Legal
Terms and conditions
iGenius Software Subscription Services Agreement
These terms and Conditions (“Agreement”) govern your use of the Subscription Services. iGenius (hereinafter referred to as “Company”) will provide the Subscription Services to you (“Customer”) only upon the condition that you accept the Agreement, which you can do by clicking on the checkbox marked “I Accept and agree to be bound by the terms of this Agreement and Company’s Privacy Policy" during the login/set-up process through a checkbox. By clicking the checkbox, you confirm that you have read and understand this Agreement and accept all of its terms, including Privacy Policy and relative DPA. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “Customer” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not click the checkbox, and you should not access the Crystal Platform or otherwise use the Subscription Services. The date upon which you accept the terms of this Agreement is referred to as the “Effective Date.” This Agreement (including any exhibit, annex, and appendix hereto) constitutes the entire agreement among the parties hereto.
1. Definitions
- “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials or (ii) the Customer’s and/or its Authorized Users’ Use of the Subscription Services, including without limitation, any usage data or trends with respect to the Subscription Services.
- “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.
- “Beta Services” means certain services or functionality designated as a pilot, limited release, developer preview, non-production, evaluation, early adoption, or by a similar description and made available to Customer by the Company at no additional charge for Customer to try at its option.
- “Crystal Platform” means the Company’s proprietary Artificial Intelligence platform.
- “Company IP” means the Subscription Services, all underlying technology, algorithms, interfaces, databases, tools, know-how, processes, methods, information, data, data models, content, materials and Documentation used to provide or deliver the Subscription Services, all improvements, modifications or enhancements to, or derivative works based upon the foregoing (regardless of inventorship or authorship), all Intellectual Property Rights in and to any of the foregoing, and all Aggregate Data derived from the Subscription Services.
- “Customer Materials” means all information, data, content, and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Company in connection with Customer’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Company and made available through or in connection with the Subscription Services, which constitute Company IP.
- “Data Protection Legislation” means, in the EU Member States, the GDPR and the complementary data protection laws, including any guidance and/or codes of practice issued by the relevant Data protection supervisory authority within the EU and/or in non-EU Member States, any applicable data protection law relating to the safeguarding and lawful processing of Personal Data;
- “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list, and other similar materials in hard copy or electronic form, if and as provided by the Company to the Customer (including any revised versions thereof), relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
- “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Licensed Volume” means the limits, volume, or other measurement or conditions of permitted Use for the applicable Subscription Service, depending on the Plan to which Customer subscribes, including any limits on the number of Authorized Users permitted to Use the Subscription Services based on Customer’s subscription tier.
- “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority, or other entity.
- "Personal Data" means any information relating to an identified or identifiable natural person; an identifiable natural person can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. To avoid doubts, “Personal Data” has the meaning set forth in the General Data Protection Regulation EU 2016/679 ("GDPR") and any other applicable Data Protection Legislation.
- “Plan” means the specific subscription plan chosen by the Customer when subscribing to the Subscription Services and all terms and conditions applicable to that.
- “Services” means the Support Services and the Subscription Services.
- “Subscription Services” means the products and services made available by the Company to Customer pursuant to this Agreement, including, without limitation, the Crystal Platform, all updates, patches, bug fixes, and upgrades to that.
- “Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation.
2. Subscription Services; Access and Use
- Subscription Services. Upon subscribing to the Subscription Services, the Customer will be asked to select the Plan that best suits its needs.
- License Grant. Upon Customer’s acceptance of and subject to Customer’s continued compliance with the terms of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 15) right and license to access the Crystal Platform and Use the Subscription Services during the Term, solely for Customer’s internal business purposes, in accordance with, and subject to, the Licensed Volume.
- Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) Use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease Use of the Subscription Services to any other Person, or otherwise allow any Person to Use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) Use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law including the applicable labour national laws; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Company for use expressly for such purposes.
- Authorized Users. Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement, and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Company if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created. Customers will not allow any Person other than Authorized Users to Use the Subscription Services.
- Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access, and/or use compatible third-party services, products, technology, and content (collectively, “Third-Party Services”) through the Subscription Services. Company does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade to that. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.
- Beta Services. From time to time, the Company may make Beta Services available to Customer at no charge. The customer may choose to try such Beta Services or not in the Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use. Beta Services do not form part of the “Subscription Services” under this Agreement, and they may be subject to additional terms. Notwithstanding the foregoing, Customer understands and agrees that all restrictions, Company’s reservation of rights, and Customer’s obligations concerning the Subscription Services and use of any Third-Party Services in connection with the Subscription Services apply equally to Customer’s use of the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one (1) year from the date the Beta Services were made available to Customer or when a version of the Beta Services becomes generally available to the public. The Company may discontinue any Beta Services at any time and decide not to make them publicly available at its sole discretion. Access to the Beta Services is granted “as is” without warranties or indemnities of any kind. Customer is solely and exclusively responsible for, and Company will have no liability for any loss, harm, or damage arising out of or in connection with any Beta Service, including any loss or damage to any Customer Material.
3. Fees and Payment
- Fees. The customer will pay the Company the non-refundable fees applicable to the Plan selected by the Customer and all associated charges (“Fees”). The Company reserves the right to change the Fees and institute new ones at any time, in its sole discretion. Company will use commercially reasonable efforts to communicate the revised Fees to the Customer at least (30) days before the end of the then-current term. The revised Fees will apply automatically upon renewal of the Customer’s subscription unless the Customer cancels its subscription in accordance with Section 11.
- Payments Procedure. Upon subscribing to the Subscription Services, the Customer will be asked to select a payment method and provide to the Company valid, up-to-date and complete billing information associated with such payment method to allow Company to set up automatic billing for Customer’s account. Each month or year after that, as applicable, the Company will charge the Customer’s selected payment method for any Fees, including any applicable taxes.
- Remedies. If the Company cannot charge the Customer’s selected payment method for any reason (such as expiration or insufficient funds), the Company will notify the Customer and attempt to charge the payment method again, as the Customer may update its payment method or payment method information. If seven (7) days after such failed payment, the Company still has not received the Fee amounts due by Customer, the Company may lock Customer’s account and suspend Customer’s subscription. If after an additional seven (7) days, payment still has not been received by Company, (i) Company may immediately terminate Customer’s subscription and this Agreement without any responsibility to Customer; (ii) late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law; and (iii) Customer will reimburse Company for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. All payments are non-refundable, and neither Party will have the right to set off, discount, or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement.
- Taxes. Customer is responsible for all sales, use, ad valorem, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, multinational, or local governmental regulatory authority on any amount payable by Customer to Company hereunder, other than any taxes imposed on Company’s income. Without limiting the foregoing, if Customer is required to deduct or withhold any taxes from the amounts payable to Company hereunder, Customer will pay an additional amount so that Company receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4. Ownership
- “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials or (ii) the Customer’s and/or its Authorized Users’ Use of the Subscription Services, including without limitation, any usage data or trends with respect to the Subscription Services.
- “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.
- “Beta Services” means certain services or functionality designated as a pilot, limited release, developer preview, non-production, evaluation, early adoption, or by a similar description and made available to Customer by the Company at no additional charge for Customer to try at its option.
5. Confidential Information
- As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, except as otherwise specified in writing by the Company, the Company IP will be deemed Confidential Information of the Company. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party before receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
- The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence. It will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement, provided that the Company may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
- Each Party’s obligations of non-disclosure about Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- The terms and conditions of this Agreement will constitute Confidential Information of each Party. Still, they may be disclosed confidentially to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors, or other funding sources (and their respective advisors and attorneys) for due diligence purposes.
6. Support
- Service Availability. The Company will use commercially reasonable efforts to make the Subscription Services always available. In case of service issues or interruptions, the Company will make every effort to promptly resolve the problem and restore full functionality..
- Support Services. The Company will provide support through the Support Services set forth in the support terms available at the end of the page (the “Support Services”). The Customer acknowledges and agrees that iGenius’ Customer Managers will have access to Crystal’s environment dedicated to the Customer for: infrastructure integration, use case configuration, training admin and users, testing and support.
- Service Levels as Performance Targets. The Customer acknowledges and agrees that any service levels set forth in the support terms, or otherwise communicated by the Company, are performance targets only and any failure of Company to meet any service level will not result in any breach of this Agreement or any payment or liability of Company to Customer.
- Service updates. The Company reserves the right to make changes, improvements, or updates to the Subscription Services. Users will be notified in advance of such changes in reasonable time.
- Security Safeguards. The Company will use commercially reasonable efforts to maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer data, in accordance with applicable industry standards and Company’s Privacy Policy available at https://www.igenius.ai/legal/privacy.
7. Representations and Warranties
- Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
- Customer represents and warrants that (i) it has obtained and will continue to have, during the Term, all rights, authority and licenses necessary to access and use the Customer Materials in connection with the Subscription Services; (ii) Company’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party; (iii) it will comply with all applicable federal laws, regulations and rules including those that prohibit or restrict the export or re-export of the Subscription Services or any part thereof, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. The Customer further understands that the Subscription Services and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as outlined in this Agreement.
- Company represents and warrants that, to the extent, the Customer Materials include non-aggregated Personal Data, Company will process such data only for the period of time necessary to provide the Subscription Services, and in any case no longer than the Term of this Agreement, except where required under applicable law.
8. Indemnification
- Company Indemnification. The Company will defend Customer against any claim, suit, or proceeding brought by a third party (“Claims”) alleging that the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Company (including reasonable attorneys’ fees) resulting from such Claim. Notwithstanding the foregoing, Company will be under no obligation to defend, indemnify, or otherwise hold Customer harmless if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct, or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Company or Company’s continued Use of a prior version of the Subscription Services that has been superseded by a non-infringing version subsequently released by Company; (iv) modifications to the Subscription Services by anyone other than Company; or (v) combinations of the Subscription Services with software, data or materials not provided by Company.
- IP Remedies. Suppose the Company reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights. In that case, the Company may, at its sole option and expense, use commercially reasonable efforts to (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing or (ii) procure the right for Customer to continue Use. Suppose the Company determines that neither alternative is commercially practicable. In that case, the Company may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of such termination, the Company will refund the Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8(b) will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
- Customer Indemnification. Customer will defend, indemnify and hold Company harmless against all Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; or (C) any claim relating to the quality, accuracy or performance of the Customer Materials; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(c), and in each case, will indemnify and hold harmless Company against any damages and costs awarded against Company or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
- Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel, or if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
9. Disclaimer
The services and company IP are provided "as is," and the company makes no warranties or representations to customer, its authorized users, or any other party regarding the company IP or the services. To the maximum extent permitted by applicable law, the company hereby disclaims all warranties and representations, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement, and any warranties arising out of course of dealing or usage of trade. Without limiting the foregoing, the company hereby disclaims any warranty that the use of the services will be error-free, bug-free, or uninterrupted.
10. Limitations of Liability
- Exclusion of Damages. Except for the parties' liability for fraud or wilful misconduct and the customer's liability for the breach of the company's intellectual property rights, the breach of the license granted to the customer hereunder, or the breach of the customer’s payment obligations, in no event will either party be liable for any incidental, special, exemplary, punitive or consequential damages, or any loss of income, data, profits, revenue or business interruption, or the cost of cover or substitute services or other economic loss, arising out of or in connection with this agreement, the company ip or the provision of the services, whether such liability arises from any claim based on contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not such party was advised of the possibility of such loss or damage.
- Total Liability. In no event will the company’s total and aggregate liability to the customer or its authorized users in connection with this agreement, the company IP, or the provision of the services exceed the fees paid by the customer to the company in the twelve (12) month period preceding the event giving rise to the claim, regardless of the legal or equitable theory on which the claim or liability is based, and whether or not company was advised of the possibility of such loss or damage.
- Basis of the Bargain. The parties hereby acknowledge and agree that the limitations of liability in this Section 10 are an essential part of the basis of the bargain between the company and the customer and will apply even if the remedies available hereunder are found to fail their essential purpose.
11. Term and Termination
- Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the subscription period for the Plan (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods equal to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party cancels or terminates the subscription in accordance with Section 11(b).
- Termination. Customers may decide to cancel their subscription at any time through their account on the Company’s website or mobile application. The customer understands that such cancellation will only take effect at the end of the then-current term, and no refund will be issued to the Customer under any circumstances. In addition to Company’s termination rights under Sections 3(c) and 8(b) of this Agreement, Company may terminate this Agreement, effective on written notice to Customer, if Customer materially breaches this Agreement, and such breach remains uncured thirty (30) days after the date of Company’s notice to Customer.
- Survival. This Section 11(c) and Sections 4(c), 5, 7, 8, 9, 10, 11(c), 11(d), 12, 14 and 16 survive any termination or expiration of this Agreement.
12. Trademarks
Client hereby grants Company a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks, and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation, and maintenance of the Subscription Services; and (ii) Company’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Company and case studies. All goodwill and improved reputation generated by the Company’s use of the Customer Marks ensures the exclusive benefit of the Customer. Company will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
13. Force Majeure
Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
14. Governing Law
For the contracts signed by iGenius Inc., this Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws, rules, or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. All disputes under this Agreement shall be submitted to the exclusive jurisdiction of the federal or state courts located in the County of Santa Clara, California, and the parties hereby waive any objection to the jurisdiction and venue of such courts.
For the contracts signed by iGenius S.p.A., this Agreement will be governed by and construed in accordance with the Italian law, without regard to or application of conflict of laws, rules, or principles. All disputes under this Agreement shall be submitted to the exclusive jurisdiction of the Court of Milan, and the parties hereby waive any objection to the jurisdiction and venue of such court.
15. Assignment
This Agreement, or any of its rights or any materials provided hereunder, may not be assigned or otherwise transferred by either party to any other person or entity, whether by operation of law or otherwise, without the other party's express written consent, which shall not be unreasonably withheld or delayed and any such attempted assignment not permitted by either party shall be void and of no effect; provided, however, that such consent of the other party shall not be required with respect to an assignment or transfer by either party to (i) any corporate affiliate of such party; or (ii) an acquirer of all or substantially all of the assets or capital stock of such party related to this Agreement, whether through purchase, merger, consolidation or otherwise. Any permitted assignment or transfer of or under this Agreement shall be binding upon and inure to the benefit of the successors, executors, heirs, representatives, administrators, and permitted assigns of the parties hereto.
16. General
All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. This Agreement (including any exhibit, annex, and appendix hereto) is the complete and exclusive understanding and agreement between the parties regarding its subject matter. It supersedes all proposals, understandings, or communications between the parties, oral or written, regarding its subject matter unless Customer and Company have executed a separate agreement governing the use of the Subscription Services. The parties to this Agreement are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. All notices or approvals will be sent to iGenius S.p.A. Via Principe Amedeo 5, 20121 Milan, Italy for notices to the Company and the email address associated with Customer’s account for notices to Customer. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Suppose any provision of this Agreement is held unenforceable or invalid. In that case, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.
17. Support Services and Level
1. The Company will use commercially reasonable efforts to provide the following technical support services (“Support Services”):
- Electronic support through the available chat within the administrative section of the Company’s website designed to help the Customer locate and correct defects in the Subscription Services, with service available 8 hours a day, from Monday to Friday.
- Online support center available here 24 hours a day, 7 days a week for self-service technical assistance, including (i) viewing updates to supported platforms and hardware and (ii) accessing product documentation, technical articles, and FAQs.
2. Response Goals The Company will use commercially reasonable efforts to meet the following response goals:
iGenius Software Subscription Services Agreement
These terms and Conditions (“Agreement”) govern your use of the Subscription Services. iGenius (hereinafter referred to as “Company”) will provide the Subscription Services to you (“Customer”) only upon the condition that you accept the Agreement, which you can do by clicking on the checkbox marked “I Accept and agree to be bound by the terms of this Agreement and Company’s Privacy Policy" during the login/set-up process through a checkbox. By clicking the checkbox, you confirm that you have read and understand this Agreement and accept all of its terms, including Privacy Policy and relative DPA. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “Customer” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then you must not click the checkbox, and you should not access the Crystal Platform or otherwise use the Subscription Services. The date upon which you accept the terms of this Agreement is referred to as the “Effective Date.” This Agreement (including any exhibit, annex, and appendix hereto) constitutes the entire agreement among the parties hereto.
1. Definitions
- “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials or (ii) the Customer’s and/or its Authorized Users’ Use of the Subscription Services, including without limitation, any usage data or trends with respect to the Subscription Services.
- “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.
- “Beta Services” means certain services or functionality designated as a pilot, limited release, developer preview, non-production, evaluation, early adoption, or by a similar description and made available to Customer by the Company at no additional charge for Customer to try at its option.
- “Crystal Platform” means the Company’s proprietary Artificial Intelligence platform.
- “Company IP” means the Subscription Services, all underlying technology, algorithms, interfaces, databases, tools, know-how, processes, methods, information, data, data models, content, materials and Documentation used to provide or deliver the Subscription Services, all improvements, modifications or enhancements to, or derivative works based upon the foregoing (regardless of inventorship or authorship), all Intellectual Property Rights in and to any of the foregoing, and all Aggregate Data derived from the Subscription Services.
- “Customer Materials” means all information, data, content, and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Company in connection with Customer’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Company and made available through or in connection with the Subscription Services, which constitute Company IP.
- “Data Protection Legislation” means, in the EU Member States, the GDPR and the complementary data protection laws, including any guidance and/or codes of practice issued by the relevant Data protection supervisory authority within the EU and/or in non-EU Member States, any applicable data protection law relating to the safeguarding and lawful processing of Personal Data;
- “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list, and other similar materials in hard copy or electronic form, if and as provided by the Company to the Customer (including any revised versions thereof), relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
- “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
- “Licensed Volume” means the limits, volume, or other measurement or conditions of permitted Use for the applicable Subscription Service, depending on the Plan to which Customer subscribes, including any limits on the number of Authorized Users permitted to Use the Subscription Services based on Customer’s subscription tier.
- “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority, or other entity.
- "Personal Data" means any information relating to an identified or identifiable natural person; an identifiable natural person can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. To avoid doubts, “Personal Data” has the meaning set forth in the General Data Protection Regulation EU 2016/679 ("GDPR") and any other applicable Data Protection Legislation.
- “Plan” means the specific subscription plan chosen by the Customer when subscribing to the Subscription Services and all terms and conditions applicable to that.
- “Services” means the Support Services and the Subscription Services.
- “Subscription Services” means the products and services made available by the Company to Customer pursuant to this Agreement, including, without limitation, the Crystal Platform, all updates, patches, bug fixes, and upgrades to that.
- “Use” means to use and access the Subscription Services in accordance with this Agreement and the Documentation.
2. Subscription Services; Access and Use
- Subscription Services. Upon subscribing to the Subscription Services, the Customer will be asked to select the Plan that best suits its needs.
- License Grant. Upon Customer’s acceptance of and subject to Customer’s continued compliance with the terms of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 15) right and license to access the Crystal Platform and Use the Subscription Services during the Term, solely for Customer’s internal business purposes, in accordance with, and subject to, the Licensed Volume.
- Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) Use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease Use of the Subscription Services to any other Person, or otherwise allow any Person to Use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) Use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law including the applicable labour national laws; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Company for use expressly for such purposes.
- Authorized Users. Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement, and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Company if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created. Customers will not allow any Person other than Authorized Users to Use the Subscription Services.
- Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access, and/or use compatible third-party services, products, technology, and content (collectively, “Third-Party Services”) through the Subscription Services. Company does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors, or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade to that. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.
- Beta Services. From time to time, the Company may make Beta Services available to Customer at no charge. The customer may choose to try such Beta Services or not in the Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use. Beta Services do not form part of the “Subscription Services” under this Agreement, and they may be subject to additional terms. Notwithstanding the foregoing, Customer understands and agrees that all restrictions, Company’s reservation of rights, and Customer’s obligations concerning the Subscription Services and use of any Third-Party Services in connection with the Subscription Services apply equally to Customer’s use of the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one (1) year from the date the Beta Services were made available to Customer or when a version of the Beta Services becomes generally available to the public. The Company may discontinue any Beta Services at any time and decide not to make them publicly available at its sole discretion. Access to the Beta Services is granted “as is” without warranties or indemnities of any kind. Customer is solely and exclusively responsible for, and Company will have no liability for any loss, harm, or damage arising out of or in connection with any Beta Service, including any loss or damage to any Customer Material.
3. Fees and Payment
- Fees. The customer will pay the Company the non-refundable fees applicable to the Plan selected by the Customer and all associated charges (“Fees”). The Company reserves the right to change the Fees and institute new ones at any time, in its sole discretion. Company will use commercially reasonable efforts to communicate the revised Fees to the Customer at least (30) days before the end of the then-current term. The revised Fees will apply automatically upon renewal of the Customer’s subscription unless the Customer cancels its subscription in accordance with Section 11.
- Payments Procedure. Upon subscribing to the Subscription Services, the Customer will be asked to select a payment method and provide to the Company valid, up-to-date and complete billing information associated with such payment method to allow Company to set up automatic billing for Customer’s account. Each month or year after that, as applicable, the Company will charge the Customer’s selected payment method for any Fees, including any applicable taxes.
- Remedies. If the Company cannot charge the Customer’s selected payment method for any reason (such as expiration or insufficient funds), the Company will notify the Customer and attempt to charge the payment method again, as the Customer may update its payment method or payment method information. If seven (7) days after such failed payment, the Company still has not received the Fee amounts due by Customer, the Company may lock Customer’s account and suspend Customer’s subscription. If after an additional seven (7) days, payment still has not been received by Company, (i) Company may immediately terminate Customer’s subscription and this Agreement without any responsibility to Customer; (ii) late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law; and (iii) Customer will reimburse Company for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. All payments are non-refundable, and neither Party will have the right to set off, discount, or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement.
- Taxes. Customer is responsible for all sales, use, ad valorem, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, multinational, or local governmental regulatory authority on any amount payable by Customer to Company hereunder, other than any taxes imposed on Company’s income. Without limiting the foregoing, if Customer is required to deduct or withhold any taxes from the amounts payable to Company hereunder, Customer will pay an additional amount so that Company receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4. Ownership
- “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials or (ii) the Customer’s and/or its Authorized Users’ Use of the Subscription Services, including without limitation, any usage data or trends with respect to the Subscription Services.
- “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.
- “Beta Services” means certain services or functionality designated as a pilot, limited release, developer preview, non-production, evaluation, early adoption, or by a similar description and made available to Customer by the Company at no additional charge for Customer to try at its option.
5. Confidential Information
- As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, except as otherwise specified in writing by the Company, the Company IP will be deemed Confidential Information of the Company. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party before receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
- The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence. It will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement, provided that the Company may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
- Each Party’s obligations of non-disclosure about Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
- The terms and conditions of this Agreement will constitute Confidential Information of each Party. Still, they may be disclosed confidentially to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors, or other funding sources (and their respective advisors and attorneys) for due diligence purposes.
6. Support
- Service Availability. The Company will use commercially reasonable efforts to make the Subscription Services always available. In case of service issues or interruptions, the Company will make every effort to promptly resolve the problem and restore full functionality..
- Support Services. The Company will provide support through the Support Services set forth in the support terms available at the end of the page (the “Support Services”). The Customer acknowledges and agrees that iGenius’ Customer Managers will have access to Crystal’s environment dedicated to the Customer for: infrastructure integration, use case configuration, training admin and users, testing and support.
- Service Levels as Performance Targets. The Customer acknowledges and agrees that any service levels set forth in the support terms, or otherwise communicated by the Company, are performance targets only and any failure of Company to meet any service level will not result in any breach of this Agreement or any payment or liability of Company to Customer.
- Service updates. The Company reserves the right to make changes, improvements, or updates to the Subscription Services. Users will be notified in advance of such changes in reasonable time.
- Security Safeguards. The Company will use commercially reasonable efforts to maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer data, in accordance with applicable industry standards and Company’s Privacy Policy available at https://www.igenius.ai/legal/privacy.
7. Representations and Warranties
- Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
- Customer represents and warrants that (i) it has obtained and will continue to have, during the Term, all rights, authority and licenses necessary to access and use the Customer Materials in connection with the Subscription Services; (ii) Company’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party; (iii) it will comply with all applicable federal laws, regulations and rules including those that prohibit or restrict the export or re-export of the Subscription Services or any part thereof, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. The Customer further understands that the Subscription Services and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as outlined in this Agreement.
- Company represents and warrants that, to the extent, the Customer Materials include non-aggregated Personal Data, Company will process such data only for the period of time necessary to provide the Subscription Services, and in any case no longer than the Term of this Agreement, except where required under applicable law.
8. Indemnification
- Company Indemnification. The Company will defend Customer against any claim, suit, or proceeding brought by a third party (“Claims”) alleging that the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Company (including reasonable attorneys’ fees) resulting from such Claim. Notwithstanding the foregoing, Company will be under no obligation to defend, indemnify, or otherwise hold Customer harmless if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct, or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Company or Company’s continued Use of a prior version of the Subscription Services that has been superseded by a non-infringing version subsequently released by Company; (iv) modifications to the Subscription Services by anyone other than Company; or (v) combinations of the Subscription Services with software, data or materials not provided by Company.
- IP Remedies. Suppose the Company reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights. In that case, the Company may, at its sole option and expense, use commercially reasonable efforts to (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing or (ii) procure the right for Customer to continue Use. Suppose the Company determines that neither alternative is commercially practicable. In that case, the Company may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of such termination, the Company will refund the Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8(b) will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
- Customer Indemnification. Customer will defend, indemnify and hold Company harmless against all Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; or (C) any claim relating to the quality, accuracy or performance of the Customer Materials; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(c), and in each case, will indemnify and hold harmless Company against any damages and costs awarded against Company or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
- Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel, or if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
9. Disclaimer
The services and company IP are provided "as is," and the company makes no warranties or representations to customer, its authorized users, or any other party regarding the company IP or the services. To the maximum extent permitted by applicable law, the company hereby disclaims all warranties and representations, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose, or non-infringement, and any warranties arising out of course of dealing or usage of trade. Without limiting the foregoing, the company hereby disclaims any warranty that the use of the services will be error-free, bug-free, or uninterrupted.
10. Limitations of Liability
- Exclusion of Damages. Except for the parties' liability for fraud or wilful misconduct and the customer's liability for the breach of the company's intellectual property rights, the breach of the license granted to the customer hereunder, or the breach of the customer’s payment obligations, in no event will either party be liable for any incidental, special, exemplary, punitive or consequential damages, or any loss of income, data, profits, revenue or business interruption, or the cost of cover or substitute services or other economic loss, arising out of or in connection with this agreement, the company ip or the provision of the services, whether such liability arises from any claim based on contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not such party was advised of the possibility of such loss or damage.
- Total Liability. In no event will the company’s total and aggregate liability to the customer or its authorized users in connection with this agreement, the company IP, or the provision of the services exceed the fees paid by the customer to the company in the twelve (12) month period preceding the event giving rise to the claim, regardless of the legal or equitable theory on which the claim or liability is based, and whether or not company was advised of the possibility of such loss or damage.
- Basis of the Bargain. The parties hereby acknowledge and agree that the limitations of liability in this Section 10 are an essential part of the basis of the bargain between the company and the customer and will apply even if the remedies available hereunder are found to fail their essential purpose.
11. Term and Termination
- Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the subscription period for the Plan (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods equal to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party cancels or terminates the subscription in accordance with Section 11(b).
- Termination. Customers may decide to cancel their subscription at any time through their account on the Company’s website or mobile application. The customer understands that such cancellation will only take effect at the end of the then-current term, and no refund will be issued to the Customer under any circumstances. In addition to Company’s termination rights under Sections 3(c) and 8(b) of this Agreement, Company may terminate this Agreement, effective on written notice to Customer, if Customer materially breaches this Agreement, and such breach remains uncured thirty (30) days after the date of Company’s notice to Customer.
- Survival. This Section 11(c) and Sections 4(c), 5, 7, 8, 9, 10, 11(c), 11(d), 12, 14 and 16 survive any termination or expiration of this Agreement.
12. Trademarks
Client hereby grants Company a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks, and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation, and maintenance of the Subscription Services; and (ii) Company’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Company and case studies. All goodwill and improved reputation generated by the Company’s use of the Customer Marks ensures the exclusive benefit of the Customer. Company will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
13. Force Majeure
Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
14. Governing Law
For the contracts signed by iGenius Inc., this Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws, rules, or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. All disputes under this Agreement shall be submitted to the exclusive jurisdiction of the federal or state courts located in the County of Santa Clara, California, and the parties hereby waive any objection to the jurisdiction and venue of such courts.
For the contracts signed by iGenius S.p.A., this Agreement will be governed by and construed in accordance with the Italian law, without regard to or application of conflict of laws, rules, or principles. All disputes under this Agreement shall be submitted to the exclusive jurisdiction of the Court of Milan, and the parties hereby waive any objection to the jurisdiction and venue of such court.
15. Assignment
This Agreement, or any of its rights or any materials provided hereunder, may not be assigned or otherwise transferred by either party to any other person or entity, whether by operation of law or otherwise, without the other party's express written consent, which shall not be unreasonably withheld or delayed and any such attempted assignment not permitted by either party shall be void and of no effect; provided, however, that such consent of the other party shall not be required with respect to an assignment or transfer by either party to (i) any corporate affiliate of such party; or (ii) an acquirer of all or substantially all of the assets or capital stock of such party related to this Agreement, whether through purchase, merger, consolidation or otherwise. Any permitted assignment or transfer of or under this Agreement shall be binding upon and inure to the benefit of the successors, executors, heirs, representatives, administrators, and permitted assigns of the parties hereto.
16. General
All notices or approvals required or permitted under this Agreement will be in writing and delivered by confirmed email transmission, by overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. This Agreement (including any exhibit, annex, and appendix hereto) is the complete and exclusive understanding and agreement between the parties regarding its subject matter. It supersedes all proposals, understandings, or communications between the parties, oral or written, regarding its subject matter unless Customer and Company have executed a separate agreement governing the use of the Subscription Services. The parties to this Agreement are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. All notices or approvals will be sent to iGenius S.p.A. Via Principe Amedeo 5, 20121 Milan, Italy for notices to the Company and the email address associated with Customer’s account for notices to Customer. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Suppose any provision of this Agreement is held unenforceable or invalid. In that case, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect.
17. Support Services and Level
1. The Company will use commercially reasonable efforts to provide the following technical support services (“Support Services”):
- Electronic support through the available chat within the administrative section of the Company’s website designed to help the Customer locate and correct defects in the Subscription Services, with service available 8 hours a day, from Monday to Friday.
- Online support center available here 24 hours a day, 7 days a week for self-service technical assistance, including (i) viewing updates to supported platforms and hardware and (ii) accessing product documentation, technical articles, and FAQs.
2. Response Goals The Company will use commercially reasonable efforts to meet the following response goals: