the foregoing, (y) to the extent practicable, we will provide advance notice of any such suspension, along with an opportunity to cure, if curable; and (z) in the event of any suspension lasting longer than 10 days, we shall provide you with access to or a copy of your Customer Data upon your payment in full of any amounts owed under the Agreement. This Section 17 does not limit any of our other rights or remedies, whether at law, in equity, or under the Agreement.

Subject to the terms and conditions of the Agreement, we will (i) provide you with remote technical support via the Platform and/or e-mail on business days during our normal business hours and (ii) use commercially reasonable efforts to Resolve any Incidents with the Platform within a reasonable period of time but we do not guarantee that we will be able to respond within any specific time period or that any Incident will be Resolved. You acknowledge and agree that we may provide remote services to you to assist in analyzing and Resolving any Incident. We are not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of your obligations under the Agreement, the Website Terms and Conditions and the Privacy Policy in accordance with the respective terms and conditions of these agreements (“Customer Performance Failure”). We have no obligation to provide support services relating to Errors that, in whole or in part, arise out of or result from any of the following (each, a “Service Exception”): (a) software, or the media on which it is provided, that is modified or damaged by you or a third party; (b) any operation or use of, or other activity relating to, the Platform, including any incorporation in the Platform of, or combination, operation or use of the Platform in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for your use; (c) any Third -Party Materials; (d) any negligence, abuse, misapplication or misuse of the Platform other than by us, including any your use of the Platform other than as specified in the Agreement or expressly authorized by us in writing; (e) any Customer Performance Failure; (f) the operation of, or access to, your or a third party’s system or network; (g) any relocation, installation or integration of the Platform; (h) any beta software, software that we make available for testing or demonstration purposes, temporary software modules, or software for which we did not receive a license fee; (i) any breach of or noncompliance with ay provision of the Agreement, the Website Terms and Conditions or the Privacy Policy by you or your representatives; or (j) any force majeure event pursuant to Section 20.

There are no third party beneficiaries to the Agreement.

Neither party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, earthquakes, blackouts, accidents, or strikes. In the event of any such delay, any applicable period of time for action by said party may be deferred for a period of time equal to the time of such delay, except that a party’s failure to make any payment when due hereunder shall not be so excused.

All notices required in the Agreement shall be effective: (a) if given personally, upon receipt; (b) if given by facsimile or electronic mail, when such notice is transmitted and confirmation of receipt obtained; (c) if mailed by certified mail, postage prepaid, to the last known address of each party, three business days after mailing; or (d) if delivered to a nationally recognized overnight courier service, one business day after delivery, in each case, at the addresses set forth on the Order Form or as subsequently disclosed in writing to the other party.

THE PLATFORM IS OPERATED FROM THE US. ALL MATTERS ARISING OUT OF OR RELATING TO THE AGREEMENT ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF NEW YORK. THE PARTIES IRREVOCABLY AGREE THAT ALL ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT ARISING OUT OF OR FROM OR RELATED TO THE AGREEMENT SHALL BE LITIGATED ONLY IN COURTS LOCATED IN THE STATE OF NEW YORK. THE PARTIES HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID STATE. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRANSFER OR CHANGE VENUE OF ANY SUCH ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT. THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THE AGREEMENT, AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.

You acknowledge and agree that a breach or threatened breach of any of your obligations under the Agreement would cause us irreparable harm for which monetary damages would not be an adequate remedy and agree that, in the event of such breach or threatened breach, we will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

The prevailing party in any proceeding in connection with the Agreement shall be entitled to recover from the non-prevailing party all costs and expenses, including without limitation, reasonable attorneys’ and paralegals’ fees and costs incurred by such party in connection with any such proceeding.

The Agreement set out the entire agreement between the parties relative to the subject matter hereof and supersedes all prior or contemporaneous agreements or representations, oral or written. You may not assign the Agreement without our prior written consent; provided, however, that you may assign this Agreement in its entirety to a successor-in-interest by way of merger, acquisition or sale of substantially all your assets. We may assign the Agreement without your consent. Any purported assignment in violation of this Section 25 is void. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

The waiver or failure by either party to exercise or enforce any right provided for in the Agreement shall not be deemed a waiver of any further right under the Agreement. Any provision of the Agreement held to be invalid under applicable law shall not render the Agreement invalid as a whole, and in such an event, such provision shall be interpreted so as to best accomplish the intent of the parties within the limits of applicable law.

The rights and obligations contained in the Agreement shall survive any expiration or termination of your use of the Platform.

The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement. For purposes of the Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole.

“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify identity and authorization to access and use the Platform. “Customer Data” means all information, data, and other content, in any form or medium and including any personally identifiable information, that is collected, downloaded, or otherwise received, directly or indirectly, from you or an Authorized User by or through the Platform or that incorporates or is derived from the Processing of such information, data, or content by or through the Platform. For clarity, Customer Data does not include Resultant Data. “Error” means a reproducible failure of the Platform to perform in substantial conformity with the specifications set forth herein, whose origin can be isolated to a single cause. “Incident” means a support request that begins when you contact us to report one specific Error and ends when we either: (a) Resolve the Error; or (b) determines in our sole discretion that the Error cannot be Resolved. “IT Systems” means, for each party, such party’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by such party or through the use of thirdparty services. “Provider Materials” means the Platform, Documentation, Derivative Works, and our IT Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by us or any subcontractor in connection with the Platform or otherwise comprise or relate to the Platform or our IT Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from our monitoring of your access to or use of the Platform, but do not include Customer Data. “Process” means to take any action or perform any operation or set of operations that the Platform is capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings. “Resolve” means the provision of: (a) services that, in our sole discretion, correct the Error; (b) information to you that corrects the Error; (c) information to you on how to obtain a software solution that corrects the Error; (d) notice to you that the Error is caused by a known, unresolved issue or an incompatibility issue with the Platform; (e) information to you that identifies the Error as being corrected by upgrading to a newer release of the Platform; or (f) notice to you that the Error has been identified as arising out of or resulting from a Service Exception. “Resultant Data” means (i) data and information we provide or any third party (other than you) provides related to the Platform and (ii) aggregated and anonymized data and information related to your use of the Platform, including to compile statistical and performance information related to the provision and operation of the Platform and any data created by our artificial intelligence systems. “Third-Party Materials” 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 Platform that are not proprietary to us.

¹ NTD: subject to continuing review.