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Terms of Service

Effective date December 6, 2022

These are the standard terms of service applicable to all AgileBrain users and customers.

The AgileBrain Terms of Service (“Agreement”) is entered into by and between Leading Indicator Systems, Inc. dba AgileBrain (“AgileBrain”) and the entity or person placing an order for or accessing the Service (“Customer” or “you”). This Agreement consists of the terms and conditions set forth below and any Orders, if applicable. If you are accessing or using the Service on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” reference your company. If you are accessing or using the Service on behalf of yourself personally, your use of the Service is subject to the terms of this Agreement.

The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service through any online provisioning, registration or order process or (b) the effective date of the first Order. This Agreement will govern Customer’s initial purchase on the Effective Date as well as any future purchases made by Customer that reference this Agreement. AgileBrain may modify this Agreement from time to time as permitted in Section 19 (Modifications to Agreement). Purchase from Reseller: If Customer purchases the Service from an authorized reseller of AgileBrain (“Reseller”), Customer’s use of the Service will be governed by this Agreement, subject to Section 19.14 (Reseller Orders) below. By indicating your acceptance of this Agreement or accessing or using the Service, you are agreeing to be bound by the terms and conditions of this Agreement. Each party expressly agrees that this Agreement is legally binding upon it.

Overview

AgileBrain offers a unique Service for emotional / motivational assessment that is designed to allow Users to measure emotional / motivational needs states using image-based assessments based on a focusing prompt. Users using the Service personally and Customers directing their clients (“Client Users”) to the Service maintain sole control over the timing of the invitation to the use, the prompt selected for the purposes of the assessment and the interpretation of the results generated by the Service and any resulting plans or actions taken as a consequence of such results.

The Service

Permitted Use

During the Subscription Term, Customer may access and use the Service only for its internal business or personal purposes in accordance with the Documentation and this Agreement, including any usage limits in an Order.

Users and User-Clients

Anyone accessing the Service is deemed a User and is subject to the terms of Service set forth herein. Users may access the Service via the public AgileBrain site to conduct self-assessments, the results of which they may save for future reference and share with others. Client Users may access the Service via the non-public AgileBrain site to conduct self-assessments, the results of which will automatically be shared with the referring Customer.

Customers and Customer Users

Customer is responsible for its employees’ and contractors’ (“Customer Users”) compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by AgileBrain’s breach of this Agreement). Each Customer User must keep its login credentials confidential and not share them with anyone else. Customer will promptly notify AgileBrain if it becomes aware of any compromise of its Customer Users login credentials.

Privacy

AgileBrain uses User assessment results and Customer User account information as described in its Privacy Policy.

Administrators

Customer may designate a Customer User as an administrator with control over Customer’s Service account, including management of Customer Users, as described in the Documentation. Customer is fully responsible for its choice of administrators and any actions they take.

Customer Affiliates

Customer’s Affiliates may use the Service as Customer Users. Alternatively, an Affiliate of Customer may enter its own Order(s) as mutually agreed with AgileBrain, and this creates a separate agreement between the Affiliate and AgileBrain that incorporates this Agreement with the Affiliate treated as “Customer.” Neither Customer nor any Customer Affiliate has any rights under each other’s agreement with AgileBrain, and breach or termination of any such agreement is not breach nor termination under any other.

Registration Using Corporate Email

If you created an account using an email address belonging to your employer or other entity, you represent and warrant that you have authority to create an account on behalf of such entity and further acknowledge that AgileBrain may share your email address with and control of your account may be taken over by such entity as the Customer. Upon such takeover, the administrator controlling the account may be able to (i) access, disclose, restrict or remove information from the account, (ii) restrict or terminate your access to the Service and (iii) prevent you from later disassociating such account from the Customer.

Access to Third Party Accounts

If you are invited to access a Customer’s account, you acknowledge that your access to that account as well as any assessment results generated thereby will be under the sole control of that other Customer.

Sharing Results

Through the Service you control who you share assessment results with. You understand and acknowledge that such results may be sensitive in nature. AgileBrain has no liability for how others may access or use assessment results as a result of your, your Client User’s or your Customer User’s decision to share such results.

Age Requirement for Users

The Service is not intended for, and may not be used by, anyone under the age of 16. By accessing the Service User attest that they are 16 years of age or older. Customer and Customer Users acknowledge that they are responsible for ensuring that all Client Users are at least 16 years old.

Restrictions

Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the Service to a third party, (b) use the Service on behalf of, or to provide any product or service to, third parties, (c) use the Service to develop a similar or competing product or service, (d) scrape, data mine, reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to or unauthorized data from the Service, except to the extent expressly permitted by Law (and then only with prior notice to AgileBrain), (e) modify or create derivative works of the Service or copy any element of the Service (other than authorized copies of the Software), (f) remove or obscure any proprietary notices in the Service or otherwise misrepresent the source of ownership of the Service, (g) publish benchmarks or performance information about the Service, (h) interfere with the Service’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the Service, (i) transmit any viruses or other harmful materials to the Service, (j) allow Customer Users to share Customer User seats, (k) engage in any fraudulent, misleading, illegal or unethical activities related to the Service or (l) use the Service to store or transmit material which contains illegal content.

Support

During the Subscription Term, AgileBrain will provide Support in accordance with the Support Policy, which is available upon request.

Customer Content

Data Use

Customer grants AgileBrain the non-exclusive, worldwide right to use, copy, store, transmit and display Client Users assessment results and to modify and create derivative works of such results (for reformatting or other technical purposes), but only as necessary to provide the Service, Support and any Technical Services to Customer under this Agreement and for research purposes, but only in aggregate, non-personally identifiable form.

Security

AgileBrain uses reasonable technical and organizational measures designed to protect the Service and Customer Content as described in the Security Policy.

Personal Data

Each party agrees to comply with the DPA.

Results Access

During the Subscription Term, Customer may print/download assessment results for the Client Users. After the Subscription Term, AgileBrain may delete Customer Content in accordance with its standard schedule and procedures. If Customer requests access to their assessment results after the Subscription Term, AgileBrain will charge a $25 fee per assessment result requested.

Customer Obligations

Generally

Customer is responsible for its use of the Service, including its Client Users and assessment results, and agrees to comply with Laws in using the Service. Customer represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its Client Users’ assessment result in the Service and grants AgileBrain the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the assessment results.

Prohibited Uses

Customer must not use the Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Service is not intended to meet any legal obligations for these uses, including HIPAA requirements, and that AgileBrain is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, AgileBrain has no liability for Prohibited Data or use of the Service for High Risk Activities.

Individual User Account Takeover

The Service may contain functionality allowing Customer to convert accounts previously registered by individuals using email addresses from Customer’s domain into Customer User accounts under Customer’s control. Customer represents and warrants that it has all necessary rights and consents to the extent it converts any existing accounts registered using email addresses from Customer’s domain into accounts under Customer’s control.

Suspension of Service

AgileBrain may suspend Customer’s, Customer User’s or User’s access to and use of the Service and related services if breaches occur under Section 2.8 (Age Requirement for Users), Section 2.9 (Restrictions) or Section 5 (Customer Obligations), if Customer’s account is 10 days or more overdue or if Customer’s or User’s actions risk harm to other customers or the security, availability or integrity of the Service. Where practicable, AgileBrain will use reasonable efforts to provide Customer with prior notice of the suspension. Once Customer resolves the issue requiring suspension, AgileBrain will promptly restore Customer’s or User’s access to the Service in accordance with this Agreement.

Third-Party Platforms

Customer may request to use the Service with Third-Party Platforms. Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. AgileBrain does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms or their providers use Customer Content. If Customer requests use of the Service with a Third-Party Platform, AgileBrain will estimate costs associated with development, integration and support of such request, which cost shall be paid by the Customer. Once integrated, AgileBrain may access and exchange Customer Content with the Third-Party Platform on Customer’s behalf.

Technical Services

Any purchased Technical Services are as described in the relevant Order. Customer will give AgileBrain timely access to Customer Materials reasonably needed for the Technical Services, and if Customer fails to do so, AgileBrain’s obligation to provide Technical Services will be excused until access is provided. AgileBrain will use Customer Materials only for purposes of providing Technical Services. Any Technical Services deliverables relate to the configuration or use of the Service and interpretation of assessment results. Customer may use Technical Services deliverables only as part of its authorized use of the Service, subject to the same terms as for the Service in Section 2 (The Service) and Section 5 (Customer Obligations).

Commercial Terms

Subscription Term

Unless otherwise specified in the applicable Order, each Subscription Term will renew for successive 12-month periods, unless either party gives the other party notice of non-renewal at least 90 days before the current Subscription Term ends. Upon notice of non-renewal, Customer will not be charged for the next billing cycle but will not receive any refunds or credits for amounts that have already been charged.

Fees and Taxes

Fees are as described in each Order. Customer will reimburse AgileBrain for pre-approved travel and lodging expenses it incurs in providing Technical Services. Fees are invoiced on the schedule in the Order and reimbursable expenses are invoiced in arrears. Customer agrees that AgileBrain may bill Customer’s credit card or other payment method for renewals, expenses and any other unpaid fees, as applicable. Customer may change its payment method information by entering updated information through the user interface of the Service or by providing updated information to an AgileBrain support professional. Unless the Order provides otherwise, all fees and expenses are due within 30 days of the billing date specified in the applicable Order. Fees for renewal Subscription Terms are at AgileBrain’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All fees and expenses are non-refundable except as set out in Section 10.2 (Warranty Remedy) and Section 14.4 (Mitigation and Exceptions). Customer is responsible for any sales, use, goods and services, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than AgileBrain’s income tax. Fees and expenses are exclusive of Taxes.

Warranties and Disclaimers

Limited Warranty

AgileBrain warrants to Customer that:

(a) the Service will perform materially as described in the Documentation and AgileBrain will not materially decrease the overall functionality of the Service during a Subscription Term (the “Performance Warranty”) and (b) AgileBrain will perform any Technical Services in a professional and workmanlike manner (the “Technical Services Warranty”).

Warranty Remedy

If AgileBrain breaches Section 10.1 (Limited Warranty) and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue, then AgileBrain will use reasonable efforts to correct the non-conformity. If AgileBrain cannot do so within 60 days of Customer’s warranty claim, either party may terminate the affected Order as relates to the non-conforming Service or Technical Services. AgileBrain will then refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Technical Services (for the Technical Services Warranty). These procedures are Customer’s exclusive remedy and AgileBrain’s entire liability for breach of the warranties in Section 10.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by Third-Party Platforms or other third-party systems or (c) Trials and Betas or other free or evaluation use.

Disclaimers

Except as expressly provided in Section 10.1 (Limited Warranty), the Service, Support, Technical Services and all related AgileBrain services are provided “AS IS”. AgileBrain and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. Without limiting its express obligations in Section 3 (Support), AgileBrain does not warrant that Customer’s use of the Service will be uninterrupted or error-free or that the Service will meet Customer’s requirements, operate in combination with third-party services used by Customer or maintain Customer Content without loss. AgileBrain is not liable for delays, failures or problems inherent in use of the Internet and electronic communications or other systems outside AgileBrain’s control. Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

Term and Termination

Term

This Agreement starts on the Effective Date and continues until 90 days after expiration or termination of all Subscription Terms.

Termination for Cause

Either party may terminate this Agreement (including all Orders) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

Termination for Convenience

Either party may terminate this Agreement (including all Orders) at any time for any reason upon 90 days’ notice to the other party, provided (i) Customer will not be entitled to a refund of any pre-paid fees and (ii) if Customer has not already paid all applicable fees for the then-current Subscription Term, any such fees that are outstanding will become immediately due and payable.

Effect of Termination

Upon expiration or termination of this Agreement or an Order, Customer’s access to the Service and Technical Services will cease, other than limited use of the Service to export Customer Content as described in Section 4.4 (Data Export). At the disclosing party’s request upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Content, which is addressed in Section 4.4). Customer Content and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions.

Survival

These Sections survive expiration or termination of this Agreement: 2.9 (Restrictions), 4.4 (Results Access), 5 (Customer Obligations), 9.2 (Fees and Taxes), 10.3 (Disclaimers), 11.4 (Effect of Termination), 11.5 (Survival), 12 (Ownership), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality), 16 (Required Disclosures), 20 (General Terms) and 21 (Definitions). Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

Ownership

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for Customer’s use rights in this Agreement, AgileBrain and its licensors retain all intellectual property and other rights in the Service, any Technical Services deliverables and related AgileBrain technology, templates, formats and dashboards, including any modifications or improvements to these items made by AgileBrain, including modifications made as part of an Order with Customer. AgileBrain may generate and use Usage Data to operate, improve, analyze and support the Service, to conduct research and publish findings using aggregate, non-personally identifiable data and for other lawful business purposes. If Customer provides AgileBrain with feedback or suggestions regarding the Service or other AgileBrain offerings, AgileBrain may use the feedback or suggestions without restriction or obligation.

Limitations of Liability

Consequential Damages Waiver

The disclaimer in this Section 13.1 (Consequential Damages Waiver) will not apply to the extent prohibited by Laws. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, revenues, goodwill, interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance.

Liability Cap

Except for Excluded Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to AgileBrain during the prior 12 months under this Agreement.

Excluded Claims

Excluded Claims” means: (a) Customer’s breach of Sections 2.9 (Restrictions) or 5 (Customer Obligations), (b) either party’s breach of Section 15 (Confidentiality) (but excluding claims relating to Customer Content), (c) amounts payable to third parties under Customer’s obligations in Section 14.2 (Indemnification by Customer), (d) either party’s willful misconduct or (e) AgileBrain’s performance of the Service that results in death, personal injury or damage to tangible property.

Nature of Claims and Failure of Essential Purpose

The waivers and limitations in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

Indemnification

Indemnification by AgileBrain

AgileBrain will defend Customer from and against any third-party claim to the extent alleging that the Service, when used by Customer as authorized in this Agreement, infringes a third party’s patent, copyright, trademark or trade secret, and will indemnify and hold harmless Customer against any damages or costs awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by AgileBrain resulting from the claim.

Indemnification by Customer

Customer will defend AgileBrain from and against any third-party claim to the extent resulting from Customer Content, Customer Materials or Customer’s breach or alleged breach of Section 5 (Customer Obligations) and will indemnify and hold harmless AgileBrain against any damages or costs awarded against AgileBrain (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.

Procedures

The indemnifying party’s obligations in this Section 14 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Service, when AgileBrain is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

Mitigation and Exceptions

In response to an actual or potential infringement claim, if required by settlement or injunction or as AgileBrain determines necessary to avoid material liability, AgileBrain may at its option: (a) procure rights for Customer’s continued use of the Service, (b) replace or modify the allegedly infringing portion of the Service to avoid infringement without reducing the Service’s overall functionality or (c) terminate the affected Order and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. AgileBrain’s obligations in this Section 14 do not apply (1) to the extent infringement results from Customer’s modification of the Service or use of the Service in combination with items not specified in the Documentation or provided by AgileBrain (including Third-Party Platforms), (2) to infringement resulting from Software other than the most recent release provided by AgileBrain, (3) to unauthorized use of the Service, (4) if Customer settles or makes any admissions about a claim without AgileBrain’s prior consent, (5) if Customer continues to use the Service (or any element thereof) after being notified of allegedly infringing activity or informed of modifications that would have avoided the alleged infringement or (6) to Trials and Betas or other free or evaluation use. This Section 14 sets out Customer’s exclusive remedy and AgileBrain’s entire liability regarding infringement of third-party intellectual property rights.

Confidentiality

Definition

Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. AgileBrain’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Service. Customer’s Confidential Information includes Customer Content.

Obligations

As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for AgileBrain, the subcontractors referenced in Section 20.9), provided it remains responsible for their compliance with this Section 15 and they are bound to confidentiality obligations no less protective than this Section 15.

Exclusions

These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.

Remedies

Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 15.

Required Disclosures

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Content and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

Trials and Betas

If Customer receives access to the Service or Service features on a free or trial basis or as an alpha, beta or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by AgileBrain (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that AgileBrain may never release, and their features and performance information are AgileBrain’s Confidential Information. Notwithstanding anything else in this Agreement, AgileBrain provides Trials and Betas “AS IS” with no warranty, indemnity or support and its liability for Trials and Betas will not exceed US$50.

Publicity

Neither party may publicly announce this Agreement except with the other party’s prior consent or as required by Laws. However, AgileBrain may include Customer and its trademarks in AgileBrain’s customer lists and promotional materials but will cease this use at Customer’s written request.

Modifications to Agreement

AgileBrain may modify this Agreement (which may include changes to Service pricing and plans) from time to time by giving notice to Customer by email or through the Service. Unless a shorter period is specified by AgileBrain (e.g., due to changes in the Law or exigent circumstances), modifications become effective upon renewal of Customer’s current Subscription Term or entry into a new Order. If AgileBrain specifies that the modifications to the Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies AgileBrain of its objection to the modifications within 30 days after the date of such notice, AgileBrain (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of this Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect) or (b) allow Customer to terminate this Agreement and receive a refund of any pre-paid Service fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

General Terms

Assignment

Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

Governing Law, Jurisdiction and Venue

This Agreement is governed by the laws of the Commonwealth of Massachusetts and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Boston, MA and both parties submit to the personal jurisdiction of those courts.

Attorneys’ Fees and Costs

The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.

Notices

Except as set out in this Agreement, any notice or consent under this Agreement must be in writing and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested) or (c) one day after dispatch if by a commercial overnight delivery service. If to AgileBrain, notice must be provided to Leading Indicator Systems, Inc. dba AgileBrain, 1 Franklin Street, Suite 2508, Boston, MA 02110. All notices to AgileBrain must include a copy emailed to legal@AgileBrain.com. If to Customer, AgileBrain may provide notice to the address Customer provided at registration. Either party may update its address with notice to the other party. AgileBrain may also send operational notices to Customer by email or through the Service.

Entire Agreement

This Agreement (which includes all Orders, the Policies and the DPA) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

Amendments

Except as otherwise provided herein, any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by AgileBrain. Nonetheless, with notice to Customer, AgileBrain may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease AgileBrain’s overall obligations during a Subscription Term. The terms in any past, contemporaneous or future Customer purchase order, business form or vendor management portal will not amend or modify this Agreement and are expressly rejected by AgileBrain; any of these documents are for administrative purposes only and have no legal effect.

Waivers and Severability

Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

Force Majeure

Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

Subcontractors

AgileBrain may use subcontractors and permit them to exercise AgileBrain’s rights, but AgileBrain remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

Independent Contractors

The parties are independent contractors, not agents, partners or joint venturers.

Export

Customer agrees to comply with all relevant U.S. and foreign export and import Laws in using the Service. Customer (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (b) agrees not to access or use the Service in violation of any U.S. export embargo, prohibition or restriction and (c) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations.

Open Source

The Software may incorporate third-party, open-source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

Government End-Users

Elements of the Service are commercial computer software. If the user or licensee of the Service is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Service was developed fully at private expense. All other use is prohibited.

Reseller Orders

This Section applies to any access to the Service purchased by Customer through a Reseller. (a) Commercial Terms. Instead of paying AgileBrain, Customer will pay applicable amounts to the Reseller as agreed between Customer and the Reseller. Customer’s order details (e.g., scope of use and fees) will be as stated in the Order placed by the Reseller with AgileBrain on Customer’s behalf. The Reseller is responsible for the accuracy of such Order. AgileBrain may suspend or terminate Customer’s rights to use the Service if it does not receive the corresponding payment from the Reseller. If Customer is entitled to a refund under this Agreement, AgileBrain will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to Customer, unless otherwise specified. (b) Relationship with AgileBrain. This Agreement is directly between AgileBrain and Customer and governs all use of the Service by Customer. Resellers are not authorized to modify this Agreement or make any promises or commitments on AgileBrain’s behalf, and AgileBrain is not bound by any obligations to Customer other than as set forth in this Agreement. AgileBrain is not party to (or responsible under) any separate agreement between Customer and Reseller and is not responsible for the Reseller’s acts, omissions, products or services. The amount paid or payable by the Reseller to AgileBrain for Customer’s use of the applicable Service under this Agreement will be deemed the amount paid or payable by Customer to AgileBrain under this Agreement for purposes of Section 13 (Limitations of Liability).

Definitions

Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

Customer Content” means any data, content or materials that Customer (including its Users) provides to AgileBrain or creates within or submits to the Service, including from Third-Party Platforms.

Customer Materials” means materials, systems and other resources that Customer provides to AgileBrain in connection with Technical Services.

“Client User” means any individual by referral as a Client User of a Customer or its Affiliate or Customer User permits or invites to use the Service, as further described in the documentation.

“Customer User” means any employee or independent contractor of a Customer using the Service, as further described in the documentation.

DPA” means the Data Processing Addendum between the parties, the current version of which is here.

Documentation” means AgileBrain’s user guidelines and standard technical documentation for the Service, which may be accessed via the Portal.

Event” means an AgileBrain assessment for a group of Client Users.

High Risk Activities” means activities where use or failure of the Service could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control.

Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.

Order” means any AgileBrain-provided ordering document, online registration, order description or order confirmation referencing this Agreement.

Policies” means the Privacy Policy, Security Policy and Support Policy.

Portal” means the access-controlled portion of the Service reserved for Customers and Customer Users to invite Client Users, create Events, review results and access resources in support of the Services.

Privacy Policy” means the Privacy Policy, the current version of which is here.

Prohibited Data” means any (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation, (b) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”), (c) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (PCI DSS), (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations), (e) social security numbers, driver’s license numbers or other government ID numbers or (f) any data similar to the above protected under foreign or domestic Laws.

Security Policy” means the Leading Indicator Systems Written Information Security Program for Protecting Personal and/or Confidential Information, which is available upon request.

Service” means AgileBrain’s proprietary cloud-based service, as identified in the relevant Order and as modified from time to time. The Service includes the Software and Documentation but does not include Technical Services deliverables or Third-Party Platforms.

Software” means any AgileBrain client software, scripts, apps or other code provided to Customer by AgileBrain for use with the Service.

Subscription Term” means the term for Customer’s use of the Service as identified in an Order.

Support” means support for the Service as described in the Support Policy.

Support Policy” means the AgileBrain Support Policy, the current version of which is available upon request.

Technical Services” means any training, enablement or other technical services provided by AgileBrain related to the Service, as identified in an Order.

Third-Party Platform” means any platform, add-on, service, product, app or integration not provided by AgileBrain that Customer requests and pays AgileBrain to integrate or enable for use with the Service.

Usage Data” means AgileBrain’s technical logs, usage and assessment results data and learnings about Customer’s use of the Service, but excluding Customer Content.

User” means any individual that accesses the Service, whether directly via a public site or by referral as a Client User of a Customer or its Affiliate or Customer User permits or invites to use the Service, as further described in the Documentation.

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