This Master Subscription Agreement is made and entered into between Athenic, Inc., a Delaware corporation having its principal place of business at 447 Sutter Street, Ste 405 #95, San Francisco, CA 94108 (“Athenic”) and Customer (defined below) (each a “Party,” together the “Parties”). This Agreement, including any exhibits and order forms issued hereunder (the “Agreement”), sets forth the terms and conditions pursuant to which Customer is permitted to access and use Athenic's proprietary web-based Hosted Service (defined below). Athenic reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) thirty (30) days from the date of such update or modification; or (ii) Customer’s continued use of the Hosted Service.

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES. THE HOSTED SERVICES ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

If Customer and Athenic have executed a written agreement governing Customer’s access to and use of the Services as an Athenic customer, then the terms of such signed agreement will govern and will supersede this Agreement. The Parties agree as follows:

• DEFINED TERMS

  
  

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting power. 

“Collected Data” means information obtained by Athenic from publicly available sources or its third-party content providers and made available to Customer through the Hosted Service or pursuant to an Order Form, as more fully described in the Documentation. 

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Start Date”) where such person or entity either signs an Order Form referencing this Agreement, clicks a box indicating acceptance of this Agreement, or uses the Hosted Service. 

“Customer Data” means electronic data and information, including but not limited to documents, messages, graphics, images, files, data, and other information submitted by or for Customer to the Hosted Service, but excludes Collected Data and Non-Service Applications.

"Deployment Attributes" means the quantified usage of the Hosted Service as defined in an Order Form, which may include the number of questions or other licensing attributes.

“Documentation” means the Athenic product documentation relating to the operation and use of the Hosted Service, including technical program or interface documentation, operating instructions, update notes, and support knowledge base, as made available and updated from time to time by Athenic. 

“Hosted Service” means Athenic’s proprietary web-based analytics AI business intelligence tool ordered by Customer under an Order Form or online purchasing portal, to be provided by Athenic to Customer as a subscription service and made accessible on a website designated by Athenic. "Hosted Service" excludes Collected Data. 

 “Malicious Code” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (a) cause the Hosted Service to cease functioning; (b) damage or corrupt any Athenic owned or controlled data, programs, equipment, systems, servers or communications; or (c) interfere with the operations of the Hosted Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices). 

“Non-Service Application” means a web-based, mobile, offline, or other software application functionality that interoperates with a Hosted Service, that is provided by Customer or a third-party and/or listed in the Documentation. Non-Service Applications, other than those obtained or provided by Customer, will be identifiable as such. 

“Order Form” means an ordering document or online order specifying the Hosted Services to be provided hereunder that is entered into between Customer and Athenic or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto.

“Prohibited Content” means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Athenic in its sole, but reasonable, discretion. 

“Subscription Term” means the period(s) during which Customer is authorized to use the Hosted Services pursuant to an Order Form. 

“Support” means the technical support as specified in Athenic’s then current Support Policy. 

“Updates” means updates of the Hosted Services for repairs, enhancements, or new features applied by Athenic to Customer’s instances, including updates to the Documentation as a result of such updates, at no additional fee during the Subscription Term. Updates shall not include additional new functionality or upgrades to modules or applications that Customer has not already subscribed to in an Order Form and for which Athenic requires a separate charge from its other customers generally for such new modules or applications. 

“Users” means employees of Customer and its Affiliates and their representatives, consultants, contractors, subcontractors, or agents who are authorized to use the Hosted Service and have been supplied unique user identifications and passwords by Customer.

• ATHENIC’S OBLIGATIONS

2.1 Provision of Hosted Service. Subject to the terms and conditions of this Agreement and up to the number of Deployment Attributes and other restrictions as documented on the applicable Order Form, Athenic grants to Customer a limited, worldwide, non-exclusive, non-transferable right to access and use the Hosted Service solely for Customer’s internal business purposes during the Subscription Term. 

2.2 Support & Updates. Athenic shall: (a) provide the level of support specified in the Order Form; and (b) provide Updates at no additional charge during the Subscription Term. 

2.3 Security. Athenic has implemented and shall maintain a written information security program of policies, procedures, and controls (“Security Program”) governing the processing, storage, transmission, and security of Customer Data. The Security Program shall include industry standard practices designed to protect Customer Data from unauthorized access, acquisition, use, disclosure, or destruction. Athenic may periodically review and update the Security Program to address new and evolving security technologies, changes to industry standard practices, and changing security threats, provided that any such update does not materially reduce the overall level of security provided to Customer as described herein.

2.4 Breach Notification. Athenic shall report to Customer’s support contacts the accidental or unlawful alteration, unauthorized disclosure of, or access to Customer Data (“Breach”) within twenty-four (24) hours, after Athenic determines that a Breach has occurred, unless restricted by law. Accordingly, Athenic shall share information about the nature and consequences of the Breach that is reasonably requested by Customer to enable it to notify affected individuals, government agencies, and/or credit bureaus. Customer has sole control over the content of Customer Data and is solely responsible for determining whether to notify impacted individuals and the applicable regulatory bodies or enforcement commissions and for providing such notice. Customer shall ensure that the support contacts be current and ready to receive any breach notification from Athenic.

2.5 Audit Report. Athenic shall engage at its expense, an independent accounting firm to conduct, on an annual basis, an audit of Athenic’s operations with respect to the Hosted Services in accordance with the Statement on Standards for Attestation Engagements No. 18 (the “SSAE 18”), and have such accounting firm issue SSAE 18, SOC 2 Type 2 reports (or substantially similar report of a successor auditing standard in the event the SSAE 18 auditing standard is no longer an industry standard) (the “Auditor’s Report”), which shall cover Athenic’s security policies, procedures, and controls.

2.6 Privacy Regime. If and to the extent applicable, Athenic and Customer agree to comply with the relevant privacy exhibits made available at https://www.athenic.com/privacy-policy, each of which are incorporated by reference into this Agreement as Exhibit A: (Exhibit A-1) EU Privacy Annex (DPA) and US Privacy Annex (Exhibit A-2).

• PROPRIETARY RIGHTS

  • Athenic's Intellectual Property Right. All rights, title, and interest in and to all intellectual property rights in the Hosted Service (including all derivatives, modifications, tools, improvements, and enhancements thereof) are and shall be owned exclusively by Athenic notwithstanding any other provision in this Agreement or Order Form. The Athenic name, logo, and product names associated with the Hosted Service are trademarks of Athenic, and no right or license is granted to use them. Each Party shall reproduce the copyright notice and any other legend of ownership on any copies made under the licenses granted in this section. All rights not expressly granted to Customer are reserved by Athenic. Athenic alone shall own all rights, title, and interest in and to any suggestions, enhancement requests, feedback, or recommendations provided by Customer or any third party relating thereto.

  • Customer's Intellectual Property Right. As between Customer and Athenic, Customer shall retain all right, title, and interest in and to all Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, intellectual property ownership of, and right to use all Customer Data, and hereby warrants that it has and will continue to have all rights and consents necessary to allow Athenic to use all such data as contemplated by this Agreement. Customer hereby grants to Athenic a royalty-free, fully paid, non-exclusive, non-transferable (except as set forth in Section 12.4 (Assignment)), sub-licensable, worldwide right and license to reproduce, use, process, transfer, and store Customer Data solely for the purposes of performing Athenic’s obligations under this Agreement and any other activities expressly agreed to by Customer. For clarity, Customer Data does not include Aggregate Data or Collected Data.

• USE OF THE SERVICES AND COLLECTED DATA

  • Customer Responsibilities. Customer will: (a) be responsible for its Users’ compliance with this Agreement, Documentation, and Order Forms, (b) be responsible for the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Hosted Services, and the interoperation of any Non-Service Applications with which Customer uses Hosted Services or Collected Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Hosted Services and Collected Data, and notify Athenic promptly of any such unauthorized access or use, (d) use Hosted Services and Collected Data only in accordance with this Agreement, Documentation, Order Forms, and applicable laws and government regulations, and (e) comply with terms of service of any Non-Service Applications with which Customer uses Hosted Services or Collected Data. Any use of the Hosted Services in breach of the foregoing by Customer or Users that in Athenic’s judgment threatens the security, integrity, or availability of Hosted Services, may result in Athenic’s immediate suspension of the Hosted Services; however, Athenic will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension. 

  • Use Restrictions. Customer will not, directly or indirectly, and will not permit or authorize third parties to: (a) make any Hosted Service or Collected Data available to anyone other than Customer or its Users, or use any Hosted Service or Collected Data for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent, or lease any Hosted Service or Collected Data, or include any Hosted Service or Collected Data in a service bureau or outsourcing offering, (c) use the Hosted Service or Non-Service Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Hosted Service or Non-Service Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Hosted Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Hosted Service or Collected Data or its related systems or networks, (g) permit direct or indirect access to or use of any Hosted Service or Collected Data in a way that circumvents a contractual usage limit, or use any Hosted Service to access or use any Athenic intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Hosted Service or any part, feature, function or user interface thereof, (i) copy Collected Data except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Hosted Service or Collected Data, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Hosted Service or Collected Data or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Hosted Service, (3) copy any ideas, features, functions or graphics of the Hosted Service, or (4) determine whether the Hosted Services are within the scope of any patent (together (a) through (k), the “Restrictions”).

• Non-Athenic Products and Services

  • Acquisition of Non-Athenic Products or Services. Athenic or third parties may make available third-party products or services, including, for example, Non-Service Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-Athenic provider, product or service is solely between Customer and the applicable non-Athenic provider. Athenic does not warrant or support Non-Service Applications or other non-Athenic products or services, whether or not they are designated by Athenic as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Athenic is not responsible for any disclosure, modification, or deletion of Customer Data resulting from access by such Non-Service Application or its provider.

  • Integration with Non-Service Applications. The Hosted Services may contain features designed to interoperate with Non-Service Applications. Athenic cannot guarantee the continued availability of such Hosted Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Service Application ceases to make the Non-Service Application available for interoperation with the corresponding Hosted Service features in a manner acceptable to Athenic.

  • Restricted Information. Unless otherwise agreed by the Parties in writing on an Order Form with reference to this Section 5.3, Customer shall not (and shall use commercially reasonable efforts to ensure that its suppliers do not) upload, provide or submit any sensitive personal information as defined in Article 9 and 10 of the EU General Data Protection Regulation (GDPR) and other applicable data protection laws, or personal health information (meaning health or medical condition of an individual or the provision of health care to an individual) (“Restricted Information”) to the Hosted Services.

• FEES AND PAYMENT

  • Fees and Payment Terms. Customer will pay Athenic the fees set forth in the applicable Order Form. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month, or the maximum rate permitted by law, whichever is lower. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees and costs) incurred by Athenic to collect any undisputed amount that is not paid when due. Amounts due from Customer under this Agreement may not offset. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars.

  • Suspension of Hosted Service and Acceleration. If any undisputed charge owing by Customer under this or any other agreement for Hosted Services is thirty (30) days or more overdue, Athenic may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Hosted Services until such amounts are paid in full, provided that Athenic will give Customer at least ten (10) days’ prior notice that its account is overdue, in accordance with the “Notice” section below for billing notices, before suspending Hosted Services to Customer.

  • Taxes. Other than net income taxes imposed on Athenic, Customer will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Customer will pay any additional taxes as are necessary to ensure that the net amounts received by Athenic after all such taxes are paid are equal to the amounts that Athenic would have been entitled to in accordance with this Agreement as if the taxes did not exist.

  • Invoicing Information. Athenic shall deliver invoices to Customer via email to the email address(es) set forth in Section 12.1 (Notices).Customer agrees to provide Athenic with complete and accurate invoicing and contact information for all Order Form(s) and shall inform Athenic of any changes to the Customer's contact Information. Customer’s failure to timely provide such information, including any purchase order(s), as applicable, shall not relieve Customer of any fees, penalties, or interest herein, or affect any right of Athenic to terminate under this Agreement.

• TERM AND TERMINATION

  • Term. This Agreement commences on the Start Date and continues until all Order Forms subject to this Agreement have expired or terminated, unless this Agreement is earlier terminated as set forth herein. Order Forms for Hosted Service under this Agreement will commence upon the Start Date and shall be in effect during the Subscription Term of such respective Order Form(s). 

  • Termination. A Party may terminate this Agreement for cause: (a) upon thirty (30) days written notice of a material breach to the other Party if such breach remains uncured at the expiration of such period, or (b) if the other Party becomes the subject of a petition in a bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors. 

  • Termination Effects. If this Agreement is terminated by Customer in accordance with the “Termination” section above or "Severability" section below, Athenic will refund Customer any prepaid fees covering the remainder of the Subscription Term of all Order Forms after the effective date of termination. If this Agreement is terminated by Athenic in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the Subscription Term of all Order Forms for Hosted Services provided up to the termination date to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Athenic for the period prior to the effective date of termination.

  • Surviving Provisions. The sections titled “Defined Terms," "Proprietary Rights, “Use Restrictions," "Fees and Payment," "Term and Termination," "Indemnification Obligations," "Limitations of Liability," "Confidentiality," and "General" will survive any termination or expiration of this Agreement, and the section titled “Data Privacy” will survive any termination or expiration of this Agreement for so long as Athenic retains possession of Customer Data.

• WARRANTY AND DISCLAIMER

  • Mutual Warranties. Each Party warrants that: (a) it is a corporation, partnership, or limited liability company, as applicable, duly organized, validly existing, and in good standing under the laws of the state in which it is incorporated; (b) it has all requisite power and authority to execute this Agreement and to perform its obligations hereunder; and (c) the execution, delivery, and performance of this Agreement has been duly authorized and this Agreement is a valid and binding agreement enforceable in accordance with its terms. 

  • Customer Warranties. Customer represents and warrants it: (a) is entitled to transfer, or enable the transfer of, all Customer Data to Athenic; (b) has all rights necessary to grant Athenic the licenses set forth in this Agreement; and (c) will not transmit any Prohibited Content to ATHENIC whether by means of the Hosted Service or as required for Athenic’s provision of Support hereunder.

  • Athenic Warranties. 

    • Athenic warrants, during the Subscription Term, that: (a) Customer’s production instances of the Hosted Services shall materially conform to the Documentation; and (b) the functionality of the Hosted Services at the time of the Order Form shall not materially decrease during the Subscription Term.

    • To submit a warranty claim under this Section, Customer shall provide written notice of a warranty claim specifying the non-conformity. If the non-conformity persists without relief more than thirty (30) days after written notice of a warranty claim provided to Athenic under this Section, then Customer may terminate the affected Hosted Services and Athenic, as its sole liability in connection with a breach of this warranty, shall refund to Customer any prepaid subscription fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination. Notwithstanding the foregoing, this warranty shall not apply to any non-conformity due to any modification of or defect in the Hosted Services that is made or caused by someone other than Athenic (or someone acting at Athenic’s direction).

  • EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, ATHENIC MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY. ATHENIC EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND NON-INFRINGEMENT. ATHENIC DOES NOT WARRANT THAT (i) THE HOSTED SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE HOSTED SERVICES WILL BE SECURE OR UNINTERRUPTED, OR (ii) INFORMATION PROVIDED THROUGH THE HOSTED SERVICE WILL ALWAYS BE AVAILABLE. ATHENIC EXERCISES NO CONTROL OVER ANY CONTRIBUTOR AND EXPRESSLY DISCLAIMS LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER’S USE OF THE HOSTED SERVICES. 

• INDEMNIFICATION OBLIGATIONS

  • Customer Indemnification. Athenic will defend Customer and its Affiliates against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that any Hosted Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Athenic in writing of, a Claim Against Customer, provided Customer (a) promptly gives Athenic written notice of the Claim Against Customer, (b) gives Athenic sole control of the defense and settlement of the Claim Against Customer (except that Athenic may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Athenic all reasonable assistance, at Athenic’s expense. If Athenic receives information about an infringement or misappropriation claim related to a Hosted Service, Athenic may in its discretion and at no cost to Customer (i) modify the Hosted Service so that it is no longer claimed to infringe or misappropriate, without breaching Athenic’s warranties under Section 8, (ii) obtain a license for Customer’s continued use of that Hosted Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Hosted Service upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if a Claim Against Customer arises from the use or combination of the Hosted Service or any part thereof with software, hardware, data, or processes not provided by Athenic, if the Hosted Service or use thereof would not infringe without such combination. 

  • Athenic Indemnification. Customer shall defend Athenic and its Affiliates against any claim, demand, suit or proceeding made or brought against Athenic by a third party alleging (a) Customer or an User violating a Restriction; (b) Customer’s breach of Section 8.2 (Customer Warranties); and (c) any allegation by a governmental body that use of Customer Data, as permitted by Athenic under this Agreement or at Customer’s request or direction, has violated any applicable law (a “Claim Against Athenic”), and will indemnify Athenic from any damages, attorney fees and costs finally awarded against Athenic as a result of, or for any amounts paid by Athenic under a settlement approved by Customer in writing of, a Claim Against Athenic, provided Athenic (i) promptly gives Customer written notice of the Claim Against Athenic, (ii) gives Customer sole control of the defense and settlement of the Claim Against Athenic (except that Customer may not settle any Claim Against Athenic unless it unconditionally releases Athenic of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense. 

• LIMITATIONS OF LIABILITY

10.1. LIMITATIONS OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, NEITHER PARTY’S TOTAL AND AGGREGATED LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE HOSTED SERVICES PROVIDED HEREUNDER WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY UNDER THIS AGREEMENT. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES LEGALLY OWED UNDER THIS AGREEMENT.

10.2. EXCLUSION OF DAMAGES. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR OTHER SIMILAR DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, GOODWILL OR OTHER ECONOMIC ADVANTAGE), REGARDLESS OF THE CAUSE, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE HOSTED SERVICES PROVIDED HEREUNDER, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR EVEN IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

10.3. LIMITATION OF LIABILITY EXCLUSIONS. NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL LIMIT A PARTY’S LIABILITY FOR ITS (A) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, (C) DEATH OR BODILY INJURY CAUSED BY NEGLIGENCE, (D) OBLIGATIONS EXPRESSLY STATED UNDER SECTION 9 (INDEMNIFICATION OBLIGATIONS), OR (E) INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

• CONFIDENTIALITY

  • Confidential Information. For purposes hereunder, confidential information (“Confidential Information”) shall mean all information disclosed by a Party to the other Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Athenic includes the Hosted Services and Collected Data, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each Party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. As between the Parties, each Party retains all ownership rights in and to its Confidential Information. Each Party may be given access to the Confidential Information of the other Party in order to perform its obligations under this Agreement. Each Party shall hold the other Party’s Confidential Information in confidence using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall (a) use such Confidential Information solely for intended purposes under this Agreement and (b) limit access to Confidential Information of the other Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving Party containing protections not materially less protective of the Confidential Information than those herein. Within the above limitations, Athenic may use Customer’s Confidential Information for development, diagnostic, and corrective purposes. 

  • Exception. The foregoing obligations do not apply to information that (a) was rightfully in the possession of, or was known by, the receiving Party prior to its receipt from the disclosing Party; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving Party from a third-party, without an obligation to keep such information confidential; or (d) is independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party. In the event the receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, and if such order or subpoena allows, such Party will promptly notify the other Party in writing. Nothing herein shall be deemed to restrict the disclosing Party’s use of its own Confidential Information. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the Parties in connection with the evaluation of additional Athenic services.

  • Use of Aggregate Data. Customer agrees that Athenic may collect, use, and disclose quantitative data derived from the use of the Hosted Service for industry analysis, Support, benchmarking, analytics, marketing, and other business purposes. All such data collected, used, and disclosed will be in aggregate form only and will not identify Customer or its Users ("Aggregate Data"). 

• GENERAL

  • Notices. Except as provided elsewhere in this Agreement, either Party may give notice by written communication sent by next-day mail delivered by a nationally recognized delivery service: (a) if to Customer, to Customer’s address on record in Athenic’s account information or (b) if to Athenic, to 447 Sutter Street, Ste 405 #95, San Francisco, CA 94108, addressed to the attention of: Legal Dept. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing.

  • Relationship of Parties. In all matters relating to this Agreement, Athenic and Customer will act as independent contractors and nothing in this Agreement shall be construed as creating a partnership, joint venture, or employer-employee relationship. Neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or to represent the other Party as agent, partner, employee, or in any other capacity. Neither Athenic nor Customer shall become liable or bound by any representation, act, or omission whatsoever of the other Party.

  • Publicity. Customer agrees that Athenic may publish Customer’s name and logo on any of Athenic’s websites, client lists, press releases, and/or other marketing materials and a brief description of Customer’s deployment of the Hosted Service Customer agrees to collaborate with Athenic on a case study or other marketing collateral.

  • Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

  • Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control (a “Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. For the avoidance of doubt, a Force Majeure Event does not limit Customer’s obligations to pay fees duly owed to Athenic. If the effects of the Force Majeure Event continue unmitigated for a period of thirty (30) consecutive days, then either Party may terminate this Agreement and/or any Order Form, upon written notice to the other Party, and Athenic, as its sole liability, shall refund any prepaid fees covering the remainder of the Subscription Term of the affected subscription after the effective date of termination.

  • Governing Law. This Agreement will be governed by the laws of the United States of America and the State of California, without reference to its conflict of laws principles or any other principles that would result in the application of a different body of law. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All disputes arising out of this Agreement are subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, USA, and the Parties hereby submit to the personal jurisdiction and venue of these courts. 

  • Waiver. The failure to enforce any right will not be deemed a waiver of such or any other right. 

  • Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, that provision will be limited or eliminated to the minimum extent necessary with the remaining portions of this Agreement remaining in full force and effect. To the extent legally permissible, any illegal, invalid, or unenforceable provision of this Agreement shall be replaced by a valid provision which will implement the commercial purpose of the illegal, invalid, or unenforceable provision. However, if any material limitation or restriction on the use of the Hosted Service under this Agreement is found to be illegal, Customer’s right to use or receive the Hosted Service will immediately terminate and Customer shall receive a prorated refund as set forth in the "Termination" section, above.

  • Entire Agreement. This Agreement, including the applicable Order Form(s) issued thereunder, constitutes the entire agreement between the Parties regarding the subject matter therein. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) the body of this Agreement, and (3) the Documentation. Section headings used herein are provided for convenience only and shall not be used to construe meaning or intent. 

  • Modifications. The terms of this Agreement may be modified only by a written amendment signed by the Parties which references this Agreement and clearly documents that such is intended to amend the terms of this Agreement. For clarity, terms and conditions on Customer’s purchase orders or other of Customer’s ordering documentation or the text in an email which purports to modify or supplement this Agreement shall not add to or vary the terms and conditions of this Agreement. No usage of trade or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. 

  • Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

  • Federal Government End Use Provisions. Athenic provides the Hosted Service, including related software and technology, for ultimate federal government end use in accordance with the following: The Hosted Service consists of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Hosted Service shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights. 

  • Export Compliance with Laws. Customer agrees to use the Hosted Service for legitimate and lawful business purposes only. Customer will use the Hosted Service and Collected Data in compliance with all applicable laws and regulations including United States export and re-export control laws and regulations, including economic sanctions maintained by the US Treasury Department. Customer may not remove or export from the United States or allow the export or re-export of the Hosted Service or any direct product thereof in violation of any restrictions, laws, or regulations. Customer agrees to defend and indemnify, to the fullest extent permitted by law, and hold harmless Athenic from and against any fines or penalties or reasonable attorneys’ fees and costs that may arise as a result of Customer’s breach of this provision or otherwise from Customer’s misuse of the Hosted Service. This clause shall survive termination or cancellation of this Agreement.