1. Your Use of The Services - Subject to these Terms, you are granted a license to use our Services. If you use the Abacus.AI Cloud Service or any of our Consulting Services, you acknowledge and agree that your access to and use of the Services will be subject to these terms and conditions.
2. Acceptable Use Policy - Customer agrees not to, and not to allow third parties to use the Services:
- to violate, or encourage the violation of, the legal rights of others (for example, this may include allowing Customer End Users to infringe or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act);
- to engage in, promote or encourage illegal activity;
- for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
- to disable, interfere with or circumvent any aspect of the Services;
- to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertising or other solicitations (“spam”); or
- to use the Services, or any interfaces provided with the Services, to access any other Abacus.AI product or service in a manner that violates the terms of service of such other Abacus.AI product or service.
3. Intellectual Property Rights - Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data and the Application or Project (if applicable), and Abacus.AI owns all Intellectual Property Rights in the Services and Software
4. Confidential Information - "Confidential Information" means information that one party (or an Affiliate) discloses to the other party (recipient) under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.
- 4.1 Obligations - The recipient will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
- 4.2 Required Disclosure - Notwithstanding any provision to the contrary in this Agreement, the recipient may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the other party of such disclosure before disclosing; and (ii) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the recipient determines that complying with (i) and (ii) could: (a) result in a violation of Legal Process; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual.
5. Term and Termination.
- 5.1 Agreement Term - The "Term" of this Agreement will begin on the Effective Date and continue until the Agreement is terminated as set forth in Section 5 of this Agreement.
- 5.2 Termination for Breach - Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches. In addition, Abacus.AI may terminate any, all, or any portion of the Services or Projects, if Customer meets any of the conditions in Section 5.2(i), (ii), and/or (iii).
- 5.3 Termination for Convenience - Customer may stop using the Services at any time. Customer may terminate this Agreement for its convenience at any time on prior written notice and upon termination, must cease use of the applicable Services. Abacus.AI may terminate this Agreement for its convenience at any time without liability to Customer.
- 5.4 Effect of Termination - If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) Abacus.AI will delete all Customer data for all storage devices; (iii) Customer will cease any use of all Services provided by Abacus.AI and (iv) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.
6. Limitation of Liability.
- 6.1 Limitation on Indirect Liability - To the maximum extent permitted by applicable law, neither party, will be liable under this agreement for lost revenues or indirect, special, incidental, consequential, exemplary, or punitive damages, even if the party knew or should have known that such damages were possible and even if direct damages do not satisfy a remedy.
- 6.2 Exceptions to Limitations - These limitations of liability do not apply to violations of a party's Intellectual Property Rights by the other party, indemnification obligations, or Customer's payment obligations.
7. Indemnification.
- 7.1 By Customer - Unless prohibited by applicable law, Customer will defend and indemnify Abacus.AI and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, Project, Instance, Customer Data or Customer Brand Features; or (ii) Customer's, or Customer End Users', use of the Services in violation of the acceptable use policy.
- 7.2 By Abacus.AI. Abacus.AI will defend and indemnify Customer and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising solely from an Allegation that use of (a) Abacus.AI's technology used to provide the Services or (b) any Abacus.AI Brand Feature infringes or misappropriates third party's patent, copyright, trade secret, or trademark.
- 7.3 Exclusions - This Section 7 will not apply to the extent the underlying Allegation arises from:
- a. the indemnified party's breach of this Agreement;
- b. modifications to the indemnifying party's technology or Brand Features by anyone other than the indemnifying party;
- c. combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party; or
- d. use of non-current or unsupported versions of the Services or Brand Features;
- 7.4 Conditions. Sections 7.1 and 7.2 will apply only to the extent:
- a. The indemnified party has promptly notified the indemnifying party in writing of any Allegation(s) that preceded the Third-Party Legal Proceeding and cooperates reasonably with the indemnifying party to resolve the Allegation(s) and Third-Party Legal Proceeding. If breach of this Section 7.4(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 7.1 or 7.2 (as applicable) will be reduced in proportion to the prejudice.
- b. The indemnified party tenders sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.
8. Representations and Warranties - Each party represents and warrants that: (a) it has full power and authority to enter into the Agreement; and (b) it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable.
9. Disclaimer - Without limiting the foregoing, our Service and all other features offered, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind, either express or implied, including but not limited to, fitness for a particular purpose, title, or non-infringement. Should applicable law not permit the foregoing exclusion of express or implied warranties, then Abacus.AI hereby grants the minimum express or implied warranty required by such applicable law.
10. Notices - All notices must be in writing and addressed to the other party's legal department and primary point of contact. The email address for notices being sent to legal@abacus.ai. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).
11. Assignment - Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.
12. Change of Control - If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.
13. Force Majeure - Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.
14. No Agency - This Agreement does not create any agency, partnership or joint venture between the parties.
15. No Waiver - Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
16. Severability - If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.
17. Miscellaneous - Abacus.AI’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
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