BUILDCOGNITION, INC. TERMS OF SERVICE
Last Modified: February 18, 2025
1. Acceptance of the Terms of Service.
These terms of service are entered into between you (“Customer” or “you”) and BuildCognition, Inc. (“Company”, “we” or “us”). Company and Customer may be referred to herein collectively as the "Parties" or individually as a "Party." The following terms and conditions (the “Terms”) govern your access to and use of https://www.buildcognition.com/ (the “Site”), the terms of which are hereby incorporated by reference herein, including any content, functionality and Services (as defined below) offered on or through the Site, whether as a guest, customer, registered user, or Authorized User (as defined below). Please read these Terms carefully before using the Site. Do not use the Site if you do not accept the Terms.
BY ACCESSING OR OTHERWISE USING THE SITE AND SERVICES YOU AGREE TO BE BOUND AND ABIDE BY THE TERMS SET FORTH HEREIN AND OUR PRIVACY POLICY FOUND AT https://buildcognition.com/privacy (THE “PRIVACY POLICY”), WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF SERVICE OR PRIVACY POLICY, YOU MAY NOT USE THE SITE OR RECEIVE THE BENEFITS OF THE SERVICES.
The Site and Services are offered and available to users who are eighteen (18) years of age or older and reside in the United States or any of its territories or possessions. By using the Site, you represent and warrant that you meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the Site.
2. Changes to the Terms of Service.
We may revise and update these Terms of Service from time to time in our sole discretion. All changes are effective immediately when we post them. Your continued use of the Site following the posting of revised Terms of Service means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
3. Accessing the Site and Account Security.
We reserve the right to withdraw or amend the Site, and any service or material we provide on the Site, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Site are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Site, or the entire Site, to users, including registered users.
You are responsible for:
(a) Making all arrangements necessary for you to have access to the Site.
(b) Ensuring that any information you provide in connection with your account remains accurate and up-to-date.
(c) Ensuring that all persons who access the Site through your internet connection and/or your account are aware of these Terms of Service and comply with them.
To access the Site or some of the resources they offer, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site that all the information you provide on the Site is correct, current and complete. You agree that all information you provide to register with the Site or otherwise, including but not limited to through the use of any interactive features on the Site, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
If you are provided with a username, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity except as expressly authorized herein. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Site or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Service.
4. Definitions.
(a) “Affiliates” means any company or person, directly or indirectly, in control of, controlled by, or under common control of Customer. A Party shall be deemed to control another company if such Party possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other company, whether through the ownership of voting securities, by contract or otherwise.
(b) "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
(c) "Authorized User" means Customer's employees, consultants, contractors, Affiliates, subcontractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the Services has been purchased hereunder.
(d) "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, stored, processed, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
(e) "Documentation" means Company’s user manuals, handbooks, and guides relating to the Services provided from time to time by Company to Customer electronically relating to the Services.
(f) "Purchase Order" means the portion of the Site pursuant to which Customer orders Services in accordance with, and subject to, the terms and conditions of these Terms, to the extent such expressly references these Terms.
(g) "Company IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics and any information, data, or other content derived from Company's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
(h) "Services" means the software-as-a-service offering that Customer subscribes for pursuant to a Purchase Order.
(i) “Subscription Term” means the period of access granted to Customer specified on an applicable Purchase Order.
5. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all others terms and conditions of these Terms, Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Company shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
(b) API. To the extent expressly included in a Purchase Order, Customer’s right to access and use the Services includes the use of Company’s application programming interface and the accompanying documentation, code, and related materials (collectively, the “Company API”) designed to allow Customer to integrate the Company API with third party applications approved by Company in its sole discretion.
(c) Documentation License. Subject to the terms and conditions contained in these Terms, Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15(g)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
(d) Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use any data mining, robots or similar data gathering and extraction methods with respect to the Services; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(e) Reservation of Rights. Company reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Company IP.
(f) Suspension. Notwithstanding anything to the contrary in these Terms, Company may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Company reasonably determines that (A) there is a threat or attack on any of the Company IP; (B) Customer's or any Authorized User's use of the Company IP disrupts or poses a security risk to the Company IP or to any other customer or vendor of Company; (C) Customer, or any Authorized User, is using the Company IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Company's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Company has suspended or terminated Company's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 8(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Company shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(g) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Company may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Company and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Customer acknowledges that Company may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
6. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of the provisions of these Terms as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
(b) Third-Party Products. Company may from time to time make third-party products available to Customer that were not created by Company. For purposes of these Terms, such third-party products are subject to their own terms and conditions and the applicable flow-through provisions communicated to Customer by Company from time to time. If Customer does not agree to abide by the applicable terms for any such third-party products, then Customer should not install or use such third-party products.
7. Service Levels and Support. Subject to the terms and conditions of these Terms, Company shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out at https://buildcognition.com/sla. Subject to Customer’s compliance with these Terms, Company shall provide technical support for the Services (a) access to a phone number +1 (510) 831-5127 from 9 am to 5 pm PT, five days a week (Monday to Friday), excluding U.S. national holidays, (b) a dedicated email account at support@buildcognition.com , and (c) personnel to provide responses to any telephone and email inquiries. Company will use commercially reasonable efforts to make the Services available twenty-four hours a day, seven days a week, except for (i) scheduled maintenance (of which Company will give advance electronic notice), and (ii) unplanned maintenance, and (iii) unavailability caused by a force majeure event more specifically described in Section 15(c).
8. Fees and Payment.
(a) Fees. Customer shall pay Company the fees ("Fees") as set forth in each respective Purchase Order without offset or deduction. Unless otherwise set forth in a Purchase Order, the Fees shall be due and payable in full and in advance of each annual period during the Term. Customer shall make all payments hereunder in US dollars. If Customer fails to make any payment when due, without limiting Company's other rights and remedies: (i) Company may charge interest on the past due amount at the rate of (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Company for all reasonable costs incurred by Company in collecting any late payments not otherwise subject to a good faith dispute or interest, including reasonable attorneys' fees, court costs, and collection agency fees to the extent Company is the prevailing party as determined in a final, non-appealable order by a court of competent jurisdiction; and (iii) if such failure continues for ten (10) days or more, Company may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full. Unless otherwise set forth in an applicable Purchase Order, Company reserves the right to increase the Fees for each annual period upon thirty (30) days’ prior written notice to Customer, and such modified pricing shall become effective thereafter at the time of renewal.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company's income.
9. Confidential Information.
(a) From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (A) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (B) to establish a Party's rights under these Terms, including to make required court filings. On the expiration or termination of an applicable Subscription Term, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the date you agreed to these Terms (the “Effective Date”) and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of any applicable Subscription Term for as long as such Confidential Information remains subject to trade secret protection under applicable law.
(b) Security Precautions. Company agrees to take all reasonable security precautions designed to protect against the unauthorized use, publication, destruction, or disclosure of the Customer Data, including but not limited to the use of security control technologies (such as encryption, firewalls, passwords, authentication, data access and transmission controls and control procedures, virus protection and anti-spy software, etc.), physical security measures and limited access to buildings or acknowledgements with person having access to Customer Data. The objective of the security precautions shall be to ensure the security and confidentiality of Customer Data, protect against any anticipated threats or hazards to the security or integrity of Customer Data and protect against the unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience.
(c) Physical Data Location. All Customer Data shall be stored and reside within data centers located only in the United States.
(d) Security Breach. To the extent a state or federal security breach law applies to a Security Breach, Company will comply with the applicable law. “Security Breach” means the loss of control, compromise, unauthorized disclosure, unauthorized acquisition, or any similar occurrence where (i) a person or company other than an Authorized User accesses or has the potential to access Confidential Information or encrypted personal information or (ii) an Authorized User accesses Confidential Information or personal information for an unauthorized purpose. In all circumstances, Company will promptly notify Customer of a Security Breach, following the discovery or notification of such Security Breach.
10. Intellectual Property Ownership; Feedback.
(a) Company IP. Customer acknowledges that, as between Customer and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to third-party products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, therein.
(b) Customer Data. Company acknowledges that, as between Company and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Company to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Company on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback. Any Feedback is given entirely voluntarily, and Company shall be free to use, not use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. Customer shall retain an unlimited, perpetual license to any and all Feedback provided.
11. Limited Warranty and Warranty Disclaimer.
(a) For the duration of the Subscription Term, Company warrants that the Services, when used in accordance with instructions in the Contract Documents, shall operate without material defects and as described in the Contract Documents and Documentation in all material respects. Company shall, at its own expense, and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty, (i) correct any reproducible error in the Services reported to Company by Customer in writing during the Subscription Term, or (ii) if Company determines that it is unable to correct the error or replace the Services, Company shall refund Customer the prorated amount of any prepaid fees for the Subscription Term, in which case these Terms and Customer’s right to use the Services shall terminate.
(b) Company does not warrant that the Services will be provided without interruption or be completely error free. The Services may use third-party hosting, security and development tools or provide links to third-party websites, content, software and services. Customer acknowledges and agrees that Company is not responsible or liable for the availability or accuracy of such third-party services or the content, products, or services on or available from such third-parties. Customer is responsible for, and assumes, all risk arising from its use of any such third-party services.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), THE COMPANY IP IS PROVIDED "AS IS" AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 11(a), COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
12. Indemnification.
(a) Company Indemnification.
(i) Company shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party's US intellectual property rights, provided that Customer promptly notifies Company in writing of such Third-Party Claim, cooperates with Company, and allows Company the sole authority to control the defense and settlement of such Third-Party Claim.
(ii) If a Third Party-Claim is made or appears possible, Customer agrees to permit Company, at Company's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Company determines that neither alternative is reasonably available, Company may terminate the applicable Subscription Term, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
(iii) This Section 12(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, products or technology not provided by Company or authorized by Company in writing; (B) modifications to the Services not made by Company; or (C) Customer Data.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Company's option, defend Company from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Company or authorized by Company in writing; or (iv) modifications to the Services not made by Company, provided that Customer may not settle any Third-Party Claim against Company unless Company consents to such settlement, and further provided that Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
(c) SOLE REMEDY. THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND COMPANY'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. LIMITATIONS OF LIABILITY.
IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THESE TERMS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
14. Term and Termination.
(a) Term. The initial term of these Terms begins on the Effective Date and, unless terminated earlier pursuant to the express provisions of these Terms, will continue in effect for the period of time identified on a Purchase Order (the "Initial Term"). In the event there is no such time prescribed in the Purchase Order, the Initial Term shall default to one (1) year from the date of execution. These Terms will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to the express provisions of these Terms or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
(b) Termination. In addition to any other express termination right set forth in these Terms:
(i) Termination for Breach. Either Party may terminate an applicable Subscription Term upon any material breach of these Terms that is not cured within thirty (30) days or if the other Party becomes insolvent, bankrupt, or is dissolved. If Customer terminates for Company’s breach, Company will refund Customer the prorated amount of any prepaid unused fees for the Subscription Term. Company may terminate these Terms, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Company's delivery of written notice thereof; or
(ii) Return of Customer Data. Upon termination for any reason, Company shall return any Customer Data to Customer in a mutually agreed upon format. All Customer Data shall be deleted by Company within ninety (90) days of Termination or expiration of an applicable Subscription Term.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of an applicable Subscription Term Customer shall immediately discontinue use of the Company IP and, without limiting Customer's obligations under 9, Customer shall delete, destroy, or return all copies of the Company IP and certify in writing to the Company that the Company IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. This Section 14(d) and 4, 8, 9, 10, 11(b), 12, 13, and 15 survive any termination or expiration of an applicable Subscription Term. No other provisions of these Terms survive the expiration or earlier termination of an applicable Subscription Term.
15. Miscellaneous.
(a) Entire Agreement. These Terms, together with any applicable Purchase Order(s), the Privacy Policy, the Site, and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding any exhibits; (ii) second, the Purchase Order and (iii) third, any other documents incorporated herein by reference.
(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on an applicable Purchase Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(c) Force Majeure. In no event shall Company be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond Company's reasonable control, including but not limited to any pandemic or epidemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(d) Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the city of Wilmington, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms are binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(h) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
(i) US Government Rights. Each of the Documentation and the software components that constitute the Services is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 9 or, in the case of Customer, Section 5(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(k) Counterparts. These Terms may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
(l) Brand and Name Usage. Neither Party shall use the name and/or logo of the other Party in any news release, public announcement, advertisement or other form of publicity without the prior written consent of the other Party. Each Party, if agreed upon in writing by the other Party, is granted permission to use the other Party’s name and/or logo only as necessary to perform the obligations under these Terms. The Parties recognize the other Party’s exclusive ownership of such marks and names and that these marks and names are both renowned worldwide. Each Party agrees not to take any action inconsistent with such ownership and further agrees to take any action, including without limitation the conduct of legal proceedings at the other Party’s expense, which the other Party reasonably deems necessary to establish and preserve the other Party’s exclusive rights in and to its trademarks and trade names. Reproductions of any trademarks, logos, symbols, etc., shall be true photographic reproductions.
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