These Terms of Service (the “Terms”) constitute an agreement governing the use of the service provided by Effy AI OU, registered at Harju maakond, Tallinn, Lasnamäe linnaosa, Sepapaja tn 6, 15551, Estonia (the ”Effy AI”), to you or your organization (the “Customer”), and are effective as of the date you accepted or otherwise agreed to these Terms (the “Effective Date”). In these Terms, references to “we,” “us,” and “our” refer to Effy AI; “you,” “your,” and “yours” refer to the organization identified as the Customer.
If you use your employer’s or an entity’s email address to register for Service, please note that you are deemed an authorized representative and/or agent of your employer or the entity (as applicable).
1. Definitions
“Account” or “Workspace” is the primary means for accessing and using the Service, subject to payment of a fee designated in the selected plan.
“Admin” or “Workspace owner” means a User(s) of an Account for which the Customer has granted a special authorization to manage the Customer Account.
“Affiliates” means any entity that the party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity or has the power to direct the management of any policies of the subject entity. Any legal entity will be considered a party’s Affiliate if that interest or control is maintained.
“Beta Service” means services identified as alpha, beta, not generally available, limited release, developer preview, or any similar services offered by Effy AI that are made temporarily available to the customers for testing and evaluation.
“Customer” means a natural or legal person or entity who has accepted these Terms.
“Customer Data” means the content, information, and other data (including, as applicable, any confidential or personal information) uploaded to the Software, or otherwise transmitted by third-party service providers in connection with the use of the Service. Customer Data shall not contain Sensitive Information.
“Data Processing Addendum” or “DPA” means the agreement set forth at https://www.effy.ai/dpa, which explains how Effy AI processes Customer Data.
“Privacy Notice” means the notice, as set forth at https://www.effy.ai/privacy, which describes how Effy AI collects, receives, uses, stores, shares, transfers, and processes Customer Data concerning Customer’s use of the Services.
“Service” means the online software as a service (“Software”) and supporting services subscribed to and made available by Effy AI. To resolve the doubt, the Service includes implementation and configuration services, customer and technical support services, or other consultancy services or resources such as websites, content, and other materials.
“Sensitive Information” means credit or debit card numbers; financial account numbers or wire instructions; government-issued identification numbers (such as Social Security numbers or passport numbers), biometric information, personal health information (or other information protected under any applicable health data protection laws), personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable law relating to privacy and data protection.
“Sub-processor” means any third party, as set forth at https://www.effy.ai/sub-processors, which Effy AI uses to provide Service.
“Terms” refers to these Terms of Service, the DPA, and the Privacy Notice.
“Authorized Users” means each of the Customer’s employees, contractors, and other individuals whom you identify to us by name as being authorized to use the Service.
2. Access and Provision of the Service
Use of the Service
Subject to these Terms and the payment of the applicable fees, we hereby grant you a non-exclusive, non-sublicensable, non-transferable (except as provided herein) right (license), during the Term, to access and use the Service solely for your internal business purposes and under any Service documentation or product feature descriptions made available to you by us in tangible or electronic format. For the purpose of testing and evaluation, Effy AI may provide Customers with Beta Services.
These Terms are entered into for the benefit of the Customer and its Affiliates. Customer’s Affiliates are entitled to use the Services subject always to their compliance with these Terms. Customer retains ultimate liability for the acts and omissions of its Affiliates concerning the Services and these Terms, including but not limited to payment obligations hereunder and for the distribution of content submitted or processed through the Customer’s account by its Affiliates, including but not limited to Customer Data.
Updates of the Services
We reserve the right to update, modify, upgrade, or otherwise modify the Software at any time, with or without notice; however, we will provide advance notice of anticipated downtime when possible. We may suspend the provision of the Software at any time with reasonable notice (except in emergency cases relating to security or adverse impacts on the Service) for security or maintenance purposes or as required by applicable law. We will use commercially reasonable efforts to minimize the duration of any such suspension.
Authorized Users
Each Authorized User must be assigned a unique email address. A unique password will be provided for each Authorized User to enable such Authorized User to access the Service on your behalf under these Terms. We reserve the right to change passwords in case of a suspected Security Incident (as defined in the Data Processing Addendum) or breach of these Terms.
Each user’s credentials (email address and password) may not be shared and can only be used to access the Software during one concurrent login session. You acknowledge that it retains administrative control over who can access Customer Data hosted in the Services. You are responsible for maintaining the confidentiality of all passwords and for Authorized Users’ compliance with these Terms. You agree to notify us promptly of any actual or suspected unauthorized use of your Account or any other breach or suspected breach of these Terms.
Technical Support
Subject to the Terms hereof, we will use commercially reasonable efforts to make the Software available to you 24/7 under our maintenance and support practices, as set forth at https://www.effy.ai/sla.
Privacy Compliance and Information Security
Each party’s performance hereunder will be in compliance with such party’s privacy policy and all applicable privacy laws (including, without limitation, as applicable, United States, Canada and European Economic Area), rules, and regulations. Personal information transmitted, entered or otherwise uploaded by you and your Authorized Users to the Service will be processed in accordance with our Privacy Notice available at https://www.effy.ai/privacy, Data Processing Addendum available at https://www.effy.ai/dpa, and all applicable laws. Our DPA is hereby incorporated by reference and forms an integral part of these Terms. We will maintain appropriate administrative, technical, and procedural safeguards designed to protect the security, confidentiality and integrity of all Customer Data, as set forth at https://www.effy.ai/security.
3. Ownership
Company Properties
As between you and us, the Service and all content therein, excluding Customer Data (collectively, the “Company Properties”), any all and all modifications, enhancements, upgrades and updates thereto, and all copyrights, trademarks, service marks, trade secrets, patents and other intellectual property rights therein (registered or unregistered), are the exclusive property of us and our suppliers. All rights in and to Company Properties not expressly granted to you in these Terms are reserved by us and our suppliers. For the avoidance of doubt, these Terms do not grant you any right to copy, transmit, transfer, modify or create derivative works of the Company Properties, or reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Company Properties, or any other right in or to the Company Properties not specifically set forth herein.
Customer Data
You are the owner of Customer Data. You hereby grant us a non-exclusive, worldwide, royalty-free, and fully paid license during the term to use the Customer Data as necessary to provide the Service to you. Notwithstanding the foregoing license, we have no obligation to process, render, prepare or produce the Customer Data in any manner or format other than as described in the documentation or offered as standard functionality of the Software you subscribe to. To avoid doubt, you understand and agree that we are not obligated to provide or support customized reporting, uploads, or extractions of Customer Data. You are responsible for the accuracy, quality and legality of Customer Data, how you acquired Customer Data, your use of Customer Data with the Service and your interoperation of any Customer Data with the Service.
Anonymized, Aggregated Data
We automatically collect certain usage data and information generated by, submitted, or uploaded to the Software relating to certain user actions taken in the Software, such as the number of times users access or use certain Software features such as the number of reviews or created forms by an Authorized User. We process such data for the purpose of generating anonymized, aggregated statistical data. Such anonymized, aggregated statistical data is used for benchmarking purposes, as well as to maintain, secure, and improve our products and services. Such data does not contain any text narrative which is or was part of Customer Data or information that can be used to identify Customer, an Authorized User, or any individual.
Feedback
You grant us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our Services any suggestions, enhancement request, recommendation, correction or other feedback provided by you or your Authorized Users relating to the operation of the Company or the Service.
4. Customer Responsibilities
Use Restrictions
You will not, and will not permit any Authorized User to: (a) permit any person or entity to access the Service, other than Authorized Users to the extent authorized under these Terms; (b) use the Service except in accordance with these Terms, the Documentation and applicable law; (c) modify, adapt, alter, or copy the Service; (d) sell, resell, license, distribute, rent or lease the Service, or include the Service in a service bureau or outsourcing offering; (e) use the Service to store or transmit any “viruses,” “worms,” “Trojan horses,” “e-mail bombs,” “cancelbots” or other harmful computer code, files, scripts, agents or programs; (f) use the Service to store or transmit deceptive, infringing, defamatory or otherwise unlawful or tortious materials, or to store or transmit material in violation of (i) third-party privacy or other rights, or (ii) confidentiality obligations to third parties; (g) access the Service in order to build a competitive product or service; (h) interfere with or disrupt the integrity or performance of the Company Properties; or (i) attempt to gain unauthorized access to the Company Properties.
Required Equipment
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to the Internet in order to access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like, excluding the equipment and technology necessary for us to host and make the Service available to you.
Compliance with Law
You understand and agree that at all times during the term you will comply with all applicable laws and regulations in connection with your own activities performed under these Terms or otherwise related to your use of the Software or Service. You further understand and agree that it may be possible for you to configure or use certain products of the Software or Service in manners that do not comply with applicable laws or regulations, and at all times during the term it is your sole responsibility to ensure that your use and your Authorized Users’ use of the Software and Service is in accordance and compliance with applicable laws and regulations, and that in no event will we be responsible or liable for your failure to comply with an applicable law or regulation in connection with or related to your use of the Software or Service.
Employment Decisions
You acknowledge and agree that we exercise no control over any employment or human resource practices or actions you implement or execute using the Software or Service, nor any your decisions or actions with regard to employment, promotion, advancement, termination, notification, or compensation of any employee, contractor, or Authorized User of the Software or Service. Further, you acknowledge and agree that we do not have a direct relationship with your employees, contractors, or Authorized Users, and that as between you and us, you are solely responsible for all communication and data collection with and from your employees, contractors, and Authorized Users.In addition to the foregoing, you acknowledge, understand, and agree that at all times during the Term with regard to any employment offers or total rewards summaries you provide to any candidates, employees, contractors, or other Authorized Users, you are solely responsible for ensuring that the appropriate and necessary information and terms for each such employment offer and total rewards summary you provide are complete and accurate.
Export Compliance
You represent that you are not named on any United States or Europe Union government denied-party list. You agree not to export, re-export, or transfer, directly or indirectly, any technical data acquired from us, or any products utilizing such data, in violation of United States or Europe Union export laws or regulations. You will not permit any Authorized User to access or use the Software (i) if such person is a resident of a country embargoed by the United States or Europe Union, (ii) if such person is a person or entity blocked or denied by the United States or Europe Union government, or (iii) otherwise in violation of United States or Europe Union export laws or regulations.
5. Confidentiality
Definition
Each party may have access to the other party’s information, which will be deemed “Confidential Information” if identified as such by the disclosing party or if the information by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information that provides a competitive advantage. Your Confidential Information includes Customer Data; Confidential Information of the Company includes all non-public aspects of the Service and these Terms.
Standard of Care
The receiving party will use the same degree of care as it uses to protect its own Confidential Information of a like nature, but not less than a reasonable degree of care, to (a) prevent use or copying of the disclosing party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights as provided under these Terms, and (b) prevent disclosure of the disclosing party’s Confidential Information other than to its employees (or agents bound by similar confidentiality obligations) with a need to access the Confidential Information for purposes consistent with these Terms. Confidential Information will remain the property of the disclosing party and will be returned or (along with all copies) destroyed upon request, at which time the receiving party will provide to the disclosing party a written certification of such return or destruction. Without limiting any other provision of these Terms, with respect to its obligations under this Section 5, the receiving party will be responsible for the acts and omissions of its employees, contractors and agents to the same extent as if those acts and omissions were those of the receiving party. The parties acknowledge, intend, and agree that this Section 5 and the obligations set forth herein supersede any and all prior confidentiality, non-disclosure, or similar agreements between the parties.
Exceptions
Information will not be deemed Confidential Information hereunder if it: (i) is information that becomes generally known to the public through no fault of the receiving party, its affiliates or their agents or representatives; (ii) is or becomes known to the receiving party without restriction from a third party other than as a result of breach of contract or wrongful or tortious act; or (iii) is independently developed by the receiving party without reference to or reliance on the disclosing party’s Confidential Information. Confidential Information may be disclosed to the extent required by applicable law, regulation, or court order or judicial decree, provided the disclosing party is given reasonable advance notice of such disclosure.
6. Payment of fees
Fees
You will pay us the fees set forth at https://www.effy.ai/pricing in accordance with the terms therein (the “Fees”). All Fees are non-refundable. For purposes of clarity, there are no refunds or credits for periods where the Customer did not use an activated Account, used it only partially, deactivated the Account or terminated these Terms during an ongoing payment interval. Any fees per Authorized User will apply with respect to the initial number of Authorized Users plus any additional Authorized Users added during a Service term. Fees for additional Authorized Users will be prorated through the end of the current Service term.
Payment
If you pay your Fees by credit card, you hereby authorize us and our third-party payment service providers to collect all due and payable Fees using the credit card or other payment method you provide to us, and you must keep the payment method and other billing information you provide to us current at all times; any change in such method or information will not affect charges we submit via the prior payment method and information before we reasonably could act on the change.
Taxes
Fees do not include any taxes, levies, duties, export or import fees, or other governmental assessments of any nature, including but not limited to value-added sales, use or withholding taxes, imposed or assessed by any jurisdiction. You are responsible for the payment of all applicable Taxes (other than Taxes assessable against us based on our income, property, franchise or employment) associated with your subscription to the Service. You agree to cooperate with us and provide us with timely and accurate information as may be required for the calculation and withholding of applicable Taxes. If we have a legal obligation to collect and remit Taxes for which you are responsible, we will invoice you and you will pay us that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Warranties and Disclaimer
Each party represents that it has validly entered into these Terms and any resulting agreement and is not subject to any agreements that conflict with the undertakings provided hereunder.We hereby warrant that during the Term:
- we own, or otherwise properly license, the Software, and the Service, and have the full power and authority required to use, publish, transfer, and/or license any and all rights and interests in and to the Software and Service to you;
- we shall provide and perform all Software and Service in a professional and workmanlike manner in accordance with prevailing industry standard and practices for similar enterprise software as a service;
- all Software, Service, Company Properties, and any other content provided to you under these Terms shall comply with applicable law.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SERVICE, SOFTWARE, AND ALL COMPANY PROPERTIES ARE PROVIDED “AS IS,” AND NEITHER PARTY MAKES AND WE SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WE DO NOT WARRANT THAT THE SERVICE, SOFTWARE, OR COMPANY PROPERTIES WILL BE ERROR-FREE OR UNINTERRUPTED. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY ERRORS OR INACCURACIES IN DATA OR CUSTOMER CONTENT PROVIDED BY YOU OR ANY OF YOUR AUTHORIZED USERS IN CONNECTION WITH YOUR USE OF THE SERVICE OR SOFTWARE, INCLUDING ANY REPORTS, ANALYSIS, OR ANY OTHER OUTPUTS PRODUCED OR DERIVED THEREFROM. YOU UNDERSTAND AND AGREE THAT WE ARE NOT RENDERING ANY LEGAL, TAX, BENEFIT, ACCOUNTING, OR INVESTMENT ADVICE IN CONNECTION WITH PROVIDING THE SERVICE AND SOFTWARE AND WE WILL NOT BE DEEMED TO BE A FIDUCIARY OR THE EMPLOYER OR JOINT EMPLOYER OF YOUR AUTHORIZED USERS, EMPLOYEES, OR CONTRACTORS FOR ANY PURPOSE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR THE USE, STORAGE, COLLECTION, OR MAINTENANCE OF PROTECTED HEALTH INFORMATION (“PHI”) AS DEFINED BY THE HEALTH INSURANCE PORTABILITY AND AFFORDABILITY ACT (“HIPAA”), THAT WE ARE NOT A COVERED ENTITY OR BUSINESS ASSOCIATE AS DEFINED UNDER HIPAA, AND THAT THE CUSTOMER CONTENT WILL BE FREE OF ANY PHI YOU WILL NOT UPLOAD OR STORE PHI IN THE SOFTWARE OR SERVICE. FOR THE AVOIDANCE OF DOUBT, WE DO NOT PROVIDE CUSTOMERS WITH AND WILL NOT PROVIDE YOU WITH LEGAL ADVICE REGARDING COMPLIANCE, DATA PRIVACY, OR ANY OTHER APPLICABLE LAWS OR REGULATIONS, AND ANY STATEMENTS MADE BY US IN RELATION TO YOUR USE OF THE SOFTWARE OR SERVICE DOES NOT AND WILL NOT CONSTITUTE LEGAL ADVICE. ACCORDINGLY, YOU AGREE THAT WE ARE NOT LIABLE FOR ANY CLAIMS ARISING FROM ANY ADVICE PROVIDED BY US IN CONNECTION WITH THE SERVICES. IMPLEMENTATION AND ADVISORY SERVICES ARE PROVIDED AT YOUR OWN RISK. FURTHER, ANY CONFLICTING TERM HEREIN NOTWITHSTANDING, WHERE APPLICABLE, COMPLIMENTARY SERVICES ARE ACCEPTED BY CUSTOMER AS-IS AND ARE NOT SUBJECT TO ANY SERVICE LEVEL AGREEMENT OR PRODUCT PERFORMANCE WARRANTIES.
You hereby warrant that:
- you own, or otherwise properly license, the Customer Data;
- you have the full power and authority to make the license grants hereunder;
- your use of the Software and Service and any Customer Data disclosed to us or uploaded to the Software under these Terms will comply with any applicable law; and
- any Customer Data provided to us in relation to your use of the Service or Software is accurate and complete to the best of your knowledge.
8. Limitation of Liability
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, USE OR PROFIT, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE SERVICE OR THESE TERMS WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE INITIAL EVENT CAUSING OR RESULTING IN SUCH LIABILITY. REGULATIONS AND JUDICIAL PRECEDENT IN CERTAIN STATES LIMIT THE MAXIMUM AMOUNT THAT DAMAGES CAN BE LIMITED BY OPERATION OF CONTRACT. IF UNDER SUCH CIRCUMSTANCES, THE FOREGOING LIMITATION OF LIABILITY IS DEEMED INEFFECTIVE AS A MATTER OF LAW, IT SHOULD INSTEAD BE CONSTRUED TO LIMIT LIABILITY TO THE MINIMUM AMOUNT THAT WOULD BE CONSISTENT WITH SUCH LAWS OR PRECEDENT WHILE STILL GIVING EFFECT TO THE INTENTION OF THIS CLAUSE. EACH PARTY ACKNOWLEDGES THAT IT HAS ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. Dispute Resolution
The parties will attempt in good faith to resolve any dispute arising out of or relating to the Service or these Terms by negotiation. In the event a mutually acceptable resolution cannot be reached within a reasonable time, either party will be entitled to seek all available remedies, including legal remedies subject to the terms and conditions set forth below.
USA/Canada
For Customers domiciled in the United States or Canada, any dispute arising from or relating to the subject matter of these Terms shall be finally settled by arbitration in New York, NY, using the English language in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in the United States Federal Courts located in New York, NY and (b) the laws of the State of Delaware as the governing law, without giving effect to any principles of conflicts of law. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of these Terms, including without limitation, this section. The parties each agree that it shall bring any dispute against the other in its respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, the parties each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
UK/Gibraltar
For Customers domiciled in the United Kingdom and Gibraltar, all disputes arising out of or in connection with the Terms, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Arbitration Rules”) by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, appointed in accordance with the Arbitration Rules. The place of the arbitration shall be London, England. The language of the arbitration shall be English. The arbitration shall be commenced by a request for arbitration by either party, delivered to the other party. The request for arbitration shall set out the nature of the claim(s) and the relief requested. Except as otherwise specifically limited in these Terms, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards shall be kept confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, or (v) by order of the arbitral tribunal upon application of a party. The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees, as the arbitral tribunal shall deem reasonable. Any award of the arbitral tribunal shall be final and binding on the parties. Enforcement of any award may be sought in any court of competent jurisdiction. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in England and (b) the laws of England as the governing law, without giving effect to any principles of conflicts of law.
EU/Rest of World
For Customers domiciled in the European Union, the European Economic Area or all other countries not specifically referenced in these Terms, all disputes arising out of or in connection with the Terms, including any question regarding its existence, validity or termination, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “Arbitration Rules”) by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, appointed in accordance with the Arbitration Rules. The place of the arbitration shall be Harju County, Tallinn, Estonia. The language of the arbitration shall be English. The arbitration shall be commenced by a request for arbitration by either party, delivered to the other party. The request for arbitration shall set out the nature of the claim(s) and the relief requested. Except as otherwise specifically limited in these Terms, the arbitral tribunal shall have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief, and any such measures ordered by the arbitral tribunal shall, to the extent permitted by applicable law, be deemed to be a final award on the subject matter of the measures and shall be enforceable as such. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or injunctions, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards shall be kept confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration, (iv) where such information is already in the public domain other than as a result of a breach of this clause, or (v) by order of the arbitral tribunal upon application of a party. The arbitral tribunal may include in its award an allocation to any party of such costs and expenses, including lawyers’ fees, as the arbitral tribunal shall deem reasonable. Any award of the arbitral tribunal shall be final and binding on the parties. Enforcement of any award may be sought in any court of competent jurisdiction. For all purposes of these Terms, the parties consent to (a) exclusive jurisdiction and venue in Harju County, Tallinn, Estonia and (b) the laws of Estonia as the governing law, without giving effect to any principles of conflicts of law.
Limitations Period
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms or the use of the Service must be filed or otherwise commenced within two years after such claim or cause of action arose or be forever barred.
Injunctive Relief
Notwithstanding any other provision hereof, either party may seek to enforce its rights hereunder with respect to the protection of its Confidential Information or intellectual property through temporary or permanent injunctive relief, which will be in addition to any other available relief and which will not require a bond or security. Each party acknowledges that any breach by a party of its obligations hereunder with respect to the Confidential Information or intellectual property rights of the other party might constitute immediate, irreparable harm to such other party for which monetary damages would be an inadequate remedy.
10. General
Notice
All notices and other communications given or made pursuant to these Terms will be in writing and will be deemed effectively given upon the earliest of (i) actual receipt, (ii) personal delivery to the recipient, or (iii) any of the following if addressed to the recipient as set forth below: (a) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. For purposes hereof, each recipient’s address and email address will be as set forth in the Order Form (or, with respect to your addresses, as provided by you during registration or onboarding with the Service), as such contact information may be subsequently modified by the recipient by written notice given in accordance with this paragraph. We may provide notices to you using the electronic messaging system included in the Service, in which case such notice will be deemed given when sent, if sent during your normal business hours, and if not sent during such normal business hours, then on your next business day.
Assignment
Neither party may assign or otherwise transfer these Terms or any rights or obligations hereunder without the written consent of the other party, except that either party may, without such consent, assign or transfer these Terms to an Affiliate or a purchaser of all or substantially all of its assets or to a successor organization by merger, consolidation, change of control, conversion or otherwise. These Terms are binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
Force Majeure
Neither party will be liable for any delay or failure to perform its obligations hereunder (other than any obligation to make a payment) resulting from any cause beyond such party’s reasonable control, including pandemic, weather, fire, floods, labor disputes, riots or civil disturbances, acts of government, and acts of war or terrorism, provided that, in every case, the delay or failure to perform is beyond the control and without the fault or negligence of the party claiming excusable delay and that such party cures the breach as soon as possible after the occurrence of the unforeseen event.
Public Announcements
You grant us the right to use your name, logo, trademarks and/or trade names in press releases, webpages, product brochures and financial reports indicating that you are a customer of ours. All other public statements or releases will require the mutual consent of the parties.
Relationship of Parties
Neither these Terms nor the cooperation of the parties contemplated under these Terms will be deemed or construed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
Waiver
Any provision of these Terms may be waived only in a writing signed by the party to be bound thereby. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability
If any provision of these Terms is, for any reason, held to be invalid, illegal, or unenforceable, the other provisions of these Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Construction
These Terms will be construed as a whole, according to its fair meaning, and not in favor of or against any party. Headings are used for reference purposes only and should be ignored in the interpretation of these Terms. All pronouns will be interpreted to refer to the masculine, feminine or neutral gender as appropriate. Whenever the words “include,” “includes” or “including” are used in these Terms, they will be deemed to be followed by the words “without limitation.”
Amendments
No amendment of these Terms will be effective unless contained in a written agreement signed by both parties that specifically purports to amend these Terms.
