This Agreement governs Customer’s use and Aimably’s delivery of the services or solutions owned by Aimably, Inc. or its Affiliates (collectively “Aimably”) and further detailed in the Order Form and its exhibits (collectively the "Beta Service"). Customer agrees that Customer’s engagement of the Beta Service is not contingent on the delivery of any future services, functionality or features, or dependent on any oral or written public comments made by Aimably regarding future services, functionality or features.
1. Grant of Rights and Usage.
1.1 Subject to the terms of the Agreement, Aimably hereby grants to Customer a non-sublicensable, non-transferable (except as provided in the Agreement), non-exclusive right to access and use the Beta Service, in accordance with the Order Form, and solely for Customer’s and its Affiliates’ testing and evaluation purposes.
1.2 Customer may permit Authorized Users to use the Beta Service. Where applicable, usage is limited to the Usage Metrics and volumes stated in the Order Form(s). Customer is responsible for all activity by its Authorized Users and will not permit User IDs to be used by more than one [1] individual. Aimably reserves the right to suspend or terminate any Authorized User which it reasonably determines may have been used for an unauthorized purpose, subject to prompt notice by Aimably of such suspension or termination.
1.3 Customer shall:
(i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Beta Service and will promptly notify Aimably of any actual or suspected unauthorized use;
(ii) report to Aimably promptly and use reasonable efforts to stop any unauthorized copying or distribution of Content or Deliverables;
(ii) comply with all applicable laws, rules and regulations when using the Beta Service;
(iii) designate, in writing, an employee or representative who will serve as the Customer’s single contact for the Beta Service (the “Contact”), and who will be responsible for maintaining communication with Aimably for the duration of the Engagement Term. If Contact no longer is able to perform their duties, Customer will promptly notify Aimably of a change of Contact in writing.
(iv) participate in the use of the Beta Service and cooperate with Aimably in evaluating the Beta Service; and
(v) provide Aimably with feedback as reasonably requested including, but not limited to, ideas, modifications, suggestions, improvements, opinions, and the like concerning the experience, features, and effectiveness of the Beta Service (collectively the “Supportive Information”).
1.4 Customer hereby grants Aimably a non-exclusive, non-transferable (other than as set forth in the Agreement), worldwide right to use the Customer Data as follows:
(i) as necessary for the limited purpose of performing the Beta Service,
(ii) as permitted or required by applicable law, and
(iii) to create anonymized data or to combine with other data sources to create aggregate data (collectively “Analyses”) provided such information does not identify Customer or a specific individual as the source of such data.
2. Acknowledgment of Beta Service Limitations.
Customer acknowledges that:
(a) the Beta Service has not been made commercially available by Aimably;
(b) the Beta Service may not operate properly, be in final form or fully functional;
(c) the Beta Service may contain errors, design flaws, or other problems;
(d) it may not be possible to make the Beta Service fully functional;
(e) the information obtained using the Beta Service may not be accurate and may not accurately correspond to information extracted from any database or other source;
(f) use of the Beta Service may result in unexpected results, corruption or loss of data, or other unpredictable damage or loss;
(g) Aimably has no obligation to release a commercial version of the Beta Service or otherwise introduce the Beta Service; and
(h) Aimably has the right unilaterally to abandon development of the Beta Service, at any time and without any obligation or liability to Customer.
Customer acknowledges and agrees that it should not rely on the Beta Service for any reason. Customer assumes all risk arising from use of the Beta Service as further stated in this Agreement.
3. Restrictions
Customer will not without prior written consent of Aimably:
(a) access or copy any Content, Deliverables or data or information of other Beta Service users;
(b) harvest, collect, gather or assemble information or data regarding other users without their written consent;
(c) disassemble, decompile, reverse-engineer, copy, translate or make derivative works of the Beta Service, Deliverables, Documentation, or Content;
(d) transmit or upload any content or data that is unlawful, infringes any intellectual property rights, or contains any Malicious Code;
(e) knowingly interfere with or disrupt the integrity or performance of the Beta Service, the Deliverables or the Content;
(f) harass or interfere with another customer's use and enjoyment of the Beta Service;
(g) circumvent or endanger the operation or security of the Beta Service;
(h) use the Beta Service for the benefit of a third party, for timesharing or to operate a service bureau;
(i) create Internet "links" to or from the Beta Service;
(j) remove, cover, alter or obfuscate any logos, trademarks, internet links, confidentiality or proprietary rights notices, or any other notices or markings placed on or displayed by Beta Service, the Content, the Deliverables or the Documentation;
(k) access the Beta Service for purposes of: monitoring its availability, performing any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan, or any benchmarking or competitive services; or
(l) otherwise use the Beta Service in any manner that exceeds the scope of use permitted under this Agreement.
4. Ownership
4.1 Aimably. Aimably, its Affiliates, or its suppliers or licensors retain all right, title and interest, including all intellectual property rights, in and to the following:
(i) the Beta Service, the Content , and all other software, materials, formats, interfaces, information, reports, work products, content and proprietary information and technology used by Aimably or provided to Customer in connection with the Beta Service, but not explicitly declared as Deliverables in the Order Form,
(ii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Aimably or its Affiliates during its performance under the Agreement,
(iii) any and all Supportive Information provided by Customer in connection with the Beta Service and any present or future Aimably product or service,
(iv) any and all Analyses, and
(v) the logos, trademarks, and product and service names associated with the Beta Service, Aimably or otherwise contained on any Aimably website, (all of the foregoing being referred to herein collectively as, the "Aimably Property").
Except as otherwise expressly authorized herein or by Aimably in writing, the non-exclusive use rights set forth in the Agreement are the entirety of Customer’s rights in connection with the Aimably Property.
4.2 Customer.
(a) Customer owns and retains all right, title, and interest, including all intellectual property rights, in and to the Customer Data, Customer’s Confidential Information, software or materials, each that are created by Customer independently and without reference to the Aimably Property. Except as otherwise expressly authorized herein or by Customer in writing, the non-exclusive use rights set forth in the Agreement are the entirety of Aimably’s rights in connection with the Customer Data; and
(b) Aimably agrees to assign, and hereby assigns, right, title, and interest in and to Deliverables to Customer upon final delivery, with the exception of all intellectual property rights.
5. Aimably Responsibilities
5.1 Aimably will provide access to, and support for, the Beta Service as described in the Agreement, including the Order Form and its exhibits. Notwithstanding anything in the Agreement to the contrary, Aimably may from time to time effect reasonable modification to the Beta Service, the Deliverables, and/or the Content applicable for each service ordered hereunder, without Customer’s prior consent. Any such updates are in the sole discretion of Aimably.
5.2 Aimably has implemented and will maintain reasonable and appropriate security measures based on applicable industry best practices. As a data processor, Aimably will secure personal data processed in the Beta Service in accordance with applicable data protection laws. The Aimably Data Processing Addendum (“DPA”) is available on this website and is incorporated in the Agreement by reference to the extent required by applicable law, including General Data Protection Regulation (“GDPR”) and California Consumer Privacy Act (“CCPA”). Aimably uses subprocessors for various functions and provision of the Beta Service, which are available upon request.
6. Customer and Personal Data
6.1 Customer is solely responsible for providing and ensuring the accuracy of all Customer Data required for the proper operation of the Beta Service. Customer will collect and maintain all personal data contained in the Customer Data in compliance with applicable data privacy and protection laws.
6.2 During the Engagement Term, Customer can access its Customer Data at any time through the Beta Service. At the end of the Agreement, Aimably will delete the Customer Data remaining on servers hosting the Beta Service at the written request of the Customer, unless applicable law requires retention. Retained Customer Data is subject to the confidentiality provisions of the Agreement.
7. Fees and Payment
7.1 Except as otherwise expressly set forth in the applicable Order Form, Customer will pay each accurate invoice within thirty (30) days after the applicable invoice date. All fees and other charges shall be paid to Aimably in United States dollars or such currency specified in the Order Form. If travel is requested by Customer or required for Beta Service provided on-site at a Customer location, Customer will pay all reasonable and pre-approved expenses associated with such travel, subject to Aimably’s then-current travel policy. If Customer specifies in an Order Form that it is issuing a purchase order for such Order Form, then Aimably will reference the applicable Customer purchase order number on its invoices so long as Customer provides the purchase order number at least five (5) business days prior to the date of the applicable invoice. Except as otherwise specifically provided in this Agreement, all payment obligations are non-cancelable and all amounts paid are nonrefundable.
7.2 Fees due under the Agreement do not include taxes, levies, or duties (“Taxes”) imposed by taxing authorities, all of which will be for Customer’s account. Customer is responsible for all Taxes, other than Aimably’s income or payroll taxes. Customer must provide to Aimably any direct pay permits or valid tax-exempt certificates prior to signing any Order Form. If Aimably is required to pay Taxes, Customer will reimburse Aimably for those amounts and indemnify Aimably for any Taxes and related costs paid or payable by Aimably attributable to those Taxes.
7.3 If, at any time, Customer is delinquent in the payment of any fees due hereunder, Aimably may notify Customer in writing of such breach and, in such case, Customer will have thirty (30) days from such written notice to cure the breach. If Customer fails to cure such breach within such 30-day period, then Aimably may suspend the Beta Service in its sole discretion and without prejudice to its other rights until such fees are paid in full. Aimably reserves the right to impose a reconnection fee in the event the Beta Service is suspended and thereafter request access to the Beta Service. Late payments hereunder will accrue interest beginning as of the due date at the rate of one and one-half percent per month or the highest rate allowed by applicable law, whichever is lower.
8. Warranties
8.1 Aimably and Customer each hereby represents and warrants to the other that:
(a) it has the authority to enter into the Agreement and to perform its obligations under the Agreement; and
(b) it will comply with all laws and regulations applicable to it in connection with:
(i) in the case of Aimably, the operation of its business as it relates to the Beta Service, and
(ii) in the case of Customer, the Customer Data and Customer’s use of the Beta Service.
8.2 Aimably warrants that, during the term of the Agreement, the Beta Service provided hereunder does not contain any disabling code (defined as computer code designed to interfere with the normal operation of the Beta Service) or any program routine, device or other undisclosed feature (including but not limited to, a time bomb, virus, software lock, drop-dead device, malicious logic, worm, trojan horse, or trap door) which is designed to delete, disable, deactivate, interfere with or otherwise harm the Beta Service or Customer Data. Customer’s sole and exclusive remedies and Aimably’s entire liability for a breach of the warranties in (a) above will be the re-performance of the deficient Beta Service, and, if Aimably fails to re-perform, Customer may terminate its engagement with the affected Beta Service with notice received within three [3] months of such failure to re-perform.
8.3 Aimably warrants that it shall at all times provide and maintain sufficient physical and electronic security for the Beta Service in accordance with commercially reasonable industry standards, including, without limitation, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Authorized Users). The terms of the Aimably DPA is hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom, and Switzerland are processed by Aimably, the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer’s acceptance of this Agreement shall be treated as its execution of the Standard Contractual Clauses and Appendices.
8.4 At least annually and at no expense to Customer, Aimably will review its operations and procedures relating to its operations center applicable to providing the Beta Service to Customer, including its security and compliance programs, which review will be by a qualified independent third party in accordance with standards as determined by Aimably. Following Customer’s request, Aimably will provide Customer with copies of documentation relevant to such review to the extent permitted by law and subject to applicable regulatory restrictions and confidentiality obligations. To the extent Aimably or Aimably sub-processors process cardholder data, Aimably will verify compliance with the Payment Card Industry Data Security Standards (“PCI DSS”). In the event Aimably becomes aware of a security breach of the Beta Service that results in any actual or reasonably suspected unauthorized disclosure of Customer Data, Aimably shall promptly
(i) notify the Contact;
(ii) investigate the breach or potential breach; and
(iii) provide Customer with the results of the investigation as soon as they are available.
9. Limitation of Warranty
The Beta Service may contain errors, bugs, and other problems which could cause failure of the Beta Service, and the testing and quality assurance of the Beta Service may not yet be completed. Because the Beta Service is subject to change, Aimably reserves the right to alter the Beta Service at any time, and any reliance on the Beta Service is at Customer’s own risk. The warranties in sections 8.2 and 8.3 will not apply if the Beta Service is not used in accordance with the Agreement or any non-conformity is caused by Customer. THE EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT ARE THE SOLE WARRANTIES PROVIDED BY AIMABLY HEREUNDER. AIMABLY SPECIFICALLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE BETA SERVICE OR ANY OTHER ITEMS OR SERVICES COVERED BY OR FURNISHED UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, OR (III) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. AIMABLY DOES NOT WARRANT THAT ANY ITEMS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. The foregoing is all provided “AS IS” and Customer agrees to assume all liability associated therewith, and will hold harmless Aimably, its employees, officers, directors, agents, and representatives involved in the sale to Customer or use of the Beta Service, from and against any and all damages relating to the purchase, installation and use of (or inability to use) the Beta Service.
10. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 9 AND 10 OR FOR FRAUD OR WILLFUL MISCONDUCT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, CLAIMS SOUNDING IN CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE), INCLUDING, BUT NOT LIMITED TO, INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, OR LOSS OF USE OF ANY INFORMATION OR DATA OF THE BETA SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, OR OTHERWISE SHOULD HAVE BEEN AWARE OF, THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED HEREIN. EXCEPT FOR LIABILITY ARISING UNDER SECTIONS 10 AND 11 OR FOR FRAUD OR WILLFUL MISCONDUCT, OR AMOUNTS OWED HEREUNDER, EACH PARTY'S TOTAL LIABILITY UNDER THE AGREEMENT, FOR WHATEVER CAUSE, WHETHER IN AN ACTION IN CONTRACT OR IN TORT OR OTHERWISE, WILL BE LIMITED TO GENERAL MONEY DAMAGES AND SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE OF ALL FEES ACTUALLY PAID OR OWING HEREUNDER BY CUSTOMER TO AIMABLY FOR THE APPLICABLE BETA SERVICE DIRECTLY CAUSING THE DAMAGE DURING THE TWELVE MONTH PERIOD PRECEDING THE TIME THAT THE CLAIM AROSE (BUT NOT LESS THAN THE AMOUNT OF BASE FEES DUE DURING THE FIRST YEAR AFTER THE EFFECTIVE DATE).
11. Indemnification
11.1 Subject to the terms of the Agreement, Aimably shall defend and indemnify Customer and its employees, agents, successors and assigns from and against any and all loss, damage, liability, and expense arising from any claim brought against any such indemnified party by a third party (each a “Claim"):
(a) to the extent alleging that the Beta Service, as provided by Aimably and used in accordance with the terms of the Agreement, infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of such third party; or
(b) to the extent based on a breach of Section 8.4 that results in the unauthorized disclosure of personal data to a third party. Notwithstanding the above, Aimably shall have no liability for any infringement claim to the extent such claim:
(i) pertains to any Aimably Property that has been altered or modified without Aimably’s prior written approval; or
(ii) is based on use of the Beta Service in conjunction with any item not provided by Aimably or authorized by Aimably in writing, unless such use is shown to constitute the infringement when not used in conjunction with the item not provided by Aimably.
11.2 Subject to the terms of the Agreement, Customer shall defend and indemnify Aimably and its employees, agents, successors and assigns from and against any and all Claims the extent alleging that the Customer Data, or Customer’s use of the Beta Service in violation of the terms of the Agreement, infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of, or otherwise harms such third party.
11.3 For any indemnifiable claim described in this Section 11:
(a) the indemnifying party shall have the sole responsibility, at its expense, to defend and, at its sole discretion, to settle any such claim, provided that, if any settlement requires a non-monetary obligation of an indemnified party (other than ceasing use of the Beta Service), then such settlement shall require the indemnified party’s prior written consent, which consent will not be unreasonably withheld; and
(b) the indemnified party shall provide prompt written notice of such claim and reasonably cooperates with indemnifying party (at indemnifying party’s expense) in the defense or settlement of such Claim.
11.4 If, in the event of an indemnifiable infringement claim as set forth in Section 11.1 above, the Beta Service is held to infringe any valid patent, copyright, trademark, trade secret, or other proprietary right of such third party, or in Aimably’s opinion is likely to infringe any valid patent, copyright, trademark, trade secret, or other proprietary right of such third party, then, in addition to its obligations set forth in Section 11.1 above, Aimably shall, at its option and in its sole discretion, either:
(a) procure for Customer the right to continue using the Beta Service in accordance with its rights under the Agreement;
(b) replace or modify the Beta Service with a substantially equivalent service that does not infringe any valid patent, copyright, trademark, trade secret, or other proprietary right of such third party; or
(c) if Aimably is unable to provide one of the foregoing remedies under reasonable terms, or otherwise determines that such remedies are or become economically impractical, then Aimably may terminate the Agreement by providing written notice thereof to Customer, without further obligation by either party, except that (x) Customer shall be entitled to, and Aimably shall pay Customer, a refund equal to the pro-rata amount of any unused pre-paid fees for the Beta Service paid by Customer as of the effective date of such termination; and (y) Aimably’s indemnity obligations under Section 11.1 above apply.
12. Confidentiality
12.1 During the Term of this Agreement, each party may have access to certain Confidential Information of the other party, which value would be impaired if such information were disclosed to third parties ("Confidential Information"). Confidential Information means any information:
(a) marked or otherwise identified as confidential at the time of disclosure; or
(b) that a reasonable person would understand to be confidential based on the type of information or the circumstances of its disclosure.
With respect to Aimably, Confidential Information shall include, without limitation, the Beta Service, the Content and the Deliverables and Confidential Information of Customer shall include, without limitation, the Customer Data.
12.2 During the Term (as defined in Section 13.1 below) and for three [3] years thereafter, the receiving party hereunder shall not use or otherwise disclose any Confidential Information of the disclosing party to a third party without the prior written consent of the disclosing party, except that:
(i) the receiving party may disclose the Confidential Information of the disclosing party to its third party advisers (e.g., auditors or attorneys) who have need to know such Confidential Information in performing services on the receiving party’s behalf and under terms consistent with the confidentiality and non-use in the Agreement;
(ii) Aimably may use or disclose such information solely as required to provide the Beta Service or as otherwise authorized by Customer; and
(iii) Aimably may disclose or use Supportive Information for any purposes whatsoever without any obligation to Customer, and Aimably shall have no confidentiality obligations with respect thereto. Customer agrees that Aimably may copy, modify, create derivative works, publicly display, disclose, distribute, license and sublicense, incorporate and otherwise use the Supportive Information, for any and all commercial and non-commercial purposes.
In addition, each party agrees to take reasonable measures to protect the other party’s Confidential Information and to ensure that such Confidential Information is not disclosed, distributed, or used in violation of the provisions of the Agreement (which measures shall be no less than that which a reasonable person would take with respect to like confidential, proprietary, or trade secret information). Notwithstanding anything to the contrary, the obligations of the receiving party set forth in this Section 12 shall not apply to any information of the disclosing party that:
(a) is or becomes a part of the public domain through no wrongful act of the receiving party;
(b) was in the receiving party’s possession free of any obligation of confidentiality at the time of the disclosing party’s communication thereof to the receiving party;
(c) is developed by the receiving party completely independent from the Confidential Information of the disclosing party; or
(d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with advance written notice, if reasonably possible, such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
12.3 In the event of a breach of this Section, the parties agree that the non-breaching party will suffer irreparable harm and the total amount of monetary damages for any injury to the non-breaching party will be impossible to calculate and would therefore be an inadequate remedy. Accordingly, the parties agree that the non-breaching party shall be entitled to seek temporary, preliminary and permanent injunctive relief against the breaching party without posting bond, in addition to such other rights and remedies to which it may be entitled at law or in equity.
13. Term and Termination
13.1 This Agreement will commence on the Effective Date and will continue until the earlier of:
(a) termination as set forth in this Section 13; or
(b) expiration or termination of all Order Forms.
13.2 Either party may terminate the Agreement as follows:
(a) upon thirty (30) days written notice of the other party’s material breach unless the breach is cured within such 30-day period; or
(b) as permitted under Sections 8.2 and 11.4 above.
13.3 Upon termination of the Agreement:
(a) except for termination by Customer for material breach by Aimably, any amounts owed to Aimably under the Agreement will become immediately due and owing;
(b) all rights granted to Customer under the Agreement shall immediately terminate, in which case Aimably may invalidate the passwords and/or other user identification for Customer and its Authorized Users and otherwise deny further access to the Beta Service;
(c) upon Aimably’s request made within thirty (30) days after such termination, Customer will return or destroy all Aimably property that is in its possession or control, with the exception of Deliverables; and
(d) upon Customer’s written request made within thirty (30) days after such termination, Aimably will allow Customer access to the Service for the purpose of retrieving Customer Data for a period not to exceed thirty (30) days
After such thirty (30)-day period, each party may destroy any such information of the other party in its possession or control. Termination of the Agreement shall not be construed to waive or release any claim that a party is entitled to assert at the time of such termination (including any claim for fees accrued or payable to Aimably prior to the effective date of termination), and the applicable provisions of the Agreement shall continue to apply to such claim until it is resolved. The terms of Sections 2, 3, 4, 8.4, 9, 10, 13.3, and 14 of these Terms and Conditions shall survive the termination of the Agreement for any reason.
14. General
14.1 Relationship of the Parties; Independent Contractors. In making and performing under the Agreement, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer, or partner of the other party for any purpose. Neither party shall have any authority to act for or to bind the other party in any respect, except as otherwise expressly provided in the Agreement. Aimably’s personnel shall not be considered employees of Customer, and shall not be entitled to participate in, or receive benefits under, any of Customer’s employee benefit or welfare plans.
14.2 Assignment. The Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which permission shall not be unreasonably withheld. Any attempted assignment without such consent will be void. Notwithstanding the foregoing, either party may assign its rights and obligations under the Agreement, in whole but not in part, without the other party’s permission, in connection with any merger, consolidation, sale of all or substantially all of such assigning party’s assets, or any other similar transaction; provided, that the assignee:
(a) provides prompt written notice of such assignment to the non-assigning party;
(b) is capable of fully performing the obligations of the assignor under the Agreement; and
(c) agrees to be bound by the terms and conditions of the Agreement.
The Agreement is binding on the parties hereto and their respective successors and permitted assigns.
14.3 Notices. Notices shall be in writing and will be deemed given when delivered in person, or when sent via electronic communication with confirmation or overnight courier with confirmed delivery, with a copy to sales@aimably.com. The respective addresses of the parties for notice are set forth on the Order Form. Either party may change its notice address upon written notice to the other party.
14.4 Waiver and Severability. A waiver of any breach of the Agreement is not deemed a waiver of any other breach. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
14.5 Governing Law and Venue. Any action related to this Agreement shall be governed by and construed in accordance with the applicable law identified below (without reference to its principals of conflict of laws), as determined by Customer’s domicile.
14.6 Publicity. Customer agrees to assign, and hereby assigns, the right to Aimably to use the following Customer Data for publicity activities such as customer listings (reference listings), reference calls and stories, press testimonials, case studies, sales materials, and site visits:
(a) Customer name;
(b) any and all Analyses derived from Customer Data, provided such information does not identify Customer or a specific individual as the source of such data; and
(c) any and all Deliverables produced during the course of the Beta Service, provided such information does not identify Customer or a specific individual as the source of such data.
Except as otherwise expressly authorized herein or by Customer in writing, the non-exclusive publicity rights set forth in the Agreement are the entirety of Aimably’s rights in connection with the Customer Data.
14.7 Export Compliance. Aimably Confidential Information is subject to export control laws of various countries, including the laws of the United States. Customer will not submit Aimably Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Aimably Confidential Information to countries, persons, or entities if prohibited by export laws.
14.8 Force Majeure. If a party’s performance of any of its obligations (other than payment of Fees) pursuant to the Agreement is delayed or prevented by any cause beyond a party’s reasonable control, including without limitation fire, flood, earthquake, extreme adverse weather, strike, civil disorders, government or military authority action, act or war or terrorism, act of God, pandemic or other similar causes (each, a “Force Majeure Event”), then such party shall be excused for such delay or non-performance, as applicable, of those obligations affected by the Force Majeure Event for as long as the Force Majeure Event continues. Such party shall use commercially reasonable efforts to recommence performance as soon as reasonably practicable.
14.9 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between Aimably and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representation, discussions, and writing (including any confidentiality agreements) are merged in and superseded by the Agreement. This Agreement may only be modified in writing signed by both parties, except as permitted under Section 5.1.
14.10 Counterparts and Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together as one instrument. Electronic signatures that comply with applicable law are deemed original signatures.
15. Definitions.
In addition to those terms defined elsewhere in the Agreement, the following words and phrases in initial capital letters shall have the meanings set forth below:
15.1 “Affiliate" means each legal entity that directly or indirectly controls, is controlled by, or is under common control with Aimably or Customer, as applicable, on or after the Effective Date and for so long as such entity directly or indirectly controls, remains controlled by, or is under common control with Aimably or Customer (where “controls” (in its various forms herein) means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership), excluding any direct competitor or entity that is a party to a written agreement with Aimably for the same Beta Service(s) that are the subject of the Agreement.
15.2 “Agreement” means these Terms and Conditions together with any exhibits attached hereto, and each Order Form with any exhibits attached hereto.
15.3 “Authorized User” means any individual to whom Customer or its Affiliates grants access authorization to use the Beta Service, including without limitation an employee, agent, contractor, partner, shareholder, or representative, provided any such Authorized User is not a competitor of Aimably.
15.4 "Beta Service" means any hosted, supported and operated on-demand solution and related professional services provided by Aimably under an Order Form and described in its exhibits.
15.5 "Content" means all content, excluding Customer Data, located on or contained in the Aimably website, or any other website owned or controlled by Aimably, and any information, documents, reports, benchmarks or similar items contained in or made available to Customer in the course of using the Beta Services, other than the Beta Service itself or Customer Data.
15.6 “Customer” means the legal entity identified in the Order Form.
15.7 "Customer Data" means any content, materials, data, and information specific to Customer or its Authorized Users that is entered into the Beta Service by or on behalf of Customer or that Customer derives from its use of and stores in the Beta Service (e.g. Customer-specific reports). Customer Data and its derivatives will not include Aimably’s Confidential Information.
15.8 "Deliverables" means any work product specified and described in the Order Form or its exhibits once it has been delivered in final form by Aimably to Customer during the course of the Beta Service.
15.9 “Engagement Term” means the term of a Beta Service engagement identified in the applicable Order Form, including all renewals or expansions (if applicable).
15.10 “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including for example, viruses, worms, time bombs, and Trojan horses.
15.11 “Order Form” means the written ordering document for the Beta Service that references these Beta Program Terms and Conditions and may include attached exhibits.
15.12 "Password" means the unique password assigned to each Authorized User for access to the Beta Service.
15.13 “Usage Metrics” means the standard of measurement for determining the permitted use and calculating the fees due for the Beta Service as set forth in an Order Form.
15.14 “User ID” means the unique credentials created and assigned to each Authorized User for the purpose of accessing and utilizing the Beta Service in accordance with the Agreement.
