This At HUM Subscription Terms of Service ("Agreement") is entered into by and between At HUM (as defined below) and the entity or person placing an order for or accessing any Services ("Customer" or "you"). If you are accessing or using the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to "you" or "Customer" reference your company.
This Agreement permits Customer to purchase subscriptions to online software-as-a-service products and other services from At HUM pursuant to any At HUM ordering documents, online registration, order descriptions or order confirmations referencing this Agreement ("Order Form(s)") and sets forth the basic terms and conditions under which those products and services will be delivered. This Agreement will govern Customer's initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement.
The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Service (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement.
Modifications to this Agreement : From time to time, At HUM may modify this Agreement. Unless otherwise specified by At HUM, changes become effective for Customer upon renewal of Customer's current Subscription Term (as defined below) or entry into a new Order Form. At HUM will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If At HUM specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and Customer objects to such changes, Customer may terminate the applicable Subscription Term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY SERVICES, YOU ARE AGREEING TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT USE ANY SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THIS AGREEMENT IS LEGALLY BINDING UPON IT. THIS AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
PLEASE READ IT CAREFULLY.
“At HUM” means (a) Avria Inc. (dba “At HUM”), a Delaware corporation with offices at 75 E. Santa Clara Ave., San Jose, CA 95113, USA.
"Affiliate" means any entity under the control of Customer where "control" means ownership of or the right to control greater than 50% of the voting securities of such entity.
"Contractor" means an independent contractor or consultant who is not a competitor of At HUM.
"Customer Data" means any data of any type that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from Third Party Platforms) and (b) data provided by or about People (including design preference information, location information, and conversational information) that are collected from the Customer Properties using the Services.
"Customer Properties" means Customer's websites, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services to market its products and properties to People.
"Dashboard" means At HUM’s user interface for accessing and administering the Services that Customer may access via the web or the At HUM Apps.
"Documentation" means the technical user documentation provided with the Services.
"Feedback" means comments, questions, suggestions or other feedback relating to any At HUM product or service.
"At HUM App" means any desktop, mobile, or virtual reality headset app included in the applicable Service that is made available by At HUM.
"Laws" means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
"People" (in the singular, "Person") means Customer's end user customers, potential customers, and other users of and visitors to the Customer Properties.
"Permitted User" means an employee or Contractor of Customer or its Affiliate who is authorized to access the Service.
"Sensitive Personal Information" means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards ("PCI DSS"); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act ("HIPAA"); or (iii) any other personal data of an EU citizen deemed to be in a "special category" (as identified in EU General Data Protection Regulation or any successor directive or regulation)."Services" means At HUM’s proprietary software-as-a-service solution(s), including the Dashboard, At HUM Apps, as described in the applicable Order Form.
"Taxes" means any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of At HUM.
"Third-Party Platform" means any software, software-as-a-service, data sources or other products or services not provided by At HUM that are integrated with Services as described in the Documentation.
2. At HUM Services
2.1. Services Overview. At HUM's Services are virtual reality software-as-a-service solutions offered through a single platform. The Services are designed to enable Customer to virtually display and market real estate properties to People through a virtual reality and desktop app that customizes the featured real estate property using artificial intelligence algorithms, produce analytical data based on People’s use of the At HUM Apps, and enable Customer to manage data regarding those People. Customer may import and export Customer Data.
2.2. Provision of Services. Each Service is provided on a subscription basis for a set term designated on the Order Form (each, a "Subscription Term"). At HUM may also offer Professional Services (as defined in Section 12) related to certain Services. Customer will purchase and At HUM will provide the specific Services and related Professional Services (if any) as specified in the applicable Order Form.
2.3. Access to Services. Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including without limitation the number of People tracked). Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on At HUMs systems, Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Facebook), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Permitted User who has access to a user ID is no longer an employee (or Contractor, as set forth below) of Customer, then Customer will immediately delete such user ID and otherwise terminate such Permitted User's access to the Service. The right to use the Services includes the right to collect Customer Data for use with the Services as further described below.
2.4. At HUM Apps. To the extent At HUM provides At HUM Apps for use with the Services, subject to all of the terms and conditions of this Agreement, At HUM grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during any applicable Subscription Term to use the At HUM Apps, but only in connection with Customer's use of the Service and otherwise in accordance with the Documentation and this Agreement.
2.6. Contractors and Affiliates. Customer may permit its Contractors and its Affiliates' employees and Contractors to serve as Permitted Users, provided Customer remains responsible for compliance by such individuals with all of the terms and conditions of this Agreement, and any use of the Services by such individuals is for the sole benefit of Customer.
2.7. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to At HUM); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) the "Powered by At HUM" designation that may appear as part of the deployment of the Services on Customer Properties and (ii) notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.
2.8. At HUM APIs. If At HUM makes access to any APIs available as part of the Services, At HUM reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, At HUM may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if At HUM believes, in its sole discretion, that Customer's usage is in breach of this Agreement or may negatively affect the Services (or otherwise impose liability on At HUM).
2.9. Trial Subscriptions. If Customer receives free access or a trial or evaluation subscription to the Service (a "Trial Subscription"), then Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by At HUM (the "Trial Period"). Trial Subscriptions are permitted solely for Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If Customer does not enter into a paid Subscription Term, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period. At HUM has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AT HUM WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.
3. Customer Data
3.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data provided to At HUM. Subject to the terms of this Agreement, Customer hereby grants to At HUM a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer.
3.2. Storage of Customer Data. At HUM does not provide an archiving service. At HUM agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. At HUM expressly disclaims all other obligations with respect to storage.
3.3. Customer Obligations.
a) In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to At HUM that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting At HUM the rights in Section 3.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party intellectual property, publicity, privacy or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Customer Properties or Customer's accounts with any Third-Party Platforms. Customer further represents and warrants that all Customer Data complies with the Section 5. Customer will be fully responsible for any Customer Data submitted to the Services by any Person as if it was submitted by Customer.
b) No Sensitive Personal Information. Customer specifically agrees not to use the Services to collect, store, process or transmit any Sensitive Personal Information. Customer acknowledges that At HUM is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant. At HUM will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
c) Compliance with Laws. Customer agrees to comply with all applicable Laws in its use of the Services.e) Social Media Data.
i. Collection of Data. The Services may enable Customer to retrieve publicly-available information about People including without limitation social media information, profile information, gender, company, job titles, photos, physical addresses, and website URLs ("Social Media Data") based on People's email addresses input into the Services.
ii. Restrictions. Customer agrees not to use any Social Media Data obtained via the Services for the purposes of cookie tracking, ad exchanges, ad networks, data brokerages, sending electronic communications (including email) in violation of applicable Law, or any other activity or purpose that may be identified as prohibited by At HUM from time to time.
3.4. Indemnification by Customer. Customer will indemnify, defend and hold harmless At HUM from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys' fees and costs) arising out of or in connection with any claim arising from or relating to any Customer Data or breach or alleged breach by Customer of Section 3.3 (Customer Obligations). This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all necessary cooperation of At HUM at Customer's expense. Notwithstanding the foregoing sentence, (a) At HUM may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) Customer will not settle any claim without At HUM's prior written consent, unless the settlement fully and unconditionally releases At HUM and does not require At HUM to pay any amount, take any action, or admit any liability.
3.5. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that At HUM may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to Customer ("Aggregated Anonymous Data"), and At HUM may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other At HUM customers. For clarity, this Section 3.5 does not give At HUM the right to identify Customer as the source of any Aggregated Anonymous Data.
At HUM agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Customer Data. However, At HUM will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond At HUM's control.
5. Acceptable Use.
To keep the Services running safely and smoothly, we need our users to agree not to misuse them. Specifically, you agree not to:
(a) probe, scan, or test the vulnerability of any system or network used with the Services;
(b) tamper with, reverse engineer or hack the Services, circumvent any security or authentication measures of the Services or attempt to gain unauthorized access to the Services (or any portion thereof) or related systems, networks or data;
(c) modify or disable the Services or use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or related systems, network or data;(d) access or search the Services by any means other than our publicly supported interfaces, or copy, distribute, or disclose any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”;
(e) overwhelm or attempt to overwhelm our infrastructure by imposing an unreasonably large load on the Services that consume extraordinary resources, such as by: (i) using “robots,” “spiders,” “offline readers” or other automated systems to send more request messages to our servers than a human could reasonably send in the same period of time using a normal browser; or (ii) going far beyond the use parameters for any given Service as described in its corresponding documentation;
(f) solicit any users of our Services for commercial purposes;
(g) use the Services to generate or send unsolicited communications, advertising or spam, or otherwise cause At HUM to become impaired in its ability to send communications on its own or on its customers’ behalf (e.g., by causing At HUM to become registered on any Email DNS blacklist or otherwise be denied services by any other third party communications service provider);
(h) misrepresent yourself or disguise the origin of any data, content or other information you submit (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with At HUM or any third party) or access the Services via another user’s account without their permission;
(i) use the Services for any illegal purpose or in violation of any laws (including without limitation data, privacy and export control laws);
(j) use the Services to violate the privacy of others, or to collect or gather other users’ personal information (including account information) from our Services;
(k) use the Services to stalk, harass, bully or post threats of violence against others;
(l) submit (or post, upload, share or otherwise provide) data, content or other information that (i) infringes At HUM’s or a third party’s intellectual property, privacy or other rights or that you don’t have the right to submit (including confidential or personal information you are not authorized to disclose); (ii) that is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic, indecent, harassing, hateful, religiously, racially or ethnically offensive, that encourages illegal or tortious conduct or that is otherwise inappropriate in At HUM’s discretion; (iii) contains viruses, bots, worms, scripting exploits or other similar materials; or (iv) that could otherwise cause damage to At HUM or any third party;
(m) promote or advertise products or services other than your own without appropriate authorization;
(n) use meta tags or any other “hidden text” including At HUM’s or our suppliers’ product names or trademarks; or
(o) permit or encourage anyone else to commit any of the actions above.Without affecting any other remedies available to us, At HUM may permanently or temporarily terminate or suspend a user’s account or access to the Services without notice or liability if At HUM (in its sole discretion) determines that a user has violated this Section 5.
6.1. At HUM Technology. This is a subscription agreement for access to and use of the Services. Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words "purchase", "sale" or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that At HUM or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Services and all Documentation, professional services deliverables and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including as may incorporate Feedback (collectively, "At HUM Technology"). Except as expressly set forth in this Agreement, no rights in any At HUM Technology are granted to Customer. Further, Customer acknowledges that the Services are offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of any of the Services, except for the At HUM Apps in the format provided by At HUM.
6.2. Feedback. Customer, from time to time, may submit Feedback to At HUM. At HUM may freely use or exploit Feedback in connection with any of its products or services.
7. Subscription Term, Fees & Payment
7.1. Subscription Term and Renewals. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Fees and Payment . All fees are as set forth in the applicable Order Form and will be paid by Customer within thirty (30) days of invoice, unless (a) Customer is paying via Credit Card (as defined below) or (b) otherwise specified in the applicable Order Form. Except as expressly set forth in Section 9 (Limited Warranty), all fees are non-refundable. The rates in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, At HUM receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
7.3. Payment Via Credit Card. If you are purchasing the Services via credit card, debit card or other payment card ("Credit Card"), the following terms apply: Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services, Customer hereby authorizes At HUM (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all fees accrued as of that date (if any) in accordance with the applicable Order Form. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription fees for the remainder of Customer's applicable billing period and overage fees for the prior month.Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer's Credit Card may charge a foreign transaction fee or other charges.Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to At HUM and At HUM may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.Changing Credit Card Information. At any time, Customer may change its Credit Card information on the Dashboard.Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending At HUM notice of non-renewal to firstname.lastname@example.org in accordance with Section 7.1 (Subscription Term and Renewals), with termination effective at the end of the current Subscription Term. As set forth in Section 2.9 (Trial Subscriptions), if Customer does not enter into a paid Subscription Term following a Trial Period, this Agreement and Customer's right to access and use the Services will terminate at the end of the Trial Period and Customer's Credit Card will not be charged.Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, At HUM will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which At HUM will not charge Customer's Credit Card for any additional fees.
7.4. Suspension of Service. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), At HUM reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full. At HUM also reserves the right to suspend Customer's access to the Services without liability to Customer if Customer's use of the Services is in violation of the Section 5.
8. Term and Termination
8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
8.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related At HUM Technology) and delete (or, at At HUM's request, return) any and all copies of the Documentation, any At HUM passwords or access codes and any other At HUM Confidential Information in its possession. Provided this Agreement was not terminated for Customer's breach, Customer may retain and use internally copies of all reports exported from any Service prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data input into any Service, and that At HUM may delete any such data as may have been stored by At HUM at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.7 (General Restrictions), 2.9 (Trial Subscriptions), 3.2 (Storage of Customer Data), 3.4 (Indemnification by Customer), 3.5 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 7.3 (Payment Via Credit Card), 8 (Term and Termination), 9.2 (Warranty Disclaimer), 13 (Limitation of Remedies and Damages) 14 (Confidential Information) and 16 (General Terms).
9. Limited Warranty
9.1. Limited Warranty. At HUM warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. At HUM's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for At HUM to use commercially reasonable efforts to correct the reported non-conformity, or if At HUM determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
9.2. Warranty Disclaimer . EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL Services and PROFESSIONAL SERVICES ARE PROVIDED "AS IS". NEITHER AT HUM NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. AT HUM DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES AT HUM WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. AT HUM SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AT HUM. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
10. Availability and Service Credits
10.1 Target Availability. At HUM will use commercially reasonable efforts to make each Service available with an uptime of 99.8% of each calendar month ("Target Availability").
10.2 Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of At HUM’s reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance.
10.3 Scheduled Maintenance. "Scheduled Maintenance" means At HUM’s scheduled routine maintenance of the Services for which At HUM notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month. At HUM typically performs Scheduled Maintenance once per month.
10.4 Remedy for Failure to Meet Target Availability. If there is a verified failure of a Service to meet Target Availability in two (2) consecutive months, then Customer may terminate the applicable Subscription Term by sending written notice of termination within thirty (30) days after the end of the second such month, in which case At HUM will refund to Customer any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. This termination and refund right is Customer's sole and exclusive remedy, and At HUM’s sole and exclusive liability, for At HUM’s failure to meet the Target Availability.
During the Subscription Term of each Service, At HUM will provide end user support in accordance with At HUM's Support Policy ("Support Policy").
12. Professional Services
At HUM may provide the professional consulting services ("Professional Services") purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information ("SOW"). Unless Professional Services are provided on a fixed-fee basis, Customer will pay At HUM at the per-hour rates set forth in the Order Form (or, if not specified, at At HUM's then-standard rates) for any excess services. Customer will reimburse At HUM for reasonable travel and lodging expenses as incurred. Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Customer's rights to use the Service set forth in Section 2 (At HUM Services) and the applicable SOW, but At HUM will retain all right, title and interest in and to any such work product, code or deliverables and any derivative, enhancement or modification thereof created by At HUM (or its agents).
13. Limitation of Remedies and Damages
13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2. Liability Cap. AT HUM'S AND ITS SUPPLIERS' ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AT HUM DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT.
13.3. Excluded Claims. "Excluded Claims" means any claim arising (a) from Customer's breach of Section 2.7 (General Restrictions); (b) under Section 3.3 (Customer Obligations) or 3.4 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 14 (Confidential Information) (but excluding claims arising from operation or non-operation of any Service).
13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
14. Confidential Information
Each party (as "Receiving Party") agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any At HUM Technology, performance information relating to any Service, and the terms and conditions of this Agreement will be deemed Confidential Information of At HUM without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for At HUM, the subcontractors referenced in Section 16.8 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
At the request of At HUM, Customer agrees to the issuance of a joint press release ("Press Release") on a mutually agreed upon date or the 30th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on At HUM's web site and in At HUM promotional materials. Customer agrees that At HUM may disclose Customer as a customer of At HUM.
16. General Terms
16.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.
16.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.
16.3. Governing Law; Dispute Resolution.a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, ("Dispute"), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). If an Initial Notice of Dispute is being sent to At HUM it must be emailed to email@example.com and sent via mail to:
75 E. Santa Clara St.,
FL6San Jose,CA 95113
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Direct Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.
b) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted before a single neutral arbitrator, before JAMS in San Francisco, California. The arbitration shall be administered by JAMS in accordance with this document and the JAMS Streamlined Rules and Procedures for the Arbitration, with one addition: The limitation of one discovery deposition per side shall be applied by the arbitrator, unless it is determined, based on all relevant circumstances, that more depositions are warranted. The arbitrator shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery. The arbitration will occur in San Francisco, California, but the parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.
The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this agreement shall be resolved by the arbitrator. To the extent state law is applicable, the arbitrator shall apply the substantive law of California.
All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator's award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration. c) Choice of Law and Jurisdiction. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA. IN ANY DISPUTE, CALIFORNIA LAW SHALL APPLY. d) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND AT HUM AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR. e) Injunctive Relief. Notwithstanding the above provisions, At HUM may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
16.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
16.5. Amendments; Waivers. Except as otherwise provided herein, no supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.
16.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Services are on-line, subscription-based products, and that in order to provide improved customer experience At HUM may make changes to the Services, and At HUM will update the applicable Documentation accordingly. The support and service level availability terms described in the Support Policy and Section 10 may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices (but the modifications will not materially decrease At HUM's obligations as compared to those reflected in such terms as of the Effective Date).
16.7. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
16.8. Subcontractors . At HUM may use the services of subcontractors and permit them to exercise the rights granted to At HUM in order to provide the Services under this Agreement, provided that At HUM remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement.
16.9. Subpoenas. Nothing in this Agreement prevents At HUM from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but At HUM will use commercially reasonable efforts to notify Customer where permitted to do so.
16.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent
16.11. Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country, (ii) Customer will not (and will not permit any of its users to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations
16.12. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.