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TERMS AND CONDITIONS
USE OF ANSWR’S SOFTWARE AND SERVICES IS SUBJECT TO THESE TERMS AND CONDITIONS (THIS “AGREEMENT”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO ENTER INTO THIS AGREEMENT, THEN DO NOT DOWNLOAD ANY SOFTWARE OR OTHERWISE ACCESS OR USE THE ANSWR SERVICE. DOWNLOADING THE ANSWR SOFTWARE OR OTHERWISE ACCESSING OR USING ALL OR ANY PART OF THE ANSWR SERVICE WILL CONSTITUTE ACCEPTANCE OF THESE TERMS AND CONDITIONS AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS, WITHOUT MODIFICATION:
1. SERVICES AND SUPPORT
1.1 Subject to the terms and conditions of this Agreement, ANSWR will use commercially reasonable efforts to provide its knowledge discovery and curation service (the “Service”) on a hosted basis via the internet for the term of Customer’s purchased service subscription. As part of the registration process, Customer will identify a user name and password for Customer’s ANSWR account (“Account”). ANSWR reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the terms and conditions of this Agreement, ANSWR hereby grants Customer for the term of this Agreement a non-exclusive, non-transferable, limited right and license (without the right to sublicense) to download and install the ANSWR plug-in software (“Plugin”) for use solely in connection with Customer’s authorized use of the Service.
1.3 Customer acknowledges and agrees that the Service is subject to occasional downtime for scheduled or emergency maintenance or as a result of any third party services (including network and hosting services) being unavailable.
1.4 ANSWR will use commercially reasonable efforts to provide Customer with its standard customer support services via email in accordance with ANSWR’s then-current support policies.
1.5 ANSWR reserves the right, at its sole discretion, to modify this Agreement at any time. ANSWR will use reasonable efforts to notify Customer of any material change at least thirty (30) days in advance of the effective date of any such change by sending email to the email address associated with the Customer’s Account. Continued use of the Service following notice of any change to this Agreement constitutes Customer’s acceptance of those changes. This Agreement may not otherwise be amended, except by a written agreement executed by Customer and ANSWR.
1.6 Customer acknowledges and agrees that ANSWR may use Customer’s name and logo on ANSWR’s website and in its marketing materials solely to identify Customer in a list of representative clients of the Service. Customer agrees to participate, at ANSWR’s reasonable request, in the preparation of case studies, white papers and similar types of informational materials.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service, the Plugin or any software, documentation or data related to the Service (collectively with the Plugin, “Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Service or any Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service or any Software; use the Service or any Software for the benefit of a third party; or remove any proprietary notices. Customer shall not copy, frame or mirror any content forming part of the Service other than for its own internal business purposes and Customer shall not access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
2.2 Customer represents, covenants, and warrants that Customer will use the Service only in compliance with all applicable laws and regulations and will not post, upload, or otherwise deliver through the Service any data or other content (“Customer Content”) that is obscene, pornographic, threatening, harmful, or otherwise violates this Agreement. Customer hereby agrees to indemnify and hold harmless ANSWR against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Service. Although ANSWR has no obligation to monitor the content provided by Customer or Customer’s use of the Service, ANSWR may do so and may remove any such content or prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing. Customer shall (a) be responsible for compliance with this Agreement by any person or entity it allows to access the Service on its behalf, and (b) be solely responsible for the Customer Content (as defined below). Customer shall not (i) upload or otherwise transmit through the Service any material which violates or infringes in any way upon the rights of others, which is unlawful, which encourages conduct that would constitute a criminal offense, gives rise to civil or otherwise violates any law, (ii) use the Service to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (iii) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (iv) attempt to gain unauthorized access to the Service or their related systems or networks. Any conduct by Customer that in ANSWR’s discretion restricts or inhibits any other ANSWR customer from using or enjoying the Service is expressly prohibited. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify ANSWR promptly of any such unauthorized access or use.
2.3 Customer shall be responsible for obtaining and maintaining any equipment, telecommunications services and other infrastructure needed to connect to, access or otherwise use the Service. Customer shall also be responsible for (i) maintaining the security of such infrastructure and of its Account and passwords, and (ii) all activity occurring under its Account.
2.4 Customer may not remove or export from the United States or allow the export or re-export of the Software, Service or anything related thereto in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
3. CUSTOMER CONTENT
3.2 Customer represents and warrants that it has the right to provide the Customer Content to ANSWR for the purposes set forth under this Agreement. If ANSWR receives any notice or claim that any Customer Content, or activities hereunder with respect to any Customer Content, may infringe or violate rights of a third party (a “Claim”), ANSWR may (but is not required to) suspend activity hereunder with respect to that Customer Content and Customer will indemnify ANSWR from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
3.3 ANSWR will use reasonable efforts to safeguard Customer Content from unauthorized use or disclosure while it is under ANSWR’s control. However, ANSWR cannot guarantee the security of any Customer Content and cannot ensure that the Service and any telecommunication or computer systems used by or in connection with the Service will be completely secure.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Except as expressly set forth herein, ANSWR alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to ANSWR. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 Customer represents and warrants that Customer owns or otherwise controls all rights to such Customer Content (or has the right to use such Customer Content in connection with the Service) and that use of the Customer Content by ANSWR will not infringe or violate the rights of any third party.
5. PAYMENT OF FEES
If Customer registers for a free trial of the Service, the Service will be free of charge for the duration of such free trial period (“Free Trial”). After the Free Trial ends, Customer may be offered the opportunity to continue using a free version of Service without full access to all Service features. If Customer elects to continue using the full-featured Service, Customer will be responsible for paying the applicable fees for the Service as set forth at the time of purchase (the “Fees”). ANSWR reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial prepaid term or then current prepaid renewal term, upon sixty (60) days prior notice to Customer (which may be sent by email). Customer will pay all service fees in advance, prior to the beginning applicable prepaid term or prepaid renewal term, or the Service may be suspended or terminated. Unless Customer cancels prior to the end of the prepaid service term, Customer will be charged for (and this Agreement will continue for the duration of) a subsequent service term equal in duration to the previous service term. Unpaid Fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Service other than U.S. taxes based on ANSWR’s net income.
6.1 Unless terminated earlier as provided below, this Agreement is for the duration of any applicable Free Trial period and, subject to payment of applicable Fees as set forth above, for the initial pre-paid service term as set forth at the time of purchase. After expiration of the initial pre-paid service term, this Agreement shall automatically renew for additional periods of the same duration unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
6.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Service up to and including the last day on which the Service is provided. Upon any termination, ANSWR may, but is not obligated to, delete archived data.
6.3 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, warranty disclaimers, and limitations of liability.
6.4 Upon Customer’s written request within thirty (30) days after any expiration or termination of this Agreement (provided such termination was not due to Customer’s material breach of this Agreement), ANSWR will deliver in a reasonable period of time a copy of any Customer Content in its possession as of the effective date of termination. ANSWR will not be required to reformat or otherwise modify such Customer Content prior to delivery to Customer.
7. LIMITED WARRANTY AND DISCLAIMER
During the term of this agreement, ANSWR shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. However, the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by ANSWR or by third-party providers, or because of other causes beyond ANSWR’s reasonable control. ANSWR shall use commercially reasonable efforts to provide advance notice of any scheduled service disruption. HOWEVER, ANSWR DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS PROVIDED “AS IS” AND ANSWR DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ANSWR AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ANSWR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) FOR ANY MATTER BEYOND ANSWR’S REASONABLE CONTROL; OR (D) FOR ANY AGGREGATE DAMAGES THAT EXCEED THE FEES PAID BY CUSTOMER TO ANSWR FOR THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with ANSWR’s prior written consent. ANSWR may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind ANSWR in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of laws provisions. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled in the Commonwealth of Massachusetts, in English, in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in the Commonwealth of Massachusetts. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS: CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. CUSTOMER UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND ANSWR ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.