PLEASE READ THESE
TERMS OF SERVICE CAREFULLY. CUSTOMER AGREES TO THESE TERMS AND CONDITIONS BY
(A) CLICKING TO ACCEPT OR AGREE WHERE SUCH OPTION IS MADE AVAILABLE TO
CUSTOMER, OR (B) ACTUALLY USING OR ACCESSING THE SERVICE AND SITE (THE
These Terms of
Service constitute an agreement (the “Agreement”) by and between AGNES
Intelligence, Inc. ("AGNES") and the corporation, LLC, partnership,
sole proprietorship, other business entity, or individual (“Customer”) agreeing
to this Agreement. This Agreement is effective as of the Effective Date.
Customer’s use of and AGNES’s provision of the Service (as defined below in
Section 1) are governed by this Agreement.
The following capitalized terms will have the following meanings whenever used
in this Agreement:
a. “Aggregated Statistics” means data, metadata, and information related to
Customer’s use of the Service, excluding Hosted Data, that is used by AGNES in
an aggregate and anonymized manner, including to compile statistical and performance
information related to the provision and operation of the Service.
b. “Documentation” means AGNES’s standard information related to use of the
System, which can be found at www.agnesintel.com.
c. “Feedback” means any suggestion or idea for improving or otherwise modifying
any of AGNES’s products or services.
d. “Hosted Data” means all information, data and materials uploaded, created,
modified, stored in the Service by Customer or Customer’s Users, including,
without limitation, all uploaded & created data post de-duplication and
de-nisting, including the extracted native files, the extracted or OCR’d text
files, the rendered PDF files, and zipped downloads. By way of example, a 1GB
(gigabyte) PST uploaded may extract to 2GB of extracted and created data, but
50% of the data may be duplicate. In this example, the total data size consumed
is 1GB, not 2GB, because of the duplicate data detected.
f. “Service” means the hosted eDiscovery and document management solution for
online storage, sharing and processing of files, documents, materials, images,
videos, or other content, including all updates, modifications, and
enhancements thereto, as made generally available by AGNES.
h. “Users” means any individual who uses the Service on Customer’s behalf or
through Customer’s account or passwords, whether authorized or not.
2. ACCESS AND USE OF THE SERVICE.
of Access. Subject to and conditioned on Customer’s payment of fees
and compliance with all the terms and conditions of this Agreement, Provider
hereby grants Customer a non-exclusive, non-transferable right to access and
use the Service during the Term, solely for use by Users in accordance with the
terms and conditions herein. Such use is limited to Customer’s internal use. AGNES
shall provide to Customer the necessary passwords and network links or connections
to allow Customer to access the Service. A Users access to and use of the
Service signifies their acceptance of AGNES’s service terms and obligations as
detailed in this Agreement. Customer will ensure its Users comply with the
terms of this Agreement. Customer will be liable for all acts and omissions of
its Users, including but not limited to any fees or expenses incurred through a
Users’ use and access to the Service.
b. Documentation. Customer may access, reproduce, and
use the Documentation solely as necessary to support Users’ use of the Service.
c. Customization. Customer
may request features or functionality not already offered through the Service.
If AGNES determines that such requests are feasible, AGNES may choose to
provide those features or functionalities to Customer for an additional fee.
The terms and conditions of such fees and customization will be detailed via a
separate written statement of work (“SOW”) to be executed by the parties for
such professional services by AGNES.
d. System Requirements. A stable internet connection and
modern browser such as Firefox or Google Chrome is required to access and use
the Service. The Service may work in a limited manner on other web browsers,
but the Service is designed for use on modern browsers. For a list of currently
supported browsers go to support.AGNEScull.com.
e. Updates; Modifications. AGNES reserves the right,
in its sole discretion, to update, modify, or remove the features,
functionality, or other aspects of the Service at any time.
f. Trial Period. This Agreement also applies to any trial
period that Customer may be using, which begins when Customer first accesses
the Service. During any such trial period certain usage restrictions may apply.
If Customer upgrades to a paid subscription plan and desires to keep the Hosted
Data uploaded during the trial period, the trial period Hosted Data retained
will become billable at the then-current rates pursuant to Section 11 of this
Agreement. Termination will occur immediately upon expiration of the trial
period if Customer does not upgrade to a paid plan. ANY NATIVE DATA ENTERED OR
UPLOADED INTO THE SERVICE, AND ANY CUSTOMIZATIONS MADE TO THE SERVICE DURING
THE TRIAL, WILL BE PERMANENTLY DELETED AND UNAVAILABLE UNLESS CUSTOMER UPGRADES
TO A PAID SERVICE PRIOR TO THE CLOSE OF THE TRIAL PERIOD. CUSTOMER UNDERSTANDS
AND ACKNOWLEDGES THAT IT WILL NOT BE ENTITLED TO RECEIVE ANY ADDITIONAL FREE
TRIALS ONCE THE INITIAL TRIAL PERIOD HAS EXPIRED.
g. Suspension of the Service. Without limiting AGNES’s
termination rights herein, AGNES reserves the right, at any time, with or
without notice in AGNES’s sole and absolute discretion, to temporarily suspend
or otherwise deny access to or use of the Service, without incurring obligation
or liability, for: (a) scheduled or unscheduled maintenance; (b) maintaining
the security or integrity of AGNES’s network, hardware, or associated systems
or those of AGNES third party providers; (c) unusual spikes in activity or
usage of the Service; (d) unplanned technical problems or outages; (e) the
actual or suspected violation of this Agreement by Customer or any of its
Users; (f) any failure by Customer to pay an invoice when due; (g) judicial or
other governmental demand or order, subpoena or law enforcement request that
expressly or by reasonable implication requires AGNES to do so; or (h) the
expiration or termination of this Agreement. AGNES will use reasonable efforts
to notify Customer of any scheduled maintenance. AGNES will not be liable for
any suspension or disablement of the Service that occurs pursuant to this
CUSTOMER RESPONSIBILITIES & RESTRICTIONS.
a. General. Customer is responsible and liable for
all uses of the Service 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. Without limiting the generality of the
foregoing, Customer is responsible for all acts and omissions of Users, and any
act or omission by an User that would constitute a breach of this Agreement if
taken by Customer will be deemed a breach of this Agreement by Customer.
Customer shall use reasonable efforts to make all Users aware of this
Agreement’s provisions as applicable to such User’s use of the Service, and shall
cause Users to comply with such provisions.
b. Restrictions. Customer shall not use the Service for
any purposes beyond the scope of the access granted in this Agreement. Customer
shall not at any time, directly or indirectly, and shall not permit any Users
to: (i) copy, modify, or create derivative works of the Service or
Documentation, in whole or in part; (ii) rent, lease, lend, sell, license,
sublicense, assign, distribute, publish, transfer, or otherwise make available
the Service or Documentation; (iii) reverse engineer, disassemble, decompile,
decode, adapt, or otherwise attempt to derive or gain access to any software
component of the Service, in whole or in part; (iv) remove any proprietary
notices from the Service or Documentation; (v) use the Service in a manner that
comprises the integrity of Service or the confidentiality of other users of the
Service; and (vi) use the Service or Documentation in any manner or for any
purpose that infringes, misappropriates, or otherwise violates any intellectual
property right or other right of any person, or that violates any applicable
c. Notification of Unauthorized Use. Customer will
immediately notify AGNES of any actual or threatened unauthorized use of or
access to the Service or Customer’s Hosted Data that comes to Customer or a
User’s attention. In the event of any such unauthorized use, Customer will take
all steps necessary to terminate such unauthorized use or threatened activity
and to mitigate its effects. Additionally, Customer will provide AGNES with
such cooperation and assistance related to any such unauthorized use as AGNES
may reasonably request. Notification of such unauthorized use or other security
concerns should be reported to AGNES at email@example.com.
Responsibility. Customer shall retain sole responsibility for:
(a) all Hosted Data, including its content and use; (b) all information,
instructions and materials provided by Customer or any User in connection with
the Service; (c) Customer’s information technology infrastructure, including
computers, software, databases, electronic systems (including database
management systems), and networks, whether operated directly by Customer or
through the use of third-party services; (d) the security and use of Customer’s
and its Users’ account access credentials; and (e) all access to and use of the
Service directly or indirectly by or through the Customer systems or Customer
and Users’ account access credentials, with or without Customer’s knowledge or
consent, including all results obtained from, and all conclusions, decisions,
and actions based on, such access or use. AGNES will have no responsibility or
liability for the accuracy of data uploaded to the Service by Customer,
including without limitation Hosted Data.
b. Customer Access and Security. Customer shall
employ all physical, administrative, and technical controls, screening, and
security procedures and other safeguards necessary to: (a) securely administer
the distribution and use of all account access credentials and protect against
any unauthorized access to or use of the Service; and (b) control the content
and use of Hosted Data, including the uploading or other provision of Hosted
Data for processing by the Service.
c. Data Privacy and Security. This Agreement and use
applies only to the Service and Site, and does not apply to any third-party
website or service linked to the Service. AGNES shall maintain appropriate administrative,
physical and technical safeguards to protect the security, confidentiality and
integrity of Hosted Data, including encryption of Hosted Data at rest and in
internet transmission (using TLS or similar technologies). Except otherwise set
forth in this Agreement, AGNES shall not disclose Hosted Data to any third
party for any purpose other than to provide the Service, support, or related
services to Customer.
d. Processing of Hosted Data. Subject to the terms of
this Agreement, AGNES shall use commercially reasonable efforts to process
Hosted Data in accordance with the normal functions of the Service.
Notwithstanding the foregoing, Customer understands and acknowledges that due
to file type, file corruption, encryption, or automatic image conversion
issues, there may be times when: (a) Hosted Data cannot be extracted and
processed; (b) a certain amount of Hosted Data may not be suitable or available
for extraction from text, metadata or other information; or (c) file images may
not correctly format when image files are created from native documents for
purposes of review or production (collectively, “Exception” or “Exceptions”).
Such Exceptions may limit the function of any searching, filtering or other
analysis of the Hosted Data within the Service. Additionally, Customer
understands that in processing data there are times data is lost or damaged.
Customer will be responsible for and shall maintain adequate back-up and
archival copies of all Hosted Data. AGNES shall bear no liability with respect
to any of Hosted Data that is lost or damaged as a result of the processing
e. Data Processing Addendum. To the extent the Service
provided to Customer will include Processing (as defined in the Data Processing Addendum)
of personal data subject to the laws of the European Union, the European
Economic Area and their member states, Switzerland and the United Kingdom,
including, without limitation, GDPR (as defined in the Data Processing
Addendum), then the parties agree that the additional terms and conditions set
forth in the Data Processing Addendum shall be incorporated herein by this
reference, and each party agrees to comply with the terms and conditions set
forth in the Data Processing Addendum.
f. Ownership of Hosted Data. Customer is and will
remain the sole and exclusive owner of all right, title and interest in and to
all Hosted Data. Customer grants AGNES a non-exclusive, royalty-free, worldwide
license to reproduce, distribute, and otherwise use and display the Customer
Data and perform all acts with respect to the Customer Data as may be necessary
for AGNES, AGNES’s personnel, and AGNES’s authorized third parties to provide
the Services, including, but not limited to, maintenance of the Services and
Customer’s account, improving search and tagging functions with Customer’s
account, and supporting the integrity of the Services and data processing
systems. Customer hereby irrevocably grant all such rights and permissions in
or relating to Hosted Data as are necessary or useful for AGNES.
g. Aggregated Statistics. Notwithstanding anything to the
contrary in this Agreement, AGNES may monitor Customer’s use of the Service and
collect and compile Aggregated Statistics. As between AGNES and Customer, all
right, title, and interest in Aggregated Statistics, and all intellectual
property rights therein, belong to and are retained solely by AGNES. Customer
acknowledges that Provider may compile Aggregated Statistics based on Customer
data input into the Service. Customer agrees that AGNES may (i) make Aggregated
Statistics publicly available in compliance with applicable law, and (ii) use
Aggregated Statistics to the extent and in the manner permitted under applicable
law; provided that such Aggregated Statistics do not identify Customer or
Customer’s Confidential Information.
5. INTELLECTUAL PROPERTY; FEEDBACK.
a. Ownership. AGNES owns all right, title, and
interest in and to the Service and the Site (including without limitation all
software used to provide the Service and all graphics, user interfaces, logos,
and trademarks reproduced through the Service), AGNES’s Confidential
Information, and the Feedback including all intellectual property rights
contained therein. Except for the express rights granted in Section 2, no other
licenses or rights are granted by AGNES, by implication, estoppel or otherwise,
and all rights not expressly granted herein are reserved. Customer may not
modify, publish, transmit, reproduce, create derivative works or improvements
from, distribute, display, incorporate into another web site, or in any other
way exploit the Service or the Site, in whole or in part, without prior written
permission from AGNES.
b. Feedback. Customer has not agreed to and does not
agree to treat as confidential any Feedback Customer or Users provide to AGNES,
and nothing in this Agreement or in the parties’ dealings arising out of or
related to this Agreement will restrict AGNES’s right to use, profit from,
disclose, publish, keep secret, or otherwise exploit Feedback, without
compensating or crediting Customer or the User in question. Notwithstanding the
provisions of Section 6 below, Feedback will not be considered Confidential
Information, provided information Customer transmits with Feedback or related
to Feedback may be considered Confidential Information.
c. Trademarks. The Service and Site contains valuable
trademarks owned and used by AGNES to distinguish AGNES services from those of
others. The Service and Site may also contain references to other entities’
trademarks and service marks, but such references are for identification
purposes only and are used with permission of their respective owners. AGNES
does not claim ownership in, or any affiliation with, any third-party
trademarks or service marks appearing in the Service or Site. Customer will not
use or display AGNES’s trademarks without AGNES’s prior written consent.
a. “Confidential Information” shall include confidential or proprietary
technical, business or financial information and materials disclosed by
Customer or AGNES to the other party, whether orally or in writing, that is
designated or identified as confidential or that reasonably should be
understood to be confidential given the nature of the information and the
circumstances surrounding the disclosure. Hosted Data constitutes Customer
Confidential Information. Notwithstanding the foregoing, the Service, and any
associated pricing, documentation, product roadmaps, business and marketing
plans, and any information related to the foregoing constitutes the
Confidential Information of AGNES, regardless of a lack of confidentiality
marking or reasonableness determination.
b. Both Parties agree to hold Confidential Information in confidence and
protect such Confidential Information from disclosure to any third party, other
than as expressly set forth in this Agreement and to limit access to the other
party’s Confidential Information to such of its personnel, agents, subcontractors,
suppliers and/or consultants, if any, who have a need to access such
information in accordance with the terms of this Agreement. Both parties agree
that all Confidential Information is proprietary to the disclosing party or
such third party, as applicable, and shall remain the sole property of the
disclosing party or such third party.
c. Confidential Information shall not include any information that: (i) is or
becomes generally known to the public without breach of any obligation owed to
disclosing party; (ii) was known to the receiving party prior to its disclosure
by the disclosing party without restriction on use or disclosure; (iii) was
independently developed by the receiving party without breach of any obligation
owed to disclosing party; or (iv) is rightfully received from a third party
without restriction on use or disclosure.
d. Compelled Disclosures. Notwithstanding the foregoing, AGNES reserves the
right to disclose Confidential Information in response to an order of a court
or other governmental body of competent authority or as otherwise required by
law or regulation to be disclosed (“Compelled Disclosure”), provided that, AGNES
will use reasonable efforts to provide Customer with prior notice (to the
extent legally permitted) in order to afford Customer an opportunity to seek a
protective order or otherwise challenge the Compelled Disclosure. Customer is
responsible for any expenses incurred in seeking to prevent a Compelled
Disclosure. After provision of such prior notice, AGNES will not be liable if AGNES
complies with the disclosure after giving Customer a reasonable amount of time
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
a. From Customer. Customer represents and warrants
that: (a) it has the full right and authority to enter into, execute, and
perform its obligations under this Agreement; (b) it has accurately identified
itself and it has not provided any inaccurate information about itself or its
Users to or through the Service; (c) it is a corporation, the sole
proprietorship of an individual 18 years or older, or another entity authorized
to do business pursuant to applicable law; and (d) the information Customer
provides in registering for the Service is accurate, complete, and is Customer
has the right to use and disclose to AGNES.
b. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE
AND SITE ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. AGNES
EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, SATISFACTORY QUALITY, NON-INFRINGEMENT, ACCURACY, COMPLETENESS,
ADEQUACY OF INFORMATION AND ALL OTHER WARRANTIES ARISING FROM COURSE OF
DEALING, USAGE OR TRADE PRACTICE. AGNES DOES NOT WARRANT THAT THE SERVICE AND
SITE WILL OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE
COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE,
ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR THAT DEFECTS CAN BE
CORRECTED. ADDITIONALLY, ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND AGNES
EXPRESSLY DISCLAIMS ALL WARRANTIES RELATED TO THE THIRD-PARTY SOFTWARE,
MATERIALS OR WEB BROWSERS THAT CUSTOMER MAY NEED TO USE IN CONJUNCTION WITH THE
SERVICE OR SITE. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY
THIRD-PARTY SOFTWARE, MATERIALS OR WEB BROWSERS ARE STRICTLY BETWEEN CUSTOMER
AND THE APPLICABLE THIRD-PARTY PROVIDER. MOREOVER, GIVEN THE NUMBER OF
VARIABLES INVOLVED AGNES DOES NOT WARRANT A GUARANTEED SPEED FOR DATA
PROCESSING OR LENGTH OF SERVICE. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT AGNES
WILL HAVE NO LIABILITY OF ANY KIND WITH RESPECT TO (A) THE LOSS, ALTERATION, OR
DESTRUCTION OF CUSTOMER HOSTED DATA IN CONNECTION WITH THE SERVICE; (B) ANY
CLAIMS OR LOSSES OF ANY KIND RELATED TO THE MISUSE OF THE SERVICE, INCLUDING
BUT NOT LIMITED TO THE ACTIVITIES OF THIRD PARTIES OR DUE TO CUSTOMER’S FAILURE
TO MAINTAIN THE CONFIDENTIALITY AND SECURITY OF THE SERVICE; OR (C) ANY CLAIMS OR
LOSSES DUE TO IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF
THE SERVICE, INCLUDING BUT NOT LIMITED TO PLANNED OR UNPLANNED DOWNTIME OR ANY
UNAVAILABILITY DUE TO A FORCE MAJEURE EVENT.
8. LIMITATION OF LIABILITY.
a. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AGNES, ITS AFFILIATES,
OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS (COLLECTIVELY, “AGNES
PARTIES”) SHALL NOT BE LIABLE TO CUSTOMER, CUSTOMER’S USERS, OFFICERS,
EMPLOYEES, AGENTS, SUPPLIERS, CLIENTS, OR ANY PARTY CLAIMING THROUGH CUSTOMER
(COLLECTIVELY, “CUSTOMER PARTIES”) FOR ANY (A) INDIRECT, CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, REVENUE, GOODWILL, BUSINESS, USE, OR REVENUE,
DIMINUTION IN VALUE, OR IMPAIRMENT INABILITY TO USE OR LOSS, INTERRUPTION OR
DELAY IN SERVICE); OR (B) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR
BREACH OF DATA OR SYSTEM SECURITY, INCURRED BY CUSTOMER PARTIES UNDER ANY
THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY,
NEGLIGENCE OR AS A RESULT OF ANY BREACH OF THIS AGREEMENT OR THE USE OR
INABILITY TO USE THE SERVICE, EVEN IF AGNES OR THE AGNES PARTIES HAVE BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY
AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, AGNES AND THE AGNES
PARTIES MAXIMUM COLLECTIVE AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT
EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO AGNES IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHETHER ARISING
UNDER OR RELATED TO A CLAIM OF BREACH OF CONTRACT, TORT, WARRANTY, NEGLIGENCE
OR AS A RESULT OF ANY BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE
THE SERVICE, EVEN IF AGNES OR THE AGNES PARTIES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
c. ANY CLAIM RELATED TO THIS AGREEMENT OR THE SERVICE AND SITE MUST BE BROUGHT
WITHIN ONE YEAR OF THE DATE IN WHICH THE CLAIM FIRST COULD BE FILED. IF IT IS
NOT, THEN THAT CLAIM IS PERMANENTLY BARRED.
a. Customer will defend, indemnify and hold AGNES, its affiliates and
licensors, and AGNES’s respective employees, officers, directors, and
representatives harmless from and against all claims, damages, losses,
liabilities, costs, and expenses (including attorneys” fees) relating to or
arising from (a) the Hosted Data, including any processing of the Hosted Data
by or on behalf of AGNES in accordance with this Agreement; (b) Customer or its
Users’ use of the Service or Site; (c) any violation by Customer or Customer’s
Users of this Agreement, or applicable laws; or (d) Customer or its Users infringement
or violation of the intellectual property rights or other rights of another. AGNES
will provide Customer with notice of such claim and AGNES reserves the right to
assume sole control of the defense.
10. TERM AND TERMINATION.
a. Term. This Agreement will remain in effect until
terminated by either Customer or AGNES as set out below (“Term”).
i. AGNES may terminate Customer’s access and use of the Service and this
Agreement, effective upon notice to Customer, at any time and for any reason,
including but not limited to: (a) if Customer fails to pay an invoice within 30
days of receipt; (b) if AGNES reasonably believes that Customer has violated
this Agreement or applicable laws; or (c) if Customer becomes the subject of a
bankruptcy, insolvency, receivership, liquidation, assignment for the benefit
of creditors or similar proceeding.
ii. Customer can terminate at any time by contacting AGNES, provided that if
Customer is under a subscription plan, Customer understands and agrees that the
Service will not terminate until the end of the then current Term as detailed
in the subscription plan Customer selects. Cancellations will be processed
within forty-eight (48) hours from AGNES’s receipt of the request.
c. Export and Destruction of Hosted Data. During the
Term or a trial Term, Customer will have the ability to export or retrieve
Hosted Data from the Service at any time. Following Termination, AGNES will
have no obligation to maintain or provide Hosted Data and shall thereafter,
unless otherwise prohibited by applicable law, delete Hosted Data in AGNES
systems or otherwise in AGNES’s possession or control within a reasonable
period of time after termination.
d. Survival. Sections 3, 4.i., 4.j., 5, 7, 8, 9, 11,
and 13 shall survive the termination or expiration of this Agreement.
11. PAYMENT OF FEES.
a. Pricing. Customer agrees to pays all Fees as agreed
between AGNES and Customer via the Site or other pricing agreement, incurred in
connection with its account. Fees will be invoiced on a monthly or annual
basis, as applicable. Customer may cancel this Agreement at any time, subject
to the provisions of Section 11.c below. Customer may upgrade its subscription
to the Services, if such upgrades are available, at any time to accommodate
additional requirements. If you choose to upgrade, your existing Fees
arrangement will be terminated and replaced by a new prorated Fees arrangement
reflecting the upgrades.
b. Payment Terms. Customer will have the option of
paying by credit card, electronic debit, or being invoiced. All payments are
due within seven (7) days of the billing date. If payment is not received in
thirty (30) days of the billing date AGNES reserves the right to suspend the
Service until AGNES receives and processes all payments. If payment is not
received at the end of sixty (60) days from the billing date, AGNES reserves
the right to terminate this Agreement and delete all Hosted Data.
Alternatively, at AGNES’s sole discretion, in the event that payment is late, AGNES
reserves the right to charge interest at the rate of twelve percent (12%) per
annum or the highest legal rate, whichever is lower, calculated from the
payment due date until the date that full payment is received. AGNES reserves
the right to modify the Fees at any time upon notice via the email address
provided by Customer.
c. No Refunds. All Fees associated with the Service
are non-refundable. Customer understands and acknowledges that no credits,
refunds or prorated discounts will be issued for unused amounts — even if
prepaid via a subscription plan.
12. AVAILABILITY OF SERVICE; MAINTENANCE.
a. Interruptions of data processing and access may occur due to planned or
emergency maintenance and repair by AGNES, or due to a Force Majeure Event (as
defined in Section 13.c). Under no circumstances will AGNES be held liable for
any financial or other damages due to such interruptions. For the purposes of
this Section, maintenance shall include, but is not limited to, one quarterly
(forty-eight hour) planned maintenance window if needed, brief planned
maintenance windows (scheduled in advance, as needed), and emergency
maintenance windows (critical, unforeseen maintenance needed for the security
or performance of the platform).
a. Governing Law; Venue. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware, without
regard to its principles regarding conflicts of law. Each Party hereby
irrevocably submits to, and waives any objection to, the exclusive personal
jurisdiction and venue of JAMS ADR located in New York, NY.
b. Dispute Resolution. If a dispute arises out of or
relates to this Agreement, or the breach thereof, and if said dispute cannot be
settled through negotiation, Customer and AGNES agree first to try in good
faith to settle the dispute by mediation to be held in the city and county of New
York, NY and administered by JAMS before resorting to arbitration, litigation,
or some other dispute resolution procedure. JAMS ADR shall have exclusive
jurisdiction of all disputes hereunder, which will be administered by JAMS
c. Force Majeure. AGNES will not be liable for any delay
or failure to perform under this Agreement due to circumstances beyond AGNES’s
reasonable control, including acts of God, acts of government, flood, fire,
earthquakes, civil unrest, acts of terror, strikes or other labor problems,
regional shortage of adequate power or telecommunications or transportation,
internet or other service disruptions involving hardware, software or power
systems not within AGNES’s possession or reasonable control, and denial of
service attacks (“Force Majeure Event”).
d. Entire Agreement. This Agreement constitutes the
entire agreement between Customer and AGNES and supersedes all proposals, oral
or written, all negotiations, conversations, discussions, or agreements between
Customer and AGNES relating to the subject matter of this Agreement and all
past dealing or industry custom. Notwithstanding the foregoing, in the event
that Customer has executed a separate Master Services Agreement or License
Agreement with AGNES apart from this Agreement, then such Master Services
the Service. In the event of any conflict between this Agreement and any of AGNES’s
Data Processing Addendum, if applicable, the terms of this Agreement will
e. Notices; Electronic Communications. AGNES may send
notices pursuant to this Agreement to Customer’s email contact points provided
by Customer, and such notices will be deemed received 24 hours after they are
sent. Any notices to be provided to AGNES or questions with respect to the
terms of this Agreement shall be sent to firstname.lastname@example.org, and such notices
will be deemed received 72 hours after they are sent.
f. Assignment. Customer may not assign this Agreement in
whole or in part, by operation of law or otherwise, and any attempt to do so
will be null and void. This Agreement shall be binding upon and shall inure to
the benefit of Customer and AGNES’s successors and assigns. AGNES may assign
its rights, without such consent of Customer and upon 15 days prior written
notice to the other party, to (a) one or more of its subsidiaries, or (b) an
entity that acquires all or substantially all of the business or assets of such
party to which this Agreement pertains, whether by merger, reorganization,
acquisition, sale, or otherwise.
g. Waiver. Failure to exercise or enforce any right or
provision of this Agreement shall not constitute a waiver of such right or provision.
h. Independent Contractors. The parties are
independent contractors and shall so represent themselves in all regards.
Neither party is the agent of the other, and neither may make commitments on
the other’s behalf.
i. Third-Party Software. Any use of or access to
third-party software shall be subject to the license terms and conditions of
such third-party software.
j. Severability. In the event any one or more of the
provisions of this Agreement shall for any reason be held to be invalid, illegal
or unenforceable, the same shall not affect the validity or enforceability of
any other provisions of the Agreement.
k. Amendment. Vendor may amend this Agreement from
time to time by posting an amended version at its Website or sending Customer
written notice thereof. Such amendment will be deemed accepted and become
effective 15 days after such notice (the “Amendment Date”) unless Customer
first gives Vendor written notice of rejection of the amendment. In the event
of such rejection, this Agreement will continue under its original provisions,
and the amendment will become effective at the start of Customer’s next Term
following the Amendment Date. Customer’s continued use of the Service following
the effective date of an amendment will confirm Customer’s consent thereto. AGNES
version of either at the Website, and such new version will become effective on
the date it is posted.
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