Customer Terms of Service
Last Modified: July 21, 2019
Welcome to Augmentir and thank you for using our Service. This Agreement constitutes a binding contract between Augmentir and You (collectively the “Parties”) and governs use of and access to the Service by You and End Users whether in connection with a paid or free subscription to the Services.
By accepting this Agreement, either by accessing or using the Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Augmentir that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer”, “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. Your continued use of the Services following the effective date of any such amendment will constitute Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
Please note that Augmentir doesn’t provide any warranties for the Services. This Agreement also limits our liability to you. For further details read below.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its End Users within the Service.
Additional Feature(s): means additional features or functionality (including, but not limited to Beta Programs, Pilot Services, or Marketplace Program) that are available or enabled through the Service, but do not form part of the Service. Additional Features are purchased or enabled separately and distinctly from Your Service Plan.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
API: means the application programming interfaces developed and enabled by Augmentir that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the API that enables the interaction with the Services automatically through HTTP requests.
Augmentir: means Augmentir, Inc., a Delaware corporation, or any of its successors or assignees.
Beta and Trial Services: means a product, service or functionality provided by Augmentir that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
Confidential Information: means all information disclosed by You to Augmentir or by Augmentir to You which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Augmentir’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Augmentir or its authorized subcontractors as indicated on an Order Form or other written document such as a SOW.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Augmentir to You in the applicable Augmentir help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
End-User: means any person or entity other than Subscriber of whom interacts with Service.
Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of End-Users authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Personnel: means employees and/or non-employee service providers and contractors of Augmentir engaged by the Augmentir in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service(s): means the Augmentir Platform and associated services (including the Augmentir Marketplace) that are ordered by You via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”) that are provided under this Agreement. “Services” exclude (i) Third Party Services as that term is defined in this Agreement; and (ii) any Additional Features or Associated Services that are not provided under this Agreement or Your Service Plan. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Data: means electronic data, procedural data, media, procedure execution data, communications or other materials submitted to and stored within the Service by You and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
Site: means a website operated by Augmentir, including www.augmentir.com, app.augmentir.com, as well as all other websites that Augmentir operates.
Software: means software provided by Augmentir (either by download or access through the Internet) that allows End-Users to use any functionality in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual End-User.
Supplemental Terms: means the additional terms and conditions that are (a) contained in Exhibit B to this Agreement entitled, “Supplemental Terms and Conditions”; (b) included or incorporated on an Order Form via hyperlink or other reference (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting Services when purchased by You; applicable to Additional Features when activated by You.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
“We,” “Us” or “Our”: means Augmentir as defined above.
2. ACCESS; USE; RESTRICTIONS
2.1 During the Subscription Term or applicable trial period and subject to compliance by You and End-Users with this Agreement, You have the limited right to access and use the Service, Documentation, and Associated Services consistent with the Service Plan(s) that You subscribe to solely for Your internal business purposes. An Affiliate may purchase a subscription to the Services under this Agreement provided that You or such Affiliate executes an Order Form for such Services. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber also agrees that it will be jointly and severally liable for its Affiliates’ compliance with this Agreement. You acknowledge and agree that Augmentir may reserves the right to modify the features and functionality of the Services during the Subscription Term.
2.2 You hereby grant Us a worldwide, non-exclusive, royalty-free, fully paid-up license to use, reproduce, perform, display, modify, and distribute the Service Data in connection with our provision of the Services to You.
2.3 We will (a) make the Services available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation and/or in accordance with your upgraded support terms, if You purchase such support; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack.
2.4 An Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Augmentir, including the Transport Layer Security (TLS) protocol or other protocols accepted by Augmentir, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Augmentir. We disclaim any and all responsibility for the reliability or performance of any connections as described in this section. You are solely responsible for maintaining the security of your computer system. Our transmission of the Services under this Agreement shall not constitute a representation or warranty by Us regarding the security of Your computer system, including, but not limited to, any representation or warranty regarding your computer system’s protection against intrusions, virus threats, or any other security threats.
2.5 As between You and Augmentir, You are responsible for compliance with the provisions of this Agreement by End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes and Augmentir shall have no liability with regard to the accuracy or sufficiency of the Services or the information generated by the Services. Subject to any limitation on the number of individual End-Users available under the applicable Service Plan(s) to which You subscribed or applicable Associated Service, access to and use of the Services is restricted to the specified number of individual End-Users permitted under Your subscription to the applicable Service. You agree and acknowledge that each End-User will be identified by a unique username and password (“Login”) and that an End-User Login may only be used by one (1) individual. You will not share an End-User Login among multiple individuals. You and Your End-Users are responsible for maintaining the confidentiality of all Login information for Your Account. Augmentir reserves the right to periodically verify that Your use of the Augmentir Services complies with the Agreement and the Service Plan restrictions on Our Site. Should Augmentir discover that Your use of a Augmentir Service is not in compliance with this Agreement or the Service Plan restrictions on Our Site, Augmentir reserves the right to charge You, and You hereby agree to pay for, said usage. Augmentir may seek any other remedies available to Us.
2.6 You may not use the Services to provide outsourced business process services, on behalf of more than one (1) third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Augmentir from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You.
2.7 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Augmentir, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Augmentir; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (n) attempt to use, or use the Services in violation of this Agreement. Sharing screenshots, downloads, or other forms of copying, duplicating, or replicating the Services, Documentation, or other related services publicly, or otherwise outside of Your organization, is strictly prohibited.
2.8 You may not access or use the Services, Documentation, or related services if You, or the organization in which you represent, are a competitor of Augmentir. You may not access the Services for competitive purposes.
2.9 In addition to Our rights as set forth in this Agreement, We reserve the right, in Our discretion, to temporarily suspend Your access to and use of a Service if We determine that (i) malicious software is connected to Your Account; (ii) there is a threat or attack on any of the Services; (iii) Your (or an End-User’s) use of the Services disrupts or poses a security risk to the Services or any other of Our customers or vendors; (iv) You (or any End-User) is/are using the Services for fraudulent or illegal activities; (v) subject to applicable law, You have ceased to continue Your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (vi) Our provision of the Services is prohibited by applicable law or (vii) You breach the terms of this Agreement.
3. TRIAL; BETA
3.1 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion. ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD. You acknowledge and agree that We will have no liability for any harm, damage, or liability arising out of or in connection with a trial Service.
3.2 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Third Party Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. You acknowledge and agree that We will have no liability for any harm, damage, or liability arising out of or in connection with a Beta Service.
4.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information at least as restrictive as this Agreement; or (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. If a Party is required to disclose Confidential Information under (b) or (c) of this Section, it will give the disclosing Party prompt notice of such requirement so that the disclosing Party may seek a protective order or other appropriate remedy concerning such disclosure. The provisions of this Section 4.1 shall supersede any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect.
6. DATA; INTELLECTUAL PROPERTY RIGHTS
6.1 When You use Our Services in accordance with the Documentation, the Services may generate data, including analytics, instructions, and suggestions, based on Your Service Data for You to use in addressing and improving the quality and productivity of Your workforce (“Subscriber Output”). Service Data and Subscriber Output is and shall be the property of Subscriber.
6.2 Whenever You or End-Users interact with Our Services, We reserve the right to collect and record usage data, including but not limited to, that information related to the length of time that procedural steps take, the number of procedures executed, the specific features of the Service utilized by User and the types and frequency of errors that occur (“Usage Data”). When We collect Usage Data, We only do so in aggregate form, and not in a manner that would identify End-Users personally. We also anonymize Subscriber Output (Usage Data and anonymized Subscriber Output collectively “Aggregated Data”). We generate Aggregated Data to assess and improve the use, functionality, and provision of the Services. Aggregated Data is and shall be the sole and exclusive property of Augmentir and Augmentir may use such Aggregated Data for any and all purposes in its sole discretion.
6.3 Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Augmentir and belong exclusively to Augmentir. No license or right is granted by estoppel, implication or otherwise and all rights not expressly granted are reserved by Augmentir.
6.4 Ours and Your trademarks, trade names, service marks, and logos, whether or not registered (“Marks”), are the sole and exclusive property of the respective owning party, which owns all right, title, and interest therein. Neither Party grants to the other any right, title, or interest in any Marks.
6.5 Any suggestions, enhancement requests, recommendations or other feedback We receive from You, End-Users, or other third parties acting on Your behalf (collectively, “Feedback”) is and shall be the sole and exclusive property of Augmentir. Augmentir may use, modify, and exploit such Feedback for any and all purposes. To the extent Subscriber owns any rights in the Feedback, Subscriber hereby agrees to, and hereby does, assign all right, title and interest in and to the Feedback to Augmentir. Subscriber agrees to perform all acts reasonably requested by Augmentir to perfect and enforce such rights.
7. BILLING; PLAN MODIFICATIONS; PAYMENTS
7.1 Unless otherwise indicated on an Order Form or SOW referencing this Agreement or in this Agreement or the Supplemental Terms, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within thirty (30) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and End-Users without further notice.
7.2 If You choose to increase the number of End-Users authorized to access and use a Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be billed on a monthly basis over the remaining period of Your then current Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
7.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Augmentir explicitly disclaims any liability for such loss.
7.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Augmentir measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7.5 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
7.6 Payments made by credit card, debit card or certain other payment instruments for the Augmentir Service are billed and processed by Augmentir’s Payment Agent. To the extent the Payment Agent is not Augmentir, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Augmentir and shall not be construed to be providing the applicable Service.
7.7 If You mandate Augmentir use a vendor payment portal or compliance portal which charges Augmentir a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by Augmentir for, and You are obligated to pay, the cost of this fee.
8. CANCELLATION AND TERMINATION
8.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.
8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
8.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 8.4 and 8.5, in addition to other amounts You may owe Augmentir, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.
8.4 We reserve the right to restrict functionality, suspend or terminate the Services (or any part thereof), Your Account or Your End-Users’ rights to access and use the Services, and remove, disable and quarantine any Service Data if We believe that You or End-Users have violated this Agreement, including Section 2.9. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You or End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You or End-Users may be referred to law enforcement authorities at Our sole discretion.
8.5 A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
9.1 Each Party represents that (a) it has full power and authority, and has obtained all approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; (c) the execution, delivery, and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment, or understanding to which it is a party or by which it may be bound; and (d) it will perform its obligations hereunder in accordance with all applicable laws.
9.2 You represent that You have all rights necessary to grant Us the rights to the Service Data as set forth herein, including all rights to ensure that our use of the Service Data will not infringe or violate any applicable laws or third party rights.
9.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL WE OR OUR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF AUGMENTIR), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUGMENTIR’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
10.3 Any claims or damages that You may have against Augmentir shall only be enforceable against Augmentir and not any other entity or its officers, directors, representatives or agents.
11.1 You agree to defend, indemnify, release, and hold Us harmless, as well as our shareholders, officers, directors, agents, representatives, employees, and third-party licensors from any and all claims, liabilities, losses, expenses, or demands, including reasonable legal fees, based on, arising from, or otherwise related to (i) any Service Data; (ii) use of a Service by You or End-Users in breach of this Agreement; or (iii) any claim that your Service Data infringes or misappropriates any intellectual property rights of a third party.
12.1 ASSIGNMENT. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement at any time for any reason. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
12.2 ENTIRE AGREEMENT. This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Augmentir with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein. We will notify You of applicable Supplemental Terms prior to Your activation of any Additional Features. The activation of any Additional Features by You in Your Account will be considered acceptance of the applicable Supplemental Terms.
12.3 SEVERABILITY AND WAIVER. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
12.4 EXPORT COMPLIANCE AND USE RESTRICTIONS. The Services and other Software or components of the Services that We may provide or make available to You or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You and End-Users are located.
12.5 RELATIONSHIP OF THE PARTIES. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.6 NOTICE. All notices provided by Augmentir to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Augmentir in writing by Courier or U.S. mail to 425 Caredean Dr, Horsham, PA 19044 U.S.A. Attn: Augmentir Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
12.7 GOVERNING LAW. This Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Kent County, Delaware. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You or End Users.
12.8 FEDERAL GOVERNMENT END USE PROVISIONS. If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
12.9 ANTI-CORRUPTION. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at email@example.com.
12.10 AMENDMENTS; MODIFICATIONS. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
12.11 NO THIRD PARTY BENEFICIARIES. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.12 SURVIVAL. Sections 1, 4, 6, 9.3, 10, 11, and 12 shall survive any termination of our agreement with respect to use of the Services by You or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
SUPPLEMENTAL TERMS AND CONDITIONS
1. SERVICE LEVEL AGREEMENT (SLA)
If we do not achieve and maintain the Service Levels for each Service as described in this SLA, then you may be eligible for a credit towards a portion of your annual or monthly service fees. We will not modify the terms of your SLA during the initial term of your subscription; however, if you renew your subscription, the version of this SLA that is current at the time of renewal will apply throughout your renewal term. We will provide at least 90 days’ notice for adverse material changes to this SLA.
1.1 SLA GENERAL TERMS
In order for Augmentir to consider a claim, you must submit the claim to customer support at Augmentir, Inc including all information necessary for Augmentir to validate the claim, including but not limited to: (i) a detailed description of the Incident; (ii) information regarding the time and duration of the Downtime; (iii) the number and location(s) of affected users (if applicable); and (iv) descriptions of your attempts to resolve the Incident at the time of occurrence.
For a claim to be recognized, we must receive the claim within two months of time in which the Incident that is the subject of the claim occurred.
We will evaluate all information reasonably available to us and make a good faith determination of whether a Service Credit is owed. We will use commercially reasonable efforts to process claims during the subsequent month and within forty-five (45) days of receipt. You must be in compliance with the Augmentir Terms of Service Agreement (the Agreement) in order to be eligible for a Service Credit. If we determine that a Service Credit is owed to you, we will apply the Service Credit to your Applicable Service Fees.
1.1.2 Service Credits
Service Credits are your sole and exclusive remedy for any performance or availability issues for any Service under the Agreement and this SLA. You may not unilaterally offset your Applicable Service Fees for any performance or availability issues.
Service Credits apply only to fees paid for the particular Service, Service Resource, or Service tier for which a Service Level has not been met. In cases where Service Levels apply to individual Service Resources or to separate Service tiers, Service Credits apply only to fees paid for the affected Service Resource or Service tier, as applicable. The Service Credits awarded in any billing period for a particular Service or Service Resource will not, under any circumstance, exceed your total service fees for that Service or Service Resource, as applicable, in the billing period. If you purchased add-on Services as part of a suite or other single offer during a billing period, the Service Fees and Service Credit for the add-on Service will be pro-rated.
If you purchased a Service from a reseller, you will receive a service credit directly from your reseller and the reseller will receive a Service Credit directly from us. The Service Credit will be based on the estimated retail price for the applicable Service, as determined by us in our reasonable discretion.
This SLA and any applicable Service Levels do not apply to any performance or availability issues:
- Due to factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at your site or between your site and our data center);
- That result from the use of services, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
- That results from failures in a single Datacenter location, when your network connectivity is explicitly dependent on that location in a non-geo-resilient manner;
- Caused by your use of a Service after we advised you to modify your use of the Service, if you did not modify your use as advised;
- During or with respect to preview, pre-release, beta or trial versions of a Service, feature or software (as determined by us) or to purchases made using subscription credits;
- That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
- That result from your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
- That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
- That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behavior;
- Due to your use of Service features that are outside of associated Support Windows; or
- For licenses reserved, but not paid for, at the time of the Incident.
1.2 Service Specific Terms
1.2.1 Augmented Operations Platform
Downtime: Any period of time when end users are unable to login to their instance or perform supported activities.
Monthly Uptime Percentage: The Monthly Uptime Percentage is calculated using the following formula:
User Minutes -Downtime User Minutes x 100
where Downtime is measured in user-minutes; that is, for each month, Downtime is the sum of the length (in minutes) of each Incident that occurs during that month multiplied by the number of users impacted by that Incident and User Minutes means the total number of minutes in a month, less all Scheduled Downtime, multiplied by the total number of users. For annual subscriptions, Monthly Service Credits will be applied to 1/12 the annual subscription fee.
|Monthly Uptime Percentage||Monthly Service Credit|
2. CONSULTING SERVICES
If Subscriber has engaged Augmentir for the provision of professional services (including any training, success, and implementation services, “Consulting Services”) as indicated on an Order Form, or other written document such as a Statement of Work, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Augmentir, intending to be legally bound, agree to the terms set forth below.
2.1 Scope. All Consulting Services pursuant to the Agreement provided by Augmentir to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.
2.2 Retention. Subscriber hereby retains Augmentir to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Augmentir shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
2.3 Performance of Consulting Services.
2.3.1 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees charged and the Consulting Services provided. Augmentir and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
2.3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Augmentir’s Representative”, respectively). Any Subcontractor (defined below) designated by Augmentir to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Augmentir on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).
2.3.3 Augmentir will perform the Consulting Services through qualified employees and/or non-employee contractors of Augmentir (“Subcontractors” and together with Augmentir’s employees for the purposes of these Supplemental Terms, “Consulting Services Personnel”). Subscriber agrees to provide, at no cost to Augmentir, timely and adequate assistance and other resources reasonably requested by Augmentir to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Augmentir, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
2.3.4 In performing the Consulting Services, Augmentir will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Augmentir’s election of Subcontractors by specifying its objection to Augmentir, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Augmentir may replace Consulting Services Personnel in its normal course of business, provided that Augmentir will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
2.3.5 Augmentir will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Augmentir will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Augmentir’s obligations under the Agreement in accordance with its terms.
2.3.6 With Subscriber’s approval, Augmentir may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services.
2.3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Augmentir. If Augmentir elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Augmentir shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Augmentir shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon and have duly executed a written Change Order.
2.3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Augmentir shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Augmentir with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are time and materials based.
2.4 Consulting Fees; Payment Terms.
2.4.1 Subscriber will pay Augmentir the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Consulting Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Augmentir shall invoice Subscriber for the Consulting Services provided on a monthly basis. All Consulting Fees are due and payable upon date of invoice, except for Consulting Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.
2.4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Augmentir will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Augmentir will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate once such T&M Estimate is duly executed by both Parties. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order. Augmentir shall have no obligation to perform any additional work beyond the original T&M Estimate unless and until such amended T&M Estimate is executed by the Parties.
2.4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Consulting Fees which become payable by Subscriber. Augmentir may refuse to perform Consulting Services unless and until such retainer is paid to Augmentir.
2.4.4 In addition to any and all Consulting Fees, Subscriber will reimburse Augmentir for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change Consulting Fees to travel and accommodations resulting from Subscriber’s request incurred by Augmentir in connection with providing the Consulting Services (“Expenses”). Augmentir will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Augmentir for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Augmentir.
2.4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
2.4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).
2.5 Relationship of the Parties. Augmentir is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Augmentir at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to Augmentir hereunder shall not be considered salary for pension or wage tax purposes and neither Augmentir nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
2.6.1 Augmentir hereby represents and warrants that: the Consulting Services provided pursuant to the Agreement will be performed in a professional and workmanlike manner by Augmentir and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy, and Augmentir’s sole and exclusive obligation, for any breach of this warranty will be, at Augmentir’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Augmentir by Subscriber for the nonconforming portion of the Consulting Services; and it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
2.6.2 The Parties hereby agree that: EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE AUGMENTIR SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND “WITH ALL FAULTS” AND AUGMENTIR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. AUGMENTIR SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY AUGMENTIR. AUGMENTIR DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. AUGMENTIR EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, AUGMENTIR EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY AUGMENTIR OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.
2.7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Augmentir all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Augmentir a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Augmentir shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Augmentir receives from Subscriber. Subscriber shall undertake all acts reasonably requested by Augmentir to perfect and enforce such rights.
2.7.2 Without limiting the foregoing, Augmentir and its licensors reserve and retain ownership of all Pre-existing Technology, Developed Technology and Generic Components (each as defined below), and Augmentir hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s), solely while Subscriber is subscribed to the Services. “Pre-existing Technology” means all of Augmentir’s inventions (including those of Augmentir’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Augmentir and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Augmentir’s Pre-existing Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Augmentir and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Augmentir’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information.