THIS CLOUD SERVICES AGREEMENT (“AGREEMENT”) IS ENTERED INTO BY AND BETWEEN NEURELO, INC. (“VENDOR”) AND CUSTOMER, AND GOVERNS CUSTOMER’S USE OF AND ACCESS TO THE SERVICE. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE TERM “CUSTOMER” WILL REFER TO THE INDIVIDUAL ACCEPTING THIS AGREEMENT, PROVIDED THAT IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, AND THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ACCESS THE SERVICES.
1. Services
1.1 Subscription Type. Customer’s subscription to the Services may be subject to certain feature or usage limitations, as further described on Vendor’s pricing page, available at https://www.neurelo.com/pricing, as may be updated from time to time. By default, Customer’s subscription will be a free subscription. Customer may choose to purchase a “Paid Subscription” by entering into a written order form with Vendor (each an “Order”).
1.2 Permitted Use. During the Term, subject to Customer’s compliance with the terms of this Agreement: (a) Customer may access and use the Services only for its internal business purposes and (b) Vendor hereby grants Customer a limited, non-sublicensable, non-transferable, license to use the Software to develop applications, and distribute the Software in object code form only as a part of the Customer’s applications solely to enable communication with the Services, in each case in accordance with the Documentation, this Agreement, and any limitations set forth in an applicable Order.
1.3 Users. Only Users, using the API keys, access credentials or other mechanisms designated by Vendor (“Log-in Credentials”), may access and use the Services. Each User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their Log-in Credentials (excluding misuse of the Log-in Credentials caused by Vendor’s breach of this Agreement). Customer will promptly notify Vendor if it becomes aware of any compromise of any Log-in Credentials. Vendor may Process Log-in Credentials in connection with Vendor’s provision of the Services or for Vendor’s internal business purposes.
1.4 Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Service, except to the extent expressly permitted by Law (and then only with prior notice to Vendor); (e) modify or create derivative works of a Service or copy any element of a Service; (f) remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Service; or (k) access or use a Service in a manner that violates any Law or privacy rights. Additionally, Customer must not use a Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Vendor is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Vendor has no liability for Prohibited Data or use of a Service for High Risk Activities.
2. Support. During the Term, Vendor will use commercially reasonable efforts to provide support for the Services and Software during its standard business hours in accordance with Vendor’s standard support practices (“Support”). Additional Support may be available with certain Paid Subscriptions or may be purchased separately from Vendor.
3. Upgrades. Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Vendor regarding future functionality or features of the Services. From time to time, Vendor, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Vendor to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in an Order.
4. Data
4.1 Use of Customer Data. Customer grants Vendor the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, modify, and create derivative works from Customer Data only as necessary to: (a) provide any Services and Support; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.
4.2 Data Protection Laws. Customer will not use the Service with any Customer Data that is subject to Data Protection Laws without first entering into a data processing addendum or other written agreement with Vender concerning the Processing of such Customer Data in accordance with such Data Protection Laws.
4.3 Security. Company will implement and maintain commercially reasonable policies and procedures de-signed to protect the Customer Data against unauthorized access, use or disclosure. The foregoing constitutes Company’s sole and exclusive obligation with respect to protection of Customer Data from unauthorized access, use, loss or disclosure.
4.4 Usage Data; Aggregated Data. Vendor may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data.
5. Customer Obligations. Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws and the AUP when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Vendor to Process Customer Data set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data.
6. Suspension of Service. Vendor may immediately suspend Customer’s access to any or all of the Services if: (a) Customer breaches Section 1.4 (Restrictions) or Section 5 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Vendor suspend a Service or otherwise may impose additional liability on the part of Vendor; or (d) Customer’s actions risk harm to any of Vendor’s other customers or the security, availability, or integrity of a Service. Where practicable, Vendor will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Vendor will restore Customer’s access to the Service(s). Additionally, Customer’s use of certain features of the Service may be suspended if Customer exceeds the applicable usage limitations.
7. Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Vendor does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Vendor to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.
8. Commercial Terms.
8.1 Paid Subscription Term. Except as set forth in the applicable Order, the initial term of a Paid Subscription will be for full calendar month, and will automatically renew on a monthly basis unless either party gives the other party notice of non-renewal at least 5 days before the then-current Paid Subscription Term ends.
8.2 Fees and Taxes. Except as otherwise agreed in the applicable Order, Fees for the Services are described on the Pricing Page (“Fees”). All Fees will be paid in US dollars unless otherwise agreed by the parties. Fees for Paid Subscriptions are invoiced as described in the Order. All other Fees are invoiced monthly in arrears. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. If Customer elects to pay by credit card, Customer hereby authorizes Vendor and its third-party payment processors to charge Fees to Customer’s credit card account when due. Vendor may update Fees on a going forward basis by posting updated fees on the Pricing Page at least 15 days prior to being effective. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable except as may be set out in Section 9.2 (Warranty Remedy), or Section 13.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Vendor’s income tax (“Taxes”). Fees are exclusive of all Taxes.
9. Warranties and Disclaimers
9.1 Limited Warranty. While Customer has a Paid Subscription, Vendor warrants to Customer that the Services included in the Paid Subscription will perform materially as described in its Documentation (“Limited Warranty”).
9.2 Warranty Remedy. If Vendor breaches the Limited Warranty and Customer makes a reasonably detailed warranty claim in the manner required by Vendor within 30 days of discovering a breach of the Limited Warranty for the applicable Services, then Vendor will use reasonable efforts to correct the non-conformity. If Vendor cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the Paid Subscription as it relates to the non-conforming Service. Vendor will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Paid Subscription. This Section sets forth Customer’s exclusive remedy and Vendor’s entire liability for breach of the Limited Warranty. These warranties do not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) Trials and Betas or other free or evaluation use.
9.3 Disclaimers. Except as expressly provided in Section 9.1 (Limited Warranty), the Services, Support, and all other Vendor services are provided “AS IS”. Vendor, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Vendor does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that Vendor will review Customer Data for accuracy, or that it will maintain Customer Data without loss. Vendor is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Vendor’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.
10. Term and Termination
10.1 Term. The term of this Agreement (the “Term”) starts on the date this Agreement is accepted by Customer and continues until terminated in accordance with this Agreement.
10.2 Termination. Customer may terminate this Agreement upon notice to Vendor. Vendor may terminate this Agreement if there are no Paid Subscriptions outstanding upon notice to Customer. Either party may terminate this Agreement (including any or all Orders) if the other party: (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 10 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 30 days.
10.3 Effect of Termination. Upon expiration or termination of a Paid Subscription, Customer’s access to and Vendor’s obligation to provide the portions of the Services covered by the Paid Subscription will cease. Upon expiration or termination of this Agreement, Customer’s access to and Vendor’s obligations to provide the Services and Support will cease, Customer’s license to the Software will terminate. Customer Data and other Confidential Information, as defined in Section 14, may be retained in Recipient’s standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions.
10.4 Survival. These Sections survive expiration or termination of this Agreement: 1.4 (Restrictions), 4.4 (Usage Data; Aggregated Data), 5 (Customer Obligations), 8.2 (Fees and Taxes), 9.3 (Disclaimers), 10.3 (Effect of Termination), 10.4 (Survival), 11 (Ownership), 12 (Limitations of Liability), 13 (Indemnification), 14 (Confidentiality), 15 (Required Disclosures), 18 (General Terms), and Exhibit A (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.
11. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data provided to Vendor. Except for Customer’s use rights in this Agreement, Vendor and its licensors retain all intellectual property rights and other rights in the Services, Software, Documentation, Usage Data, and Vendor technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Vendor. If Customer provides Vendor with feedback or suggestions regarding the Services or other Vendor offerings, Vendor may use the feedback or suggestions without restriction or obligation.
12. Limitations of Liability.
12.1 Consequential Damages Waiver. Except for Excluded Claims (as defined below) neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.
12.2 Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’ and licensor’s) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to Vendor pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement.
12.3 Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 1.4 (Restrictions) or 5 (Customer Obligations); (b) either party’s breach of Section 14 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party’s obligations in Section 13 (Indemnification).
12.4 Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 12.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.
13. Indemnification.
13.1 Indemnification by Vendor. Vendor will defend Customer from and against any third-party claim to the extent alleging that a Service, when used by Customer as permitted under the applicable Order infringes or misappropriates a third-party’s intellectual property rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Vendor resulting from the claim.
13.2 Indemnification by Customer. Customer will defend Vendor from and against any third-party claim to the extent resulting from Customer Data, or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Vendor against any damages and costs awarded against Vendor (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.
13.3 Procedures. The indemnifying party’s obligations in this Section 13 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Services, when Vendor is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
13.4 Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Vendor determines necessary to avoid material liability, Vendor may at its option: (a) procure rights for Customer’s continued use of the applicable Service; (b) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the affected Paid Subscription Terms.
13.5 Exceptions. Vendor’s obligations in this Section 13 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Vendor (including Third-Party Platforms); (b) to infringement resulting from Software other than the most recent release; (c) to infringement or misappropriation resulting from or based on AI Features or their outputs, (d) to unauthorized use of Services; (e) if Customer settles or makes any admissions about a claim without Vendor’s prior consent; or (f) to Trials and Betas (as defined in Section 16) or other free or evaluation use.
13.6 Exclusive Remedy. This Section 13 sets out Customer’s exclusive remedy and Vendor’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.
14. Confidentiality.
14.1 Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Vendor’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services.
14.2 Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Vendor is the Recipient, Vendor may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Vendor, the subcontractors referenced in Section 18.9), provided it remains responsible for their compliance with this Section 14 and they are bound to confidentiality obligations no less protective than this Section 14. Nothing in this Section 14 will limit rights granted under Section 4.
14.3 Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.
14.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 14.
15 Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.
16. Trials and Betas. If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Vendor (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Vendor may never release, and their features and performance information are Vendor’s Confidential Information. Notwithstanding anything else in this Agreement, Vendor provides no warranty, indemnity, SLA, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.
17. Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Vendor may include Customer and its trademarks in Vendor’s customer lists and promotional materials but will cease further use at Customer’s written request.
18. General Terms.
18.1 Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
18.2 Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of [California] and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.
18.3 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
18.4 Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to (a) if to Vendor, at 883 N Shoreline Blvd Ste B-120, Mountain View, CA 94043 or support@neurelo.com, or (b) if to Customer, to the address and email address Vendor then-has on file for Customer. Notices and consents under this Agreement will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Vendor may also send operational notices to Customer by email or through the Services.
18.5 Entire Agreement. This Agreement (which includes all Orders and referenced policies) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
18.6 Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Vendor. Nonetheless, with notice to Customer, Vendor may modify the policies to reflect new features or changing practices, but the modifications will not materially decrease Vendor’s overall obligations during a Paid Subscription Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Vendor; any of these Customer documents are for administrative purposes only and have no legal effect.
18.7 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.
18.8 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (“Force Majeure Events”).
18.9 Subcontractors. Vendor may use subcontractors and permit them to exercise Vendor’s rights, but Vendor remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.
18.10 Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.
18.11 Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.
18.12 Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or otherwise disclosed by Vendor in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
18.13 DMCA. Customer acknowledges that it has reviewed Neurelo’s Copyright Policy, available at www.neurelo.com/copyright.
18.14 Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.
18.15 Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of an Order, the body of this Agreement and the terms of any exhibits and policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms of the Order (but only with respect to the subject matter of the Order), (b) the terms contained in the body of this Agreement; (c) the terms of the exhibits and policies to this Agreement; and (d) the Documentation.
Exhibit A - Definitions
1.1 “AI Features” means a feature of the Service that is powered by or uses generative artificial intelligence or other machine learning functionality.
1.2 “Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of 50% or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.
1.3 “Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual, and meta-data from Connected Data Sources.
1.4 “Connected Data Source” means a database or other data source that Customer connects to or queries through the Service (including by providing access credentials for such database to Vendor).
1.5 “Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Vendor to provide the Services to Customer.
1.6 “Data Protection Laws” means: (a) the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time; (b) the General Data Protection Regulation (EU) 2016/679 (“GDPR”), and the e-Privacy Directive 2002/58/EC (as amended by Directive 2009/136/EC), their national implementations in the European Economic Area (“EEA”), and all other data protection laws of the EEA including laws of the European Union (“EU”), the data protection laws of the United Kingdom (“UK”) and Switzerland, each as applicable, and as may be amended or replaced from time to time; and (c) any similar Laws.
1.7 “Documentation” means the then-current version of Vendor’s usage guidelines and standard technical documentation for the Services that Vendor makes generally available to its customers that it provides the applicable Services to, the current version of which are at [link].
1.8 “High Risk Activities” means activities where use or failure of a Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.
1.9 “Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data, including Customer Personal Data and Customer Personal Information.
1.10 “Order” means an order for a Paid Subscription that is executed by the parties and references this Agreement.
1.11 “Paid Subscription Term” means the initial period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order, or if not so identified, one month.
1.12 “Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.
1.13 “Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.
1.14 “Service” or “Services” means the then-current version of Vendor’s proprietary database abstraction cloud service. Each of the Services includes the Software and Documentation for the Service, but excludes Support.
1.15 “Software” means any software, scripts, or other code required by Vendor to operate a Service.
1.16 “Third-Party Platform” means any Connected Data Source, third-party platform, add-on, service, or product not provided by Vendor that Customer elects to integrate or enable for use with any Service.
1.17 “Upgrades” means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Services that Vendor makes available to its customers for an additional fee.
1.18 “Usage Data” means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any Customer Data.
1.19 “User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Services on Customer’s behalf.
