Terms and Conditions
These Customer Terms and Conditions (this “Agreement”), effective as of the date on which you access, install or use any Offerings, click a button or check a box (or something similar) acknowledging your acceptance of this Agreement, or execute with Edvise Inc. (“Endex”) an order form (an “Order Form”) that incorporates this Agreement by reference (such date, the “Effective Date”), is by and between Endex and the person or entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). Endex and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”
An individual may access and use the Offerings on behalf of a company or other entity, such as that individual’s employer (such entity, an “Organization”). In such cases, notwithstanding anything to the contrary herein: (a) this Agreement is an agreement between (i) Endex and such individual and (ii) Endex and that Organization; (b) “Customer” and “you,” as used in this Agreement in the context of a license grant, assignment, restriction, obligation, acknowledgment, representation, warranty, or covenant, or in any similar context, mean (i) such individual and (ii) the Organization, on behalf of the Organization and its subsidiaries and affiliates, and its and their respective directors, officers, employees, contractors, agents, and other representatives who access and/or use the Offerings (collectively, “Org Users”); (c) such individual represents and warrants to having the authority to bind that Organization to the terms of this Agreement (and, in the absence of such authority, such individual may not access, nor use, the Offerings); (d) such individual’s acceptance of this Agreement will bind that Organization to this Agreement; (e) Endex may disclose information regarding such individual and such individual’s access to and use of the Offerings to that Organization; (f) such individual’s right to access and use the Offerings may be suspended or terminated (and the administration of the applicable use account may be transferred) if such individual ceases to be associated with, or ceases to use an email address associated with or provisioned by, that Organization; (g) that Organization will make all Org Users aware of this Agreement’s provisions, as applicable to such Org Users, and will cause each Org User to comply with such provisions; and (h) that Organization will be solely responsible and liable for all acts and omissions of the Org Users, and any act or omission by any Org User that would constitute a breach of this Agreement had it been taken by that Organization will be deemed a breach of this Agreement by that Organization. Without limiting the generality of the foregoing, if an individual opens a user account using an email address associated with or provisioned by an Organization, or if an Organization pays fees due in connection with such individual’s access to or use of the Platform (or reimburses such individual for payment of such fees), then Endex may, in its sole discretion, deem such individual to be accessing and using the Offerings on behalf of that Organization.
1. Definitions.
1.1 “Applicable Laws” means all existing and future federal, state, provincial, regional, territorial and local laws, international treaties, statutes, statutory instruments, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other office releases, guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof (including all federal and state banking laws, regulations, guidance, and policies), or any court of competent jurisdiction that are applicable to the parties in their performance of their obligations or exercise of their rights under this Agreement.
1.2 “Customer Inputs” means data, algorithms, methodologies, software code, and other information Customer provides, posts, uploads, publishes, transmits or distributes on or through the Offerings.
1.3 “Customer Outputs” means data and other information generated by Customer that directly results from Customer’s use of, and is delivered to Customer through, the Offerings (excluding, for the avoidance of doubt, Usage Data).
1.4 “Fees” means the amounts payable by Customer to Endex pursuant to this Agreement (including an applicable Order Form).
1.5 “Marks” means trade names, trademarks, service marks, trade dress, logos and other rights in indicia.
1.6 “Offerings” means the Software and/or the Platform (as applicable).
1.7 “Platform” means Endex’s AI financial workflows platform in a virtual cloud environment.
1.8 “Software” means Endex’s financial workflows software tool.
1.9 “Subscription Term” means the subscription period identified in the Order Form.
2. Access and Use.
2.1 Provision of Access. During the Subscription Term and subject to the terms of this Agreement (including any usage limitations set forth in anOrder Form), Endex (a) will provide Customer access to and use of the Platform solely for Customer’s internal business use up to the number of employees or contractors of Customer identified onanOrder Form who Customer permits to use the Offerings (“Authorized Users”); and (b) hereby grants to Customer a limited, non-exclusive,non-transferable license, without the right to sublicense, to (i) install and use the Software solely for Customer’s internal use by the Authorized Users and (ii) use the product documentation provided by Endex in connection with the Offerings (the “Documentation”), in each case solely for Customer’s internal use in connection with Customer’s use of the Offerings.
2.2 Use Restrictions. Customer will not use the Offerings or Documentation for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly: (a) copy the Offerings or Documentation, in whole or in part; (b) use the Offerings or Documentation as a service bureau or otherwise for the benefit of a third party; (c) rent, frame, resell, lease, loan or otherwise in any manner provide or distribute the Offerings or any copy thereof to any third party; (d) misappropriate any data or information from the Offerings or Documentation; (e) disrupt the functioning of the Offerings; (f) act in a manner that interferes with Endex’s operation of the Offerings or use of the Offerings by others; (g) gain unauthorized access to the Offerings or Documentation for any other purpose or access or use the Offerings to circumvent or exceed usage limitations; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the Offerings, Documentation, or any security technology, software, or rights management information contained within the Offerings or in any software used to enable the Offerings; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within the Offerings or Documentation; (j) use or make the Offerings or Documentation available for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Offerings; (k) access or use the Offerings to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send any commercial solicitation or spam (whether commercial in nature or not); (l) exploit the Offerings in any unauthorized way whatsoever, including by trespass or burdening server or network capacity or infrastructure of the Offerings (including hacking, prompt injections, and other attempts to override artificial instructions, as well as transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or infrastructure);(m) share access or account logins with unauthorized users or otherwise attempt to circumvent any limitations on the number of Authorized Users permitted to use the Offerings;(n) use any content available on or via the Offerings (including any caption information, keywords, or other metadata) for any machine learning or artificial intelligence training or development purposes, or for any technologies designed or intended for the identification of natural persons; or (o) attempt, or encourage or assist any third party to do, any of the foregoing.
2.3 Usage Data. Endex may collect, maintain, process and use, or Customer may provide to Endex, diagnostic, technical, usage and related information, including telemetry data and information about Customer’s searches, user behavior, computers, systems and software (“Usage Data”). Customer agrees that all Usage Data is owned solely and exclusively by Endex, and Endex accordingly may use such Usage Data: (a) to provide and maintain the Offerings for Customer; (b) to develop and improve the Offerings; (c) to monitor Customer’s usage of the Offerings; (d)for research, analytics and other business purposes, in each case in deidentified, anonymized and/or aggregated form. The Offerings may contain technological measures designed to prevent unauthorized or illegal use of the Offerings. Customer acknowledges and agrees that Endex may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Endex’s rights, including all intellectual property rights, in and to the Offerings.
2.4 Reservation of Rights. Endex reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement 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 Offerings or Documentation.
2.5 Delivery. If Customer purchases a license to the Software, Endex will make available to Customer the Software electronically in a form and via a method determined by Endex that is reasonably acceptable to Customer (e.g., preinstalled on a virtual machine or container, in object code form, or another method). Customer acknowledges that Software, as used in this Agreement, does not include Third-Party Components and Open Source Components that may be delivered by Endex in combination with the Software.
2.6 Customer Responsibilities. Customer is responsible and liable for all uses of the Offerings and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including any Customer Inputs. 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 this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Offerings and Documentation and will cause Authorized Users to comply with such provisions.
2.7 Third-Party Materials; Open Source and Third Party Software. The Offerings may contain or be provided with certain third-party software modules and components that are subject to separate or additional terms and conditions, including Open Source Components as defined below (“Third-Party Components”). In addition, the Offerings may contain or be provided with certain software modules and components offered under the terms and conditions of “open source” software licenses (“Open Source Components”). Endex will provide Customer all notices and materials required for Endex’s compliance with the terms and conditions applicable to the Third-Party Components in the Documentation, within the Offerings, or through another method chosen by Endex in its reasonable discretion. With respect to any Open Source Components, all use of such Open Source Components by Customer is governed by, and subject to, the terms and conditions of the open source software license applicable to the Open Source Component and not this Agreement. With respect to any Third-Party Components that are not Open Source Components, to the extent any separate or additional terms and conditions apply, Endex will provide such terms and conditions to Customer and Customer’s use of such Third-Party Components is subject to such terms and conditions.
2.8 Suspension or Termination of Access to Offerings. Endex may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Offerings, without incurring any resulting obligation or liability, if: (a) Endex receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Endex to do so; or (b) Endex believes, in its reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Offerings beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Agreement (including the restrictions in Section 2.2); (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Endex’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. Ownership and Data Rights.
3.1 Ownership. As between Endex and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Inputs and Customer Outputs; and (b) Endex owns all right, title and interest in and to the Offerings (and any enhancements and improvements developed, created, or otherwise made thereto), Documentation, and Usage Data, including all intellectual property and other proprietary rights therein and thereto.
3.2 Rights to Customer Inputs. Customer hereby grants to Endex during the Subscription Term a fully paid-up, royalty-free, worldwide, nonexclusive right and license, to use the Customer Inputs as necessary to perform its obligations under this Agreement (including providing the features and functionality of the Offerings to Customer) and for such other purposes as expressly set forth hereunder; subject to the obligations and restrictions set forth in Section 3.4 below.
3.3 Customer Obligations. As between Endex and Customer, Customer is solely responsible for all Customer Inputs and represents and warrants that Customer has all rights, licenses, and permissions required to provide Customer Inputs to the Offerings. Customer is solely responsible for all use of Customer Outputs and evaluating Customer Outputs for accuracy and appropriateness for their intended use case, including by utilizing human review as appropriate.
3.4 Customer Outputs. DUE TO THE NATURE OF MACHINE LEARNING, CUSTOMER OUTPUTS MAY NOT BE UNIQUE ACROSS USERS AND THE OFFERINGS MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USE OF THE OFFERINGS MAY RESULT IN INCORRECT CUSTOMER OUTPUTS THAT DO NOT ACCURATELY REFLECT REALITY. CUSTOMER MUST EVALUATE THE ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S USE CASE, INCLUDING BY USING HUMAN REVIEW. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER OUTPUTS MAY CONTAIN “HALLUCINATIONS” AND MAY BE INACCURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO CUSTOMER’S PURPOSES, AND CUSTOMER AGREES THAT ENDEX SHALL NOT BE LIABLE FOR ANY DAMAGES THAT CUSTOMER OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY CUSTOMER OUTPUTS OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE OFFERING.
3.5 Endex Obligations. Endex will only use Customer Inputs and Customer Outputs as necessary to provide Customer the Offerings, comply with Applicable Laws, and enforce Endex policies. Except as expressly permitted in writing by Customer or as otherwise set forth in this Agreement, Endex will not use Customer Inputs and Customer Outputs to train or enhance the machine learning models that Endex makes available to all of its customers.
3.6 Customization. To the extent Customer opts into custom tool features with respect to the Offerings, Endex may use Customer Inputs and Customer Outputs to train and enhance the applicable machine learning models to develop the custom tool for Customer (the “Custom Tool”). Endex will not share Customer’s Custom Tool will other Endex customers.
3.7 Shared Data. To the extent Customer opts into shared data features with respect to the Offerings, Endex may share designated Customer Inputs with other Endex customers who contribute to the applicable shared data pool (each a “Shared Data Pool”). Customer acknowledges and agrees that other Endex customers with access to Shared Data Pools may use the Shared Data Pools in connection with their use of Endex’s products services, including to develop their own custom tools.
3.8 Feedback. Customer may choose to or Endex may invite Customer to submit comments or ideas about Endex’s products and services, including the Offerings and Documentation (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Endex under any fiduciary or other obligation, and that Endex is free to use the Feedback without any additional compensation to Customer or anyone else, or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, Endex does not waive any rights to use similar or related ideas previously known to Endex, or developed by its employees, or obtained from sources other than Customer.
4. Fees; Payment.
4.1 Fees. Customer shall pay the Fees set forth in the applicable Order Form in accordance with the payment terms set forth therein.Fees are non-refundable unless otherwise set forth in this Agreement (including the applicable Order Form) or mutually agreed in writing by the Parties. All amounts payable to Endex under this Agreement shall be paid by Customer to Endex in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Applicable Laws).
4.2 Late Payments. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold Endex harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder. If such failure to pay continues for ten (10) days following written notice thereof, Endex may: (a) withhold, suspend or revoke its grants of rights hereunder; or (b) terminate this Agreement underSection 7.2.
4.3 Taxes. Customer will be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on Endex’s net income. If Endex has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.3, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Endex with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.4 Fee Increases. Endex may, in its sole discretion, increase or otherwise modify the Fees each renewal period during the Subscription Term by providing Customer notice of changes to the Fees at least thirty (30) days prior to the end of the then-current initial or renewal subscription term. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.
5. Support. During the Subscription Term, Endex will use commercially reasonable efforts to provide Customer with basic customer support via Endex’s standard support channels during Endex’s normal business hours.
6. Professional Services. Endex will perform additional professional services as described in an Order Form (if any). Customer will provide Endex all reasonable cooperation required for Endex to perform such services, including without limitation timely access to any reasonably required Customer materials, information, or personnel. Subject to any limitations identified in an Order Form, Customer will reimburse Endex’s reasonable travel and lodging expenses incurred in providing such services. To the extent such services result in any software code or other work product of any kind (“Work Product”), all such Work Product will remain owned solely and exclusively by Endex and may be used by Customer solely in connection with Customer’s authorized use of the Platform under this Agreement.
7. Subscription Term and Termination.
7.1 Subscription Term; Non-Renewal. Unless earlier terminated in accordance with this Section 7, this Agreement and the rights granted hereunder shall be effective as of the Effective Date and shall continue through the initial subscription period set forth in anOrder Form (the “Initial Period”). After the Initial Period, the Agreement will automatically renew for additional periods equal to additional successive one (1) year periods (or such other duration as mutually agreed by the parties) (each, a “Renewal Period”) unless a party hereto provides the other written notice of its intention not to renew at least thirty (30) days prior to the end of the then-current term.
7.2 Termination for Cause. Either party hereto shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) ifthe other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; or (b) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.
7.3 Effect of Termination. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer will immediately terminate, and (b) Customer will: (i) immediately cease all use of and other activities with respect to the affected Offerings and Documentation; (ii) within five (5) days, return to Endex or, upon Endex’s request, destroy, and permanently erase from all devices and systems Customer directly or indirectly controls, the Offerings and Documentation and, at Endex’s request, Endex’s Confidential Information and materials containing any Confidential Information of Endex; and (iii) deliver to Endex a certification, in writing signed by a duly authorized representative of Customer, that the Confidential Information and all copies thereof have been returned or destroyed, and their use discontinued; provided, however, that neither Customer nor any of its representatives shall be obligated to return or destroy Confidential Information to the extent it has been electronically archived by any such party in accordance with its automated security or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination; and (c) all amounts payable by Customer to Endex of any kind are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement.
7.4 Survival. Sections 1, 2.2, 2.3, 2.4, 2.6, 2.7, 3, 4, 7.3, 7.4, 8 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 9.4, 10.1 (solely with respect to claims arising during the Subscription Term), 10.2, 10.3, 10.4, 10.5, 10.6, 11, and 13 shall survive termination of this Agreement.
8. Confidentiality.
8.1 Confidential Information; Nonuse and Nondisclosure. Each party, as a receiving party, agrees to retain in confidence the non-public information and know-how disclosed to it pursuant to this Agreement which is either designated in writing as proprietary or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, the Offerings, the Documentation, the Usage Data, and the terms of this Agreement shall be Endex’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information, using at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to promptly notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known without breach of this Agreement; (ii) discovered, created or independently developed by the receiving party without use of, reliance upon, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and commercially reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
8.2 Remedy. Each party agrees and acknowledges that any breach or threatened breach of this Section 8 may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
9. Representations and Warranties.
9.1 Performance Warranty; Sole and Exclusive Remedy. Subject to the limitations and conditions set forth In Section 9.2, Endex hereby represents and warrants to Customer that, during the Subscription Term, the functionality of the Offerings will not be materially decreased from the functionality of the Offerings available as of the Effective Date, when installed, operated and used as recommended in the Documentation applicable to the particular Offerings and in accordance with this Agreement (the “Performance Warranty”). Customer’s sole and exclusive remedy for Endex’s breach of its Performance Warranty will be for Customer to submit a support request and for Endex to respond to and resolve such request. The limited warranty set forth in this Section 9.1 will apply only if Customer, as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing). THE FOREGOING WARRANTY DOES NOT APPLY, AND ENDEX STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY AND ALL THIRD-PARTY COMPONENTS PROVIDED WITH OR INCORPORATED INTO THE OFFERINGS.
9.2 Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 9.1 does not apply to problems arising out of or relating to: (a) Offerings that is modified or damaged by Customer or its representatives; (b) any operation or use of, or other activity relating to, the Offerings other than as specified in the Documentation applicable to the particular Offerings, including any incorporation in the Offerings of, or combination, operation or use of the Offerings in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation applicable to the particular Offerings; (c) Customer’s failure to promptly install all maintenance releases that Endex has previously made available to Customer (provided that Endex will continue to provide support with respect to the Offerings released twelve (12) calendar months immediately prior to the then-most-current release of the Offerings); (d) the operation of, or access to, Customer’s or a third-party’s system or network; (e) any beta software, software that Endex makes available for testing or demonstration purposes, temporary software modules, or software for which Endex does not receive a fee; (f) Customer’s breach of any provision of this Agreement; or (g) a Force Majeure Event.
9.3 Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the Offerings and Documentation will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, provide, receive, access or use its Customer Inputs, including any personal information therein, and any other content it provides, receives, accesses or uses through or in connection with the Offerings or Documentation; (c) it is solely responsible for clearing all rights and paying all fees and other costs and expenses arising in connection with the Customer Inputs; and (d) the Customer Inputs and Endex’s use or distribution thereof as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including any intellectual property right or privacy right, (ii) any liability from Endex to any third party, or (iii) the payment by Endex of any fees to any third party.
9.4 Warranty Disclaimer.
(a) General Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT: (A) ENDEX, ON BEHALF OF ITSELF AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; AND (B) THE OFFERINGS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ENDEX AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO THE OFFERINGS.
(b) Results of Use of the Offerings. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND ENDEX’S PROVISION OF, THE OFFERINGS MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE OFFERINGS IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS FINANCIAL, PROFESSIONAL, OR ANY OTHER ADVICE. ACCORDINGLY, ENDEX HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES ENDEX FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART ON ANY INFORMATION PROVIDED VIA THE OFFERINGS.
10. Indemnification.
10.1 Endex Indemnity. Endex shall defend or settle, at its own option and expense, any suit, claim, action, or proceeding brought against Customer by a third party to the extent based upon a claim that the Offerings infringe any copyright or trademark or misappropriates any trade secret of such third party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim (provided that Endex may not enter into any settlement or dispose of any claim in a manner that requires Customer to admit any liability or that places any material obligation on Customer without its prior written consent, not to be unreasonably withheld, conditioned, or delayed).
10.2 Endex Options. Should any of the Offerings become, or in the opinion of Endex be likely to become, the subject of such an infringement claim, Endex may, at its option: (a) procure for Customer the right to use such Offerings at no cost to Customer; (b) replace or modify, in whole or in part, the Offerings to make it non-infringing; or (c) if neither (a) nor (b) are, in Endex’s sole and absolute discretion, commercially practicable, accept return of the Offerings, or remove the allegedly offending module thereof, and, refund the Fees paid for such Offerings or module by Customer, less an amount determined by multiplying the Fees paid for such Offerings or such module during the then-current Subscription Term by a fraction, the numerator of which is the number of months during the then-current Subscription Term during which Customer had use of the Offerings and the denominator of which is the total number of months during the then-current Subscription Term.
10.3 Exclusions from Endex Indemnity. Endex assumes no liability under this Section 10 for: (a) Third-Party Components or Open Source Components; (b) any Customer method or process in which the Offerings may be used; (c) any compliance with Customer’s specifications; (d) modification of the Offerings other than: (i) by Endex in connection with this Agreement or (ii) with Endex’s express written authorization and in strict accordance with Endex’s written specifications; (e) the combination, operation or use of the Offerings with non-Endex technology, service or data; (f) use of any version of the Offerings other than the most current version or failure to timely implement any maintenance release, modification, update or replacement of the Offerings made available to Customer by Endex; (g) use of the Offerings after Endex’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third-party’s rights and provision of a non-infringing alternative; (h) negligence, abuse, misapplication, or misuse of the Offerings or Documentation by or on behalf of Customer, Customer’s representatives, or a third-party; (i) use of the Offerings or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement; or (j) claims for which Customer is obligated to indemnify Endex pursuant to Section 10.4, and Customer shall indemnify and hold harmless Endex and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (j) (inclusive) above.
10.4 Customer Indemnification. Customer shall defend, indemnify, and hold harmless Endex and its officers, directors, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from or relating to: (a) Customer Inputs; or (b) Customer’s or its Authorized Users’: (i) use of and access to the Offerings in a manner inconsistent with this Agreement and Documentation; (ii) breach of Section 2.2 or 8; or (iii) Customer’s negligence or willful misconduct.
10.5 Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
10.6 Sole Remedy for Infringement. THIS SECTION 10 SETS FORTH ENDEX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE OFFERINGS AND THIS AGREEMENT.
11. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER TO ENDEX HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
12. Compliance with Laws. Each party will comply with all Applicable Laws.
13. Miscellaneous.
13.1 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 Endex. 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. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
13.2 Delays. In the event that either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section 13.2 (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
13.3 Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the laws of the New York without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within New York, New York. The parties hereby consent to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after thirty (30) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by the American Arbitration Association (“AAA”), under the Expedited Procedures then in effect for AAA, except as provided herein. The arbitration will be conducted in New York, New York, unless otherwise agreed. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 13.3 shall be deemed as preventing either party from seeking injunctive, equitable or other relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.
13.4 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
13.5 Publicity. Customer hereby grants to Endex during the Subscription Term and for six (6) months following the expiration or termination of the Subscription Term, a non-exclusive, royalty-free, non-sublicensable license to use Customer’s Marks in Endex’s advertising, literature and websites for the purpose of identifying Customer as a current or former Endex client or affiliate. This license shall include the right to use quotes from Customer’s Authorized Users regarding their satisfaction with Endex or the Offerings.
13.6 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to Endex must be sent to team@endex.ai.
13.7 U.S. Government Restricted Rights. If the Offerings are being used by the U.S. Government, the software underlying the Offerings is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
13.8 Export Law Assurances. Customer understands that the Offerings are or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE OFFERINGS OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE OFFERINGS OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
13.9 Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.
13.10 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
13.11 Entire Agreement; Waiver; Severability. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
13.12 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (i) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (ii) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. All references to “$” or “dollars” mean the lawful currency of the United States of America. Whenever the masculine is used in this Agreement, the same shall include the feminine and whenever the feminine is used herein, the same shall include the masculine, where appropriate. Whenever the singular is used in this Agreement, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate.
13.13 Amendment and Modification. Endex may change this Agreement (except for any Order Forms) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Endex will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Platform or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Offerings after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Period or, if Customer enters into a new Order Form with Endex, as of the date of execution of such Order Form.