These Standard Terms (“Standard Terms”), by and between you (“Customer”) and Arges Incorporated dba Condoit (“Condoit”), are effective as of the date Customer purchased a subscription to the Services or began using the Services, whichever occurs earlier (“Effective Date”). Condoit and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
1. Access and Use.
(a) Order Form. Pursuant to the terms of these Standard Terms, Condoit will provide Customer with access to the Condoit platform and services specified by the terms of any effective Order Form. The Order Form is incorporated into these Standard Terms by reference and will include a description of the services purchased (the “Services”), the subscription period (“Term”), fees payable (“Fees”), and other similar terms. To the extent that any conflict arises between these Standard Terms and an Order Form, these Standard Terms shall control unless specifically stated otherwise in the Order Form.
(b) Provision of Access. Subject to and conditioned on Customer’s payment of applicable fees and compliance with all other terms and conditions of these Standard Terms and the Order Form (collectively, the “Agreement”), Condoit hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 10(g)) right to access and use the Services during the Term solely for use by Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder (“Authorized Users”), in accordance with the terms and conditions herein. Such use is limited to Customer’s internal business use and Customer may not allow any third party to access to the Services under Customer’s credentials.
(c) Documentation License. Subject to the terms and conditions contained in this Agreement, Condoit hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 10(g)) license to use Condoit’s user manuals, handbooks, and guides relating to the Services provided by Condoit to Customer either electronically or in hard copy form/end user documentation relating to the Services (the “Documentation”) during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
(d) Reservation of Rights. Condoit reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Condoit IP.
(e) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Condoit may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if Condoit reasonably determines that (i) there is a threat or attack on any of the Condoit IP; (ii) Customer’s or any Authorized End User’s use of the Condoit IP disrupts or poses a security risk to the Condoit IP or to any other customer or vendor of Condoit; (iii) Customer, or any Authorized End User, is using the Condoit IP for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (iv) Condoit’s provision of the Services to Customer or any Authorized End User is prohibited by applicable law (each, a “Service Suspension”). Condoit shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Condoit shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Condoit will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(g) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Condoit may monitor Customer’s use of the Services and collect and compile data and information related to Customer’s use of the Services that is used by Condoit in an aggregate and anonymized manner (“Aggregated Data”). As between Condoit and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Condoit. Customer acknowledges that Condoit may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Condoit may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
2. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Condoit may from time to time make third-party products provided with or incorporated into the Services (“Third-Party Products”) available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
3. Fees and Payment.
(a) Fees. Customer shall pay Condoit the Fees set forth in the Order Form. Customer shall make all payments hereunder in US dollars on or before the due date or as otherwise provided in the Order Form. If Customer fails to make any payment when due, without limiting Condoit’s other rights and remedies: (i) Condoit may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Condoit for all costs incurred by Condoit in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 10 days or more, Condoit may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
(b) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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 Customer hereunder, other than any taxes imposed on Condoit’s income.
4. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is:
(a) in the public domain;
(b) known to the receiving Party at the time of disclosure;
(c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or
(d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5. Intellectual Property Ownership; Feedback.
(a) Condoit IP. Customer acknowledges that, as between Customer and Condoit, Condoit owns all right, title, and interest, and all intellectual property rights, in and to the Condoit machine-learning software platform, including all software code, algorithms, analytic modules, know-how, and processes related thereto, the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the Agreement (“Condoit IP”) and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
(b) Customer Data. Condoit acknowledges that, as between Condoit and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services, excluding Aggregated Data (“Customer Data”). Customer hereby grants to Condoit a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Condoit to provide the Services to Customer. CUSTOMER IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, AND RELIABILITY OF ALL CUSTOMER DATA AND THE OUTPUT RESULTS RECEIVED BY CUSTOMER BASED ON SUCH CUSTOMER DATA.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Condoit by mail, email, telephone, or otherwise, suggesting or recommending changes to the Condoit IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Condoit is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Condoit on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Condoit is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Condoit is not required to use any Feedback.
6. Warranty. THE CONDOIT IP IS PROVIDED “AS IS” AND CONDOIT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CONDOIT MAKES NO WARRANTY OF ANY KIND THAT THE CONDOIT IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S 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.
(a) Condoit Indemnification. Condoit shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies Condoit in writing of the claim, cooperates with Condoit, and allows Condoit sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Condoit, at Condoit’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use the Services. If Condoit determines that neither alternative is reasonably available, Condoit may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 7(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Condoit or authorized by Condoit in writing; (B) modifications to the Services not made by Condoit; (C) Customer Data; or (D) Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Condoit’s option, defend Condoit from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Condoit or authorized by Condoit in writing; or (iv) modifications to the Services not made by Condoit, provided that Customer may not settle any Third-Party Claim against Condoit unless Condoit consents to such settlement, and further provided that Condoit will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
8. Legal Disclaimer; Limitations of Liability. ELECTRICAL WORK IS INHERENTLY DANGEROUS. USING TOOLS CAN CAUSE SERIOUS INJURY OR DEATH IF NOT USED PROPERLY. CUSTOMER SHOULD ALWAYS READ AND FOLLOW INSTRUCTION MANUALS AND SAFETY WARNINGS PERTAINING TO ELECTRICAL PROJECTS, TOOLS AND EQUIPMENT. THE ADVICE, GUIDANCE OR OTHER INFORMATION PROVIDED BY THE CONDOIT SERVICES CANNOT COMPLETELY ANTICIPATE OR PREDICT EVERY SITUATION. CUSTOMER EXPRESSLY AGREES TO HOLD CONDOIT HARMLESS FOR ANY PROPERTY DAMAGE, PERSONAL INJURY AND/OR DEATH, OR ANY OTHER LOSS OR DAMAGE THAT MIGHT RESULT FROM CUSTOMER’S USE OF THE SERVICES. IN NO EVENT WILL CONDOIT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CONDOIT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CONDOIT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CONDOIT UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9. Term and Termination.
(a) Term. The Term of the Agreement and any renewal terms are as provided in the Order Form.
(b) Termination. In addition to any other express termination right set forth in this Agreement: (i) Condoit may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Condoit’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 1(e) or Section 4; (ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Condoit IP and, without limiting Customer’s obligations under Section 4, Customer shall delete, destroy, or return all copies of the Condoit IP and certify in writing to the Condoit that the Condoit IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. In all such cases, the Terms shall terminate, including, without limitation, Customer’s access to the Services, except those Sections you would expect to survive termination.
(a) Entire Agreement. These Standard Terms, together with the Order Form and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Standard Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Condoit be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Condoit’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Alabama without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Alabama. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Alabama in each case located in Jefferson County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Condoit. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 1(e), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party 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.
(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.