About These Terms
These Terms of Use, together with any Order Form and any documents or policies incorporated by reference, form the agreement (the “Agreement”) between Numerant, Inc., a Delaware corporation (“Provider”), and the organization that accesses or uses the Service (“Customer”). The “Order Form” sets out the key business terms, and these “Terms of Use” set out the standard terms and conditions that govern the Service and each Order Form.
Eligibility and Acceptance
The Service is intended for business and professional use only and is not offered to consumers. Customer accepts these Terms of Use by signing an Order Form that references them, by clicking to accept them, or by accessing or using the Service. Any individual who accepts these Terms of Use on behalf of an organization represents that they are at least 18 years old and have the authority to bind that organization to these Terms of Use.
Order of Precedence
In the event of any inconsistency between an Order Form and these Terms of Use, the Order Form will control. If Customer and Provider have signed a separate written agreement covering the Service, including a negotiated master agreement, data processing agreement, or business associate agreement, that signed agreement will control over these Terms of Use to the extent of any conflict.
Changes to These Terms of Use
Provider may update these Terms of Use from time to time by posting a revised version on this page and updating the “Last updated” date above. Unless Customer and Provider agree otherwise in writing, an update will not apply to an Order Form during its then-current Subscription Period and will apply beginning with the next renewal Subscription Period.
1. Service
1.1 Access and Use. Subject to and conditioned on Customer’s and its Users’ continued compliance with this Agreement (including timely payment of all Fees), during the Subscription Period Provider grants Customer a non-exclusive, non-transferable (except in compliance with Section 12.7 (Assignment)), non-sublicensable right to (a) access and use the Service; and (b) copy and use the included Software and Documentation solely as needed to access and use the Service, in each case for Customer’s internal business purposes and in accordance with the Documentation.
1.2 Support. During the Subscription Period, Provider will provide support for the Service on a commercially reasonable, as-available basis during Provider’s standard business hours.
1.3 User Accounts. Customer is responsible and liable for all uses of the Service 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 foregoing, Customer is responsible for all actions on Users’ accounts and for all acts and omissions of its Users, and any act or omission by a User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will use reasonable efforts to make all Users aware of this Agreement’s provisions applicable to such User’s use of the Service and will cause Users to comply with such provisions. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised. Customer is responsible, at its own expense, for obtaining, maintaining, and securing all equipment, hardware, software, systems, networks, internet connectivity, and third-party services necessary for Customer and its Users to access and use the Service, and Provider is not responsible for any delay, failure, or degradation of the Service to the extent resulting from any of the foregoing or from any third-party service or network not provided by Provider.
1.4 Feedback and Usage Data. Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS”. Customer hereby assigns to Provider all right, title, and interest in and to all Feedback, including all intellectual property rights therein, and Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.
1.5 Customer Content. Provider may copy, display, modify, process, and use Customer Content only (a) as needed to provide, secure, support, and maintain the Service for Customer, including troubleshooting at Customer's request; (b) to prevent or address security, fraud, or technical issues; (c) to comply with Applicable Laws; and (d) as permitted in Section 1.6 if Customer has elected Product Improvement Use in the Order Form.
1.6 Product Improvement. If Customer has elected Product Improvement Use in the Order Form, Provider may use Usage Data and Customer Content to develop, improve, validate, and enhance Provider’s products and services, and Customer authorizes Provider to use and process its Usage Data and Customer Content for such purposes; provided, that, Provider will not use Customer Content to develop, improve, train, validate, or enhance any Provider or third-party artificial intelligence or machine learning model; provided, further, that, Provider will use commercially reasonable efforts consistent with industry standard technology to de-identify Customer Content before using Customer Content for the purposes permitted in this section. Nothing in this section will reduce or limit Provider's obligations regarding Personal Data that may be contained in Customer Content under Applicable Data Protection Laws.
1.7 AI Output. Due to the nature of artificial intelligence and machine learning, AI Output is generated by probabilistic models and may be inaccurate, incomplete, biased, or otherwise unsuitable for Customer’s purposes. Service features that include artificial intelligence or machine learning models are not human and are not a substitute for professional judgment or independent verification. Customer is solely responsible for reviewing, evaluating, and verifying any AI Output before relying on or using it, and for any decisions, conclusions, or actions it or any User makes based on AI Output.
1.8 Changes to the Service. Provider may modify, update, enhance, or discontinue features or functionality of the Service from time to time, provided that Provider will not materially reduce the general functionality of the Service during the Subscription Period.
1.9 Customer Output. As between the parties, Customer owns all right, title, and interest in and to the Customer Output, and Provider hereby assigns to Customer all of Provider’s right, title, and interest in and to the Customer Output. Customer may use, reproduce, distribute, display, and otherwise exploit the Customer Output for any lawful purpose, including sharing the Customer Output with its clients and other third parties. Notwithstanding the foregoing, the Customer Output may incorporate or be generated using Provider IP (including the Software, templates, formats, and Provider’s underlying models), and nothing in this section transfers any ownership of Provider IP to Customer. Provider and its licensors retain all right, title, and interest in and to the Provider IP, and to the extent any Provider IP is embedded in or necessary to use the Customer Output, Provider grants Customer a non-exclusive, perpetual, irrevocable, worldwide, royalty-free license to use such Provider IP solely as part of the Customer Output. Customer remains solely responsible for reviewing, evaluating, and verifying any Customer Output, including any AI Output, before relying on, using, or distributing it.
2. Restrictions & Obligations
2.1 Restrictions on Customer.
(a) Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Service (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Service; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Service; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Service; (vi) access accounts, information, data, or portions of the Service to which Customer does not have explicit authorization; (vii) use the Service to develop a competing service or Service; (viii) use the Service with any High Risk Activities or with any activity prohibited by Applicable Laws; (ix) use the Service to obtain unauthorized access to anyone else’s networks or equipment; (x) upload, submit, or otherwise make available to the Service any Customer Content to which Customer and Users do not have the proper rights; or (xi) upload, submit, or transmit to the Service any viruses, malware, or other code, files, scripts, or programs intended or designed to disrupt, damage, disable, or gain unauthorized access to any system, data, network, or the Service.
(b) Use of the Service must comply with all Documentation and Use Limitations.
2.2 Suspension. If (a) Customer has an outstanding, undisputed balance on its account for more than 30 days; (b) Customer breaches Section 2.1 (Restrictions on Customer); (c) Customer uses the Service in violation of the Agreement or in a way that materially and negatively impacts the Service or others; or (d) Provider’s provision of the Service to Customer or any User is prohibited by, or would cause Provider to violate, Applicable Laws, then Provider may temporarily suspend Customer’s access to the Service (a “Service Suspension”). Provider will use commercially reasonable efforts to resume providing access to the Service as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Service Suspension.
3. Privacy & Security
3.1 Personal Data. Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Provider. If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.
3.2 Protected Health Information. Customer will not (and will not allow anyone else to) submit any patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (“PHI”) to the Service unless the parties have executed a business associate agreement (“BAA”). If the parties have a BAA, each party will comply with its obligations in the BAA, the terms of the BAA will control each party’s rights and obligations as to PHI, and the terms of the BAA will control in the event of any conflict with this Agreement.
3.3 Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Service unless authorized by the Order Form or these Terms of Use.
3.4 Security Measures. Provider will maintain reasonable technical and physical safeguards designed to protect Customer Content that are generally consistent with industry standards.
3.5 Security Incident Notification. If Provider confirms any unauthorized access to, or acquisition, use, or disclosure of, Customer Content in Provider’s possession or control (a “Security Incident”), Provider will notify Customer without undue delay. To the extent known at the time, Provider’s notice will describe the nature of the Security Incident, the categories of Customer Content affected, and the steps Provider has taken or plans to take to investigate, contain, and remediate the Security Incident, and Provider will provide Customer with updates as additional relevant information becomes available. Provider’s notification of a Security Incident is not an acknowledgment of fault or liability. If a Security Incident involves PHI and the parties have a BAA, the notification requirements of the BAA will control.
4. Payment & Taxes
4.1 Fees. Unless the Order Form specifies a different currency, all Fees are in U.S. Dollars and are exclusive of taxes. Fees are non-refundable.
4.2 Invoicing. Provider will send invoices for usage-based Fees in arrears and for all other Fees in advance, in each case according to the Payment Process set forth in the Order Form.
4.3 Prepaid Usage; Expiration; Overage. Any prepaid usage set forth in the Order Form is available for use during the Subscription Period in which it is purchased. Any prepaid usage not used by the end of that Subscription Period expires, does not roll over to any renewal or subsequent Subscription Period, and is non-refundable. Usage beyond the prepaid amount will be billed at the rates set forth in the Order Form.
4.4 Automatic Payment. For a Payment Process with automatic payment, Provider will automatically charge the credit card, debit card, or other payment method on file for Fees according to the Payment Process and Customer authorizes all such charges. In this case, Provider will make a copy of Customer's bills or transaction history available to Customer.
4.5 Taxes. Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding, that Provider itemizes and includes in an invoice. However, Customer is not responsible for Provider’s income taxes.
4.6 Payment. Customer will pay Provider Fees and taxes in U.S. Dollars, unless the Order Form specifies a different currency, according to the Payment Process.
4.7 Payment Dispute. If Customer has a good-faith disagreement about the Fees charged or invoiced, Customer must notify Provider about the dispute before payment is due, or within 30 days of an automatic payment, and must pay all undisputed amounts on time. The parties will work together to resolve the dispute within 15 days. If no resolution is agreed, each party may pursue any remedies available under the Agreement or Applicable Laws.
4.8 Late Payments. Any undisputed amount not paid when due will accrue interest from the due date until paid at a rate of 1.5% per month, or the highest rate permitted by Applicable Laws, if lower. Customer will reimburse Provider for all reasonable costs of collection of undisputed overdue amounts, including reasonable attorneys’ fees. These remedies are in addition to Provider’s suspension and termination rights under this Agreement.
5. Term & Termination
5.1 Order Form and Agreement. The Agreement will start on the Order Date, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless one party gives notice of non-renewal to the other party before the Non-Renewal Notice Date. Provider may increase the Fees for any renewal Subscription Period by providing notice to Customer at least fifteen (15) days before the applicable Non-Renewal Notice Date, and the increased Fees will apply to that renewal Subscription Period.
5.2 Terms of Use. These Terms of Use will start on the Order Date and continue for the longer of one year or until the Order Form governed by the Terms of Use have ended.
5.3 Termination. Either party may terminate this Agreement immediately:
(a) if the other party fails to cure a material breach of this Agreement following 30 days notice;
(b) upon notice if the other party (i) materially breaches this Agreement in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.
5.4 Force Majeure. Either party may terminate this Agreement upon notice if a Force Majeure Event prevents the Service from materially operating for 30 or more consecutive days. A Force Majeure Event does not excuse Customer's obligation to pay Fees accrued prior to termination.
5.5 Effect of Termination. Termination of the Terms of Use will automatically terminate all Order Forms governed by the Terms of Use. Upon any expiration or termination:
(a) Customer will no longer have any right to use the Service.
(b) Provider will delete Customer Content within 90 days after expiration or termination.
(c) Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.
(d) Provider will submit a final bill or invoice for all outstanding Fees accrued before termination and Customer will pay the invoice according to Section 4 (Payment & Taxes).
(e) Customer will immediately discontinue all use of the Provider IP and, upon Provider’s request, will delete, destroy, or return all copies of the Provider IP in its possession or control and certify in writing to Provider that it has done so.
(f) No expiration or termination will entitle Customer to any refund, and no expiration or termination will affect Customer’s obligation to pay all Fees that became due before the expiration or termination.
5.6 Survival.
(a) The following sections will survive expiration or termination of the Agreement: Section 1.4 (Feedback and Usage Data), Section 1.6 (Product Improvement), Section 2.1 (Restrictions on Customer), Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination, Section 5.5 (Effect of Termination), Section 5.6 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of Rights), Section 12 (General Terms), and Section 13 (Definitions).
(b) Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.
6. Representations & Warranties
6.1 Mutual. Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; and (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement.
6.2 From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights, consents, and authorizations, and have provided all notices, necessary under Applicable Laws (including Applicable Data Protection Laws) to submit or make available Customer Content to the Service and to allow the use of Customer Content as described in the Agreement.
7. Disclaimer of Warranties
7.1 Provider makes no guarantees that the Service will always be safe, secure, or error-free, or that it will function without disruptions, delays, or imperfections. Except for the warranties in Section 6 (Representations & Warranties), Provider and Customer each disclaim all other warranties and conditions, whether express or implied, including the implied warranties and conditions of merchantability, fitness for a particular purpose, title, and non-infringement. These disclaimers apply to the maximum extent permitted by Applicable Laws.
7.2 Data Backup. The Service is not a data storage or backup service, and Customer is responsible for maintaining backups of Customer Content independent of the Service. To the maximum extent permitted by Applicable Laws, Provider has no obligation or liability for any loss, alteration, destruction, damage, corruption, or failure to recover any Customer Content.
8. Limitation of Liability
8.1 Liability Caps.
(a) Except as provided in Section 8.4 (Exceptions), each party’s total cumulative liability for all claims arising out of or relating to this Agreement will not exceed the total Fees paid or payable by Customer under the applicable Order Form in the twelve (12) months preceding the event giving rise to the claim.
(b) For claims arising out of or relating to a breach of Section 10 (Confidentiality) or a party’s indemnification obligations under Section 9 (Indemnification) (collectively, “Super Cap Claims”), each party’s total cumulative liability for all Super Cap Claims will not exceed two times (2x) the total Fees paid or payable by Customer under the applicable Order Form in the twelve (12) months preceding the event giving rise to the claim.
8.2 Damages Waiver. Under no circumstances will either party be liable to the other, under any legal or equitable theory (including breach of contract, tort (including negligence), strict liability, or otherwise), for any consequential, incidental, indirect, special, exemplary, or punitive damages, or for any loss of profits, revenue, business, or goodwill, in each case relating to this Agreement, regardless of whether the party was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable, and notwithstanding the failure of any agreed or other remedy of its essential purpose. This Section 8.2 does not apply to: (i) Customer’s obligation to pay Fees; (ii) amounts payable to third parties under a party’s indemnification obligations in Section 9 (Indemnification); (iii) a party’s breach of Section 10 (Confidentiality), which remains subject to the cap in Section 8.1(b); (iv) Customer’s breach of Section 2.1 (Restrictions on Customer) or infringement or misappropriation of Provider IP; (v) a party’s fraud or willful misconduct; or (vi) any liability that cannot be limited or excluded under Applicable Laws.
8.3 Applicability. The limitations and waivers contained in Sections 8.1 (Liability Caps) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.
8.4 Exceptions. The cap in Section 8.1(a) does not apply to Super Cap Claims, which are instead subject to the cap in Section 8.1(b). Section 8.1 (Liability Caps) does not apply to, and the following are not subject to any cap: (a) Customer’s obligation to pay Fees; (b) either party’s liability for fraud or willful misconduct; and (c) any liability that cannot be limited or excluded under Applicable Laws.
9. Indemnification
9.1 Protection by Provider. Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Provider Covered Claims.
9.2 Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer Covered Claims.
9.3 Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party: (a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection; (b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and (c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim. A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
9.4 Changes to Service. If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may: (a) obtain the right for Customer to continue using the Service; (b) replace or modify the affected component of the Service without materially reducing the general functionality of the Service; or (c) if neither (a) nor (b) are reasonable, terminate this Agreement.
9.5 Exclusions.
(a) Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from (i) modifications to the Service that were not authorized by Provider or that were made in compliance with Customer’s instructions; (ii) unauthorized use of the Service, including use in violation of this Agreement; (iii) use of the Service in combination with items not provided by Provider; or (iv) use of an old version of the Service where a newer release would avoid the Provider Covered Claim.
(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content by Provider in violation of this Agreement.
9.6 Exclusive Remedy. This Section 9 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim. Without limiting the foregoing, this Section 9 (Indemnification), together with the remedies in Section 9.4 (Changes to Service) and any termination rights, states Customer’s sole and exclusive remedy, and Provider’s entire liability, for any actual, threatened, or alleged claims that the Service or Documentation infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
10. Confidentiality
10.1 Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.
10.2 Exclusions. Confidential Information does not include information that Recipient can demonstrate by written or other documentary records: (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.
10.3 Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.
10.4 Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).
10.5 Trade Secrets. Notwithstanding any expiration of the Agreement or of the confidentiality obligations in this Section 10, with respect to any Confidential Information that constitutes a trade secret under Applicable Laws, Recipient’s obligations under this Section 10 will continue for as long as such Confidential Information remains subject to trade secret protection under Applicable Laws.
10.6 Notice of Unauthorized Use or Disclosure. Recipient will promptly notify Discloser upon becoming aware of any unauthorized use or disclosure of Discloser’s Confidential Information and will reasonably cooperate with Discloser to prevent further unauthorized use or disclosure.
11. Reservation of Rights
Except for the limited license to copy and use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Service, whether developed before or after the Order Date. Customer has no right, license, or authorization with respect to the Service or any Provider IP except as expressly set forth in this Agreement, and all other rights in and to the Service and Provider IP are expressly reserved by Provider. No rights are granted to Customer by implication, estoppel, or otherwise. Except for the limited rights in Section 1.5 (Customer Content) and 1.6 (Product Improvement), Customer retains all right, title, and interest in and to the Customer Content and the Customer Output.
12. General Terms
12.1 Entire Agreement. Subject to the section above titled “Order of Precedence,” this Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer's use of the Service unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say.
12.2 Modifications, Severability, and Waiver. Except for updates to these Terms of Use made in accordance with the section above titled “Changes to These Terms of Use,” any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.
12.3 Governing Law and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Tennessee 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 Tennessee. Any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee, in each case located in the City of Nashville and County of Davidson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
12.4 Waiver of Jury Trial. Each party irrevocably and unconditionally waives, to the fullest extent permitted by Applicable Laws, any right it may have to a trial by jury in respect of any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated by this Agreement.
12.5 Injunctive Relief. Despite Section 12.3 (Governing Law and Venue), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.
12.6 Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy, seeking or exercising a remedy does not limit the other rights or remedies available to a party.
12.7 Assignment. Customer may not assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement, in whole or in part, whether voluntarily, by operation of law, or otherwise (including in connection with any merger, change of control, reorganization, or sale of all or substantially all of its equity, business, or assets), without the prior written consent of Provider. Any attempted assignment, delegation, or transfer in violation of this section is void. No permitted assignment will relieve Customer of any of its obligations under this Agreement. Provider may freely assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the consent of Customer. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
12.8 Logo Rights. Provider may identify Customer and use Customer's name and logo in marketing to identify Customer as a user of Provider's products and services.
12.9 Notices. Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.
12.10 Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.
12.11 No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.
12.12 Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees. The affected party will promptly notify the other party of the Force Majeure Event, including its nature and expected duration, and will use commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as reasonably practicable.
12.13 Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Service or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate this Agreement immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.
12.14 Government Rights. The Service and Software are deemed “commercial items” or “commercial computer software” according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is “commercial computer software documentation” according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Service by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.
12.15 Anti-Bribery. Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.
12.16 Titles and Interpretation. Section titles are for convenience and reference only. All uses of “including” and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.
12.17 Signature. This Agreement may be signed in counterparts, including by electronic copies or acceptance mechanism. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.
13. Definitions
13.1 “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.
13.2 “Agreement” means the agreement between Provider and Customer, consisting of these Terms of Use and each Order Form governed by them, together with any documents or policies incorporated by reference.
13.3 “AI Output” means information, data, materials, text, images, code, works, expressions, or other content generated by the artificial intelligence or machine learning features of the Service in response to input from, or otherwise in connection with use of such features by or on behalf of, Customer or any User.
13.4 “Applicable Data Protection Laws” means the Applicable Laws that govern how the Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.
13.5 “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
13.6 “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) disclosed by or on behalf of a Discloser, including before the Order Date, to a Recipient in connection with this Agreement that the Discloser considers confidential or proprietary, including information consisting of or relating to the Discloser’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, in each case whether or not marked, designated, or otherwise identified as “confidential”, “proprietary”, or the like. Without limiting the foregoing, all Provider IP is Confidential Information of Provider, and the financial terms and existence of this Agreement are the Confidential Information of Provider. Customer’s Confidential Information includes non-public Customer Content that is not de-identified.
13.7 “Covered Claim” means either a Provider Covered Claim or Customer Covered Claim.
13.8 “Customer Content” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a User through the Service, but excludes Feedback and Usage Data.
13.9 “Customer Covered Claim” means any claim, suit, action, or proceeding made or brought by a third party that is not an Affiliate of Customer that arises out of or results from, or is alleged to arise out of or result from: (a) Customer Content, including Provider’s processing of Customer Content in accordance with this Agreement; (b) any AI Output, or any use, distribution, or publication of AI Output by or on behalf of Customer or any User; (c) any other materials or information provided by or on behalf of Customer or any User; (d) any allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (e) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any User, or any third party acting on behalf of Customer or any User.
13.10 “Customer Output” means the reports, analyses, results, data, and other materials generated by the Service for Customer or any User, including any AI Output.
13.11 “Discloser” means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.
13.12 “Documentation” means the usage manuals and instructional materials for the Service or Software that are made available by Provider.
13.13 “DPA” means a data processing agreement entered into between Provider and Customer governing the processing of Personal Data.
13.14 “Embargoed Country” means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.
13.15 “Feedback” means suggestions, feedback, or comments about the Service or related offerings.
13.16 "Fees" means the applicable amounts described in an Order Form.
13.17 “Force Majeure Event” means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.
13.18 “GDPR” means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.
13.19 “High Risk Activity” means any situation where the use or failure of the Service could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.
13.20 “Indemnifying Party” means a party to this Agreement when the party is providing protection for a particular Covered Claim.
13.21 “Non-Renewal Notice Date” means the non-renewal notice date set out in the Order Form.
13.22 “Notice Address” means, for Customer, the notice address set out in the Order Form, and for Provider, the notice address set out in the Order Form, in each case as updated by a party by notice given in accordance with Section 12.9 (Notices).
13.23 "OFAC" means the United States Department of Treasury's Office of Foreign Assets Control.
13.24 “Order Date” means the date access to the Service starts, as set out in the Order Form.
13.25 “Order Form” means the Order Form that includes the key business details that are not defined in the Terms of Use. An Order Form includes the policies and documents referenced in or attached to the Order Form. An Order Form may include details about the level of access and use granted to the Service, length of Subscription Period, or other details about the Service.
13.26 “Personal Data” will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.
13.27 “Prohibited Data” means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (unless the parties have signed a BAA); (b) special categories of data as defined in the GDPR; and (c) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.
13.28 “Protected Party” means a party to this Agreement when the party is receiving the benefit of protection for a particular Covered Claim.
13.29 “Provider Covered Claim” means any claim, suit, action, or proceeding made or brought by a third party that is not an Affiliate of Provider alleging that Customer’s use of the Service (excluding Customer Content, AI Output, and any third-party materials) in accordance with this Agreement and the Documentation infringes such third party’s United States patent, copyright, or trade secret rights. Provider Covered Claim excludes any claim to the extent it arises from: (a) Customer Content, AI Output, or any materials or services not provided by Provider; (b) use of the Service in combination with any hardware, system, software, network, or other materials or services not provided by Provider or specified by Provider in writing; (c) modification of the Service other than by or on behalf of Provider; (d) Customer’s failure to implement, within a reasonable period under the circumstances, any modifications, upgrades, replacements, or enhancements made available by Provider with reasonable written notice; or (e) any act, omission, or other matter that gives rise to a Customer Covered Claim.
13.30 “Provider IP” means the Service, the Software, the Documentation, and any and all intellectual property provided to Customer or any User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Usage Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Service, but does not include Customer Content or Customer Output.
13.31 “Recipient” means a party to this Agreement when the party receives Confidential Information from the other party.
13.32 “Service” means Provider’s AI-assisted software platform for financial intelligence, as further described in the Order Form and the Documentation.
13.33 “Software” means the client-side software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Service.
13.34 “Subscription Period” means the length of Service access set out in the Order Form, together with any renewal Subscription Periods.
13.35 “Terms of Use” means these Terms of Use between Provider and Customer, as published by Provider and updated from time to time in accordance with these Terms of Use, together with any policies and documents referenced in or attached to these Terms of Use.
13.36 “Usage Data” means data and information about the provision, use, and performance of the Service and related offerings based on Customer’s or User’s use of the Service.
13.37 “Use Limitations” means any usage limitations or restrictions for the Service set out in the Order Form or the Documentation.
13.38 “User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement and (b) for whom access to the Service has been purchased under this Agreement.
Contact
Questions about these Terms of Use may be sent to Numerant, Inc. at hello@numerant.ai.