EACH TIME YOU USE OR ACCESS THE SERVICE (DEFINED BELOW), EXECUTE OR SUBMIT AN ORDER, OR BY OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT (DEFINED BELOW), YOU AGREE TO BE BOUND BY THIS AGREEMENT AND REPRESENT AND WARRANTY TO ONE TECH (DEFINED BELOW) THAT YOU HAVE READ AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN AND AGREE TO BE LEGALLY BOUND BY THEM. IF YOU DO NOT UNDERSTAND OR AGREE TO BE BOUND BY (OR CANNOT COMPLY WITH) THIS AGREEMENT, DO NOT USE OR ACCESS THE SERVICE. YOUR CONTINUED ACCESS AND USE OF THE SERVICE SHALL BE DEEMED TO CONSTITUTE YOUR AGREEMENT TO BE LEGALLY BOUND BY THIS AGREEMENT, AS THEY MAY BE AMENDED FROM TIME TO TIME, AND YOUR UNDERSTANDING THAT THIS AGREEMENT IS LEGALLY ENFORCEABLE AGAINST YOU.
IF YOU ARE USING A SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A LEGAL ENTITY, YOU ACKNOWLEDGE THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT FOR AND BIND SUCH LEGAL ENTITY IN ORDER TO ACCEPT THE TERMS HEREOF, AND YOU REPRESENT AND WARRANT TO ONE TECH THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED HEREUNDER ARE EXPRESSLY CONDITIONED UPON SUCH ACCEPTANCE. ANY REFERENCES HEREIN TO “CUSTOMER”, “YOU” AND “YOUR” REFER TO BOTH YOU AND SUCH PERSON AND ENTITY ON WHOSE BEHALF YOU ACT, IF ANY.
AGREEMENT
This ONE Tech, Inc. Terms of Service (“Agreement”) is entered into by and between ONE Tech (defined below) 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 attachments, addenda or exhibits referenced herein, and any Order that reference this Agreement.
The “Effective Date” of this Agreement is the date which is the earlier of: (1) your initial access to the Service through any online provisioning, registration or order process or (2) the effective date of the first Order referencing this Agreement. This Agreement will govern your initial purchase of the Service on the Effective Date as well as any future purchases of a Service made by you that expressly reference this Agreement.
One Tech may update this Agreement and product pricing from time to time. Unless otherwise specified by ONE Tech in writing, such updates become effective for Customer upon the earlier of: (a) Customer’s renewal of the then-current Subscription Term (defined below), (b) Customer’s entry into a new Order after the updated version goes into effect or (c) Customer’s continued use of the Service after the updated version goes into effect. ONE Tech will use reasonable efforts to notify Customer of the changes through communications via Customer’s Account (defined below), email or other means.
1. ACCESS AND USE OF SERVICE
1.1 Service Provision and Access Rights; Client Software. ONE Tech will make the Service available to Customer for the Subscription Term solely for use by Customer and its Users in accordance with the terms and conditions hereof, the Documentation, and the Order. Subject to the terms of this Agreement and the Documentation, ONE Tech grants you a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive right to access and use the Service, solely for your internal business purposes, during the Subscription Term. You may allow your employees, agents, contractors, and end users authorized by you to use the Service (“Your Users”) in accordance with this Agreement, and you are responsible for ensuring that all access and use of the Service by any of Your Users is in accordance with this Agreement. You are liable for the acts and omissions of Your Users and any and all activity on the Service arising from any of Your Users’ login credentials. To the extent use of a Service requires Customer to install Client Software, ONE Tech grants to Customer a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the object code form of the Client Software solely for your internal business purposes in connection with Customer’s and its Affiliates use of the Service, subject to the terms and conditions hereof and the Documentation.
1.2 Affiliates. Customer Affiliates may purchase services from ONE Tech by executing an Order which is governed by the terms hereof. This will establish a new and separate agreement between the Customer Affiliate and the ONE Tech entity signing such Order.
1.3 Compliance with Applicable Laws. ONE Tech will provide the Service in accordance with its obligations under laws and government regulations applicable to ONE Tech’s provision of the Service to its customers generally, without regard to Customer’s particular use of the Service and subject to Customer’s use of the Service in accordance with this Agreement.
1.4. Customer-Controlled Data Sharing Functionality.
(a) Generally. The Service includes the ca pability for Customer, at its option and in its sole discretion, to share Customer Data with other Customer-designated ONE Tech customers and/or Read Only Users (defined below), and to access or use data from other ONE Tech customers, as further described in the Documentation. The ONE Tech customer sharing its data is a “Provider,” and the ONE Tech customer accessing or using shared data is a “Consumer.”
(b) Customer As Provider. Provider may, at its option and in its sole discretion, grant Consumer access to designated sets of Provider’s Customer Data as further described in the Documentation. Provider acknowledges and agrees that: (1) Consumers will have the access designated by Provider (including to view, download, and query the Customer Data) and that it is Provider’s sole responsibility to evaluate any risks related to its sharing of Customer Data with Consumers; and (2) ONE Tech has no control over, and will have no liability for, any acts or omissions of any Consumer with respect to Provider’s sharing of Customer Data. At all times Provider remains responsible for its Customer Data as set forth herein.
(c) Customer As Consumer. By accessing or using Provider’s data, Consumer acknowledges that (1) ONE Tech has no liability for such data or Consumer’s use of such data, (2) ONE Tech may collect information about Consumer’s use of and access to the Service and to Provider’s data (including identifying Consumer in connection with such information) and share it with Provider.
(d) Reader Accounts. When Customer is Provider, Customer may, at its option and in its sole discretion (using a mechanism provided by ONE Tech) authorize third party entities that are not currently ONE Tech customers (“Read Only Consumers”) to access a read-only account on the Service as further described in the Documentation (“Reader Accounts”) solely to consume Customer Data shared by Customer; provided that: (1) Customer shall be responsible for paying for any usage of the Reader Accounts; (2) Users authorized to access the Reader Account (“Read Only Users”) shall be prohibited from uploading any data into the Reader Accounts; (3) such Read Only Users must submit support requests as may be reasonably requested from time to time by ONE Tech; (4) Customer represents that it has the right to share with ONE Tech any personal information about Read Only Users that Customer provides to ONE Tech; (5) Customer shall be responsible for any acts or omissions on the part of Read Only Users in their use of the Reader Accounts as if they were acts or omissions of Customer; and (6) the following sentence is added to Section 11.2 hereof: “Customer will defend, indemnify, and hold harmless ONE Tech from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) brought by any Read Only Consumers or Read Only Users or arising from or relating to any acts or omissions by Read Only Consumers or Read Only Users in their use of the Reader Accounts.”
1.5 General Restrictions. Customer will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Service (or Deliverables, if applicable) to any third party (except as set forth in the Documentation for Service features expressly intended to enable Customer to provide its third parties with authorized access to Customer Data) or in a service bureau or outsourcing offering; (b) use the Service to provide, or incorporate the Service into, any general purpose data warehousing service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to ONE Tech); (d) remove or obscure any proprietary or other notices contained in the Service; (e) use the Service in violation of the Acceptable Use Policy (incorporated herein by this reference), (f) violate any applicable laws, rules or regulation in connection with your access or use of the Service, (g) use the Service for creating a product, service or software that is, directly or indirectly, competitive with or in any way a substitute for any services, products or software offered by ONE Tech, (h) make any modification, adaption improvement, enhancement, translation or derivative work of the Service (or any components thereof), (i) use the Service for any purpose for which is it not designed or intended, (j) circumvent, disable or tamper with any security-related components or other protective measures applicable to the Service, (k) send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs within the Service or any components thereof; (l) interfere with or disrupt the integrity or performance of the Service or any components thereof; (m) collect, store, or transmit any personally identifiable data or any other personal or protected data or information on or to the Service; (n) use the Service to collect, store, or transmit any military, national security, critical infrastructure or other sensitive data or information; (o) attempt to gain unauthorized access to the Service or any component thereof, or (p) use the Service in violation of any terms and conditions required by: (w) providers of Third Party Functionality (defined below), (x) the manufacturer and other providers of a Device and its hardware and software components and operating system, (y) the applicable wireless service agreement for your wireless plan and (z) any applicable open source or third party software licenses. None of the terms and conditions in (w) through (z) will have the effect of limiting, encumbering or otherwise restricting ONE Tech’s rights and remedies or your obligations under this Agreement. These provisions survive termination of this Agreement.
1.6 Third Party and/or Open Source Software and Content. The Service may incorporate, utilize, access or include software, products, information, functionality or content that is not developed or owned by One Tech, but instead, provided by third parties and subject to open source and third party terms and conditions, including, without limitation, open source code (“Third Party Functionality“). You acknowledge and agree that Your use of the Service and your right to use such Third Party Functionality as part of the Service is subject to and is governed by the terms and conditions applicable to such Third Party Functionality, including, without limitation, any applicable acknowledgements, license terms and disclaimers contained therein and the third party’s privacy policy (“Third Party Terms“). In the event of a conflict between the terms of this Agreement and the Third Party Terms, the Third Party Terms will control with regard to your use of the relevant Third Party Functionality. In no event will the Service or components thereof be deemed to be “open source” or “publicly available” software. Your use of the Third Party Functionality is at your sole risk, and One Tech, its collaborators, suppliers, and licensors shall have no liability to you for information, material or subject matter contained in the Service that is found to be incomplete, inaccurate, offensive, indecent, or objectionable. You agree that you will not use Third Party Functionality in a manner that would infringe or violate the rights of any other party, and that One Tech and its collaborators, suppliers, and licensors are not in any way responsible for any such use by You. One Tech reserves the right to restrict or deny access to any Third Party Content and Services otherwise accessible through the Service, although One Tech has no obligation to restrict or deny access even if requested by you.
1.7 User with Devices. You are responsible for ensuring that your Device is compatible with the Service. One Tech does not warrant that the Service will be compatible with your Device. You acknowledge that compatibility and interoperability problems can cause the performance of your Device to diminish or fail completely, and may result in permanent damage to your Device, loss of the data located on your Device, and corruption of the software and files located on your Device. Accordingly, You acknowledge and agree that One Tech and its collaborators, suppliers and licensors, and their officers, directors, employees and agents, shall have no liability to you for any losses suffered, resulting from or arising in connection with compatibility or interoperability problems.
1.8 Accounts, Passwords and Security. In order to use the Service, You must provide a unique user login and password to each of Your Users (“Credentials“). You are responsible for maintaining the confidentiality of the Credentials and for all activities, charges and/or liabilities that occur from any access using the Credentials, whether or not authorized by You. You must immediately notify One Tech of any unauthorized use of any Credentials or any other breach of security of which You become aware. One Tech will not be liable for any loss or damage arising from your failure to comply with this section.
1.9 Necessary Disclosure and Consents. You agree to make any and all necessary disclosures and obtain any and all necessary consents from individuals, including, without limitation, Your Users, regarding the collection, disclosure, processing, transfer or use of any data or information by One Tech as contemplated under this Agreement. In connection with providing such disclosures and obtaining such consents, you will comply with applicable laws, rules and regulations to ensure that such individuals have provided the informed consent required by law.
2. CUSTOMER DATA
2.1 Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title and interest in and to the Customer Data and any modifications made thereto in the course of the operation of the Service as provided to ONE Tech. Subject to the terms hereof, Customer hereby grants to ONE Tech and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Service to Customer, to prevent or address service or technical problems, or as may be required by applicable laws and government regulations.
2.2. Use Obligations.
(a) In General. Customer’s use of the Service and Customer Data will comply at all times with applicable laws and government regulations, and the DPA. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to ONE Tech that Customer has and will have sufficient rights in the Customer Data to grant the rights to ONE Tech hereunder and that the Customer Data will not violate the rights of any third party.
(b) No HIPAA Data. Customer represents and warrants to ONE Tech that it will not upload any HIPAA Data to the Service. In addition, Customer acknowledges and agrees that ONE Tech will have no liability to Customer or any third party hereunder for HIPAA Data, notwithstanding anything to the contrary herein or in HIPAA or any similar federal or state laws, rules or regulations. Customer will defend, indemnify, and hold harmless ONE Tech from and against any and all claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) brought by any party arising from or relating to Customer’s unauthorized upload of HIPAA Data to the Service.
2.3 Data Privacy Compliance. The parties shall comply with the DPA (incorporated herein by this reference).
3. SECURITY COMPLIANCE.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor, the parties shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, and otherwise to ensure compliance with applicable rules, laws and regulations.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 ONE Tech Technology; Feedback. Customer agrees that ONE Tech or its licensors retain all right, title and interest (including, without limitation, all patent, copyright, trademark, service mark, trade secret and all other intellectual property rights) in and to the Service, all Documentation and Client Software (if applicable), any Deliverables (defined below), and any and all related and underlying technology, content and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback (defined below) that may be incorporated therein (collectively, the “ONE Tech Technology”). Except for the express limited rights set forth herein, no right, title or interest in any ONE Tech Technology is granted to Customer or any Users. Further, Customer acknowledges that the Service is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Service, except (if applicable) for the Client Software in object code format. Notwithstanding anything to the contrary herein, ONE Tech may freely use and incorporate into ONE Tech’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any User relating to ONE Tech’s products or services, including, without limitation, the Service (“Feedback”). The Service may contain links and references to third-party websites, which are provided for your convenience. One Tech is not responsible for the content or information contained on such third-party websites. You are not granted any intellectual property rights in or to the Service by implication, estoppel or other legal theory, and all rights in and to the Service not expressly granted by this Agreement are hereby reserved and retained by One Tech. These provisions survive the termination of this Agreement.
4.2 Usage Data. Notwithstanding anything to the contrary herein, ONE Tech may collect and use Usage Data to develop, improve, support, and operate its products and services, including, without limitation, the Service. ONE Tech may not share any Usage Data that includes Customer’s Confidential Information with a third party except (i) in accordance with Section 5 (Confidential Information) hereof, (ii) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified or (iii) upon authorization by Customer in writing.
4.3 One Tech Trademarks; Promotional Use. You acknowledge and agree that the following company names and their related logos and all related product and service names, design marks and slogans are trademarks and service marks owned by and used under license from One Tech: “One Tech”, “MicroAI” and “AtomML” (the “One Tech Marks“). You are not authorized to use the One Tech Marks in any advertising, publicity or in any other commercial manner without the prior written consent of One Tech, which may be withheld for any or no reason. These provisions survive termination of this Agreement. ONE Tech may use and display Customer’s name, logo, trademarks, and service marks on ONE Tech’s website and in ONE Tech’s promotional materials in connection with identifying Customer as a customer of ONE Tech. Upon Customer’s written request, ONE Tech will promptly remove any such materials from ONE Tech’s website and, to the extent commercially feasible, ONE Tech’s promotional materials.
5. CONFIDENTIALITY.
Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope hereof, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access solely for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that the Disclosing Party, because of the unique nature of its Confidential Information, would suffer irreparable injury in the event of any breach by the Receiving Party of its confidentiality obligations hereunder. Accordingly, the Receiving Party agrees that in the event of such a breach by Receiving Party, that Disclosing Party is entitled to seek equitable relief to protect its interest herein, including injunctive relief, as well as money damages.
6. FEES AND PAYMENT; TAXES
6.1 Fees and Payment. All Fees and payment terms are as set forth in the applicable Order. Except as expressly set forth herein, all payment obligations are non-cancelable and Fees are non-refundable.
6.2 Taxes. Fees do not include Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder including without limitation all use or access of the Service by its Users. If ONE Tech has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, ONE Tech will invoice Customer and Customer will pay that amount unless Customer provides ONE Tech with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to ONE Tech, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, ONE Tech receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon ONE Tech’s request, Customer will provide to ONE Tech its proof of withholding tax remittance to the respective tax authority.
7. TERM AND TERMINATION
7.1 Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no Order or Retrieval Right currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order will terminate upon expiration of the applicable Subscription Term, unless expressly stated otherwise therein or in this Agreement.
7.2 Termination for Cause. Either party may terminate this Agreement (including all related Order) if the other party (a) fails to cure any material breach hereof (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within 60 days. Except where an exclusive remedy is specified, the exercise of either party of any remedy hereunder, including termination, will be without prejudice to any other remedies it may have hereunder, by law or otherwise. For any termination hereof by Customer for cause in accordance with Section 7.2(a), Customer shall be entitled to a refund of any unused Fees Customer has pre-paid for the Service purchased hereunder.
7.3 Effect of Termination; Customer Data Retrieval. Upon written notice to ONE Tech, Customer will have up to thirty (30) calendar days from termination or expiration hereof to access the Service solely to the extent necessary to retrieve Customer Data (“Retrieval Right”). If Customer exercises its Retrieval Right, this Agreement and the applicable Order shall continue in full force and effect for the duration of the Retrieval Right. ONE Tech shall have no further obligation to make Customer Data available after termination hereof and shall thereafter promptly delete Customer Data. After the Retrieval Right period, Customer will have no further access to Customer Data and shall cease use of and access to the Service (including any related ONE Tech Technology) and delete all copies of Client Software, Documentation, the Service passwords or access codes, and any other ONE Tech Confidential Information in its possession.
7.4 Survival. The following Sections will survive any expiration or termination hereof: 1.5 (General Restrictions), 4 (Intellectual Property Rights), 5 (Confidentiality), 6.1 (Fees and Payment), 6.2 (Taxes), 7 (Term and Termination), 8.2 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 13 (General Terms), and 14 (Definitions).
7.5 Suspension of Service In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth herein, ONE Tech reserves the right to suspend provision of services; (a) if Customer is fifteen (15) days or more overdue on a payment, (b) if ONE Tech deems such suspension necessary as a result of Customer’s breach of Sections 1.5 (General Restrictions) or 2.2 (Use Obligations), (c) if ONE Tech reasonably determines suspension is necessary to avoid material harm to ONE Tech or its other customers, or (d) as required by applicable law or at the request of governmental authorities.
8. LIMITED WARRANTY
8.1 Warranty. ONE Tech warrants to Customer that: (a) each Service will operate in substantial conformity with the applicable Documentation and (b) Technical Services and Deliverables will be provided in a professional and workmanlike manner and substantially in accordance with the specifications set forth in the Order. If ONE Tech is unable to correct any reported non-conformity with this warranty, either party may terminate the applicable Order (and Customer, as its sole remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Service or Technical Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by misuse of the Service or Deliverables, modifications to the Service or Deliverables by Customer, a User or any other third-party, or third-party hardware, software, or services used in connection with the Service. For Technical Services and Deliverables, this warranty will not apply unless Customer provides written notice of a claim within thirty (30) days after expiration or earlier termination of the Order.
8.2 Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
8.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, THE CLIENT SOFTWARE, AND ALL TECHNICAL SERVICES AND SUPPORT ARE PROVIDED “AS IS” AND ONE TECH MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ONE TECH DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ONE TECH WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY.
9. SUPPORT AND AVAILABILITY.
During a Subscription Term and solely in its discretion, ONE Tech may provide Customer with certain email and telephone support for the Service.
10. TECHNICAL SERVICES.
10.1 Provision of Technical. ONE Tech will perform the Technical Services for Customer as set forth in the Order, subject to the terms and conditions hereof and the TSA. The ONE Tech personnel that ONE Tech assign to perform the Technical Services will be professional and qualified in the performance of the applicable Technical Services.
10.2 Assistance. Customer acknowledges that timely access to applicable Customer Materials (defined below), resources, personnel, equipment or facilities is necessary for the provision of Technical Services. Customer agrees to provide such access and to reasonably cooperate with ONE Tech during a Technical Services project. ONE Tech will have no liability for any delay or deficiency to the extent resulting from Customer’s breach of its obligations under this Section.
10.3 Customer Materials. Customer hereby grants ONE Tech a limited right to use any materials provided to ONE Tech in connection with Technical Services projects (collectively, the “Customer Materials”) solely for the purpose of providing Technical Services to Customer. Customer will retain any of its rights in and to the Customer Materials. ONE Tech will treat Customer Materials subject to the confidentiality obligations under Section 5 (Confidentiality). Customer warrants that Customer has and will have sufficient rights in the Customer Materials to grant the rights to ONE Tech hereunder and that the Customer Materials will not violate the rights of any third-party rights.
10.4 Access to Customer Data With respect to access to any Customer Data, Customer is solely responsible for ensuring that both the duration and scope of access is strictly limited to the access required under the Order. Customer agrees that it will not grant ONE Tech access to Customer Data unless specifically required and noted in the Order, and only during the term of the applicable Technical Services project. Unless otherwise specified in an Order, Customer must ensure that (a) any access to Customer Data that it grants is limited to read-only access in Customer’s development environment for the Service (and Customer will not grant access to any other environment) and (b) Customer will not grant access to any Customer Data that is unencrypted or contains personal data . To the extent access to Customer Data is granted, Customer will provide ONE Tech with: (i) secure Customer workstations and networks for accessing Customer Data that are monitored, managed, configured, supported and maintained by Customer and (ii) unique user ID/passwords to each ONE Tech resource that requires access to Customer Data, and these credentials will be solely managed by Customer.
10.5 License to Deliverables. The Technical Services and the resulting Deliverables are generally applicable to ONE Tech’s business and are part of ONE Tech Technology. Subject to the terms and conditions hereof (including the restriction in Section 1.6 (General Restrictions)), ONE Tech hereby grants Customer a limited, non-exclusive, royalty-free, revocable, non-transferable worldwide license to use the Deliverables internally solely in connection with such Customer’s use of the Service during the period in which such Customer has valid access to the Service.
10.6 Change Orders; Other Terms. Customer may submit written requests to ONE Tech to change the scope of Technical Services under an existing Order. ONE Tech will promptly notify Customer if it believes that the requested change requires an adjustment to the fees, schedule, assumptions or scope for the performance of the Technical Services. Neither party is bound by a change request unless agreed in writing by both parties pursuant to a mutually executed amendment or change order (each, a “Change Order”). ONE Tech will continue to perform Technical Services pursuant to the existing SOW unless the parties mutually agree to such amendment or change order. ONE Tech may use subcontractors to deliver Technical Services but will remain responsible for their performance of those Technical Services pursuant to an Order and the applicable terms and conditions hereof. For clarity, Customer will be responsible for any consumption and other fees for the Service that are generated as part of the Technical Services.
10.7 Increases in Services Fees. Without prejudice to ONE Tech’s rights, no later than 30 days prior to the end of the Initial License Period, and of any extended Licence Period if this Agreement continues in accordance with this contract, ONE Tech reserves the right to make changes to fees charged including support, licence and warranties.
ONE Tech will give the Customer at least 30 days’ notice in writing of
(i) any price increase of your service, or
(ii) any other price increase which is likely to be to your material disadvantage unless the price change is required for legal or regulatory reasons.
If the Customer does not agree with the varied Services Fees notified by ONE Tech, the Customer may terminate this Agreement by giving ONE Tech 30 days’ written notice.
11. INDEMNIFICATION
11.1 Indemnification by ONE Tech. ONE Tech will defend Customer against any claim by a third party alleging that the Service or Deliverable, when used in accordance with this Agreement, infringes any intellectual property right of such third party and will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by ONE Tech (including reasonable attorneys’ fees) resulting from such claim. If Customer’s use of the Service or Deliverable results (or in ONE Tech’s opinion is likely to result) in an infringement claim, ONE Tech may either: (a) substitute functionally similar products or services; (b) procure for Customer the right to continue using the Service or Deliverable; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order and refund to Customer the unused Fees that Customer has pre-paid for the applicable Service or Deliverable. The foregoing indemnification obligation of ONE Tech will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service or Deliverable by any party other than ONE Tech or based on Customer’s specifications or requirements; (2) the combination of the Service or Deliverable with products or processes not provided by ONE Tech; (3) any use of the Service or Deliverables in non-conformity with this Agreement; or (4) any action arising as a result of Customer Data, or any deliverables or components not provided by ONE Tech. This Section sets forth Customer’s sole remedy with respect to any claim of intellectual property infringement.
11.2 Indemnification by Customer. Customer will defend ONE Tech against any claim by a third party arising from or relating to: (a) any Customer Data, Customer Materials or any Customer-offered product or service used in connection with the Service or (b) Customer’s material breach of any covenant, representation, warranty, provision or agreement of Customer contained herein, and will indemnify and hold harmless ONE Tech from and against any damages and costs awarded against ONE Tech or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.
11.3 Indemnification Procedures. In the event of a potential indemnity obligation under this Section, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section shall not relieve the indemnifying party of its obligations under this Section, however the indemnifying party shall not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials), or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
12. LIMITATION OF LIABILITY.
EXCEPT AS TO EXCLUDED CLAIMS (DEFINED BELOW), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANY TO THE CONTRARY HEREIN:
(A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
(B) EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE), SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO ONE TECH IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER(S) TO WHICH SUCH LIABILITY RELATES;
(C) THE PARTIES AGREE THAT THIS SECTION WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND
(D) THE LIABLITY CAPS SET FORTH IN THIS SECTION SHALL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS.
13. GENERAL TERMS
13.1 Assignment. Neither party may assign or otherwise transfer this Agreement or any rights or obligations hereunder to any person other than its Affiliate without the prior written consent of the other party which will not be unreasonably withheld. In the event that a party is sold to another company (“Successor Company”), then such party may assign its rights hereunder to the Successor Company upon providing thirty (30) days’ advance written notice to the other party. Any attempt by a party to make any other assignment without consent shall be void ab initio.
13.2 Severability. The invalidity or unenforceability of any provision hereof, or any terms thereof, will not affect the validity hereof as a whole, which will at all times remain in full force and effect.
12.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Texas without reference to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any dispute arising out of this Agreement shall be subject to the exclusive jurisdiction and venue of the Texas state courts and/or the United States District Court of the Western District of Texas, and Customer hereby agrees to the personal and exclusive jurisdiction and venue of these courts.
13.4 Notices. Any notice required or permitted to be given hereunder shall be delivered (i) by hand, (ii) by registered or certified mail, postage prepaid, return receipt requested, to the address of the other party set forth herein, or to such other address as a party may designate by written notice in accordance with this Section, (iii) by overnight courier, or (iv) by fax with confirming letter mailed under the conditions described in (ii). Notice so given shall be deemed effective when received, or if not received by reason of fault of addressee, when delivered. Any notices or correspondence between the parties shall be forwarded to the addresses first set forth herein, or to such other address as a party may request in a notice given pursuant to the terms of this Section.
13.5 Amendments; Waivers. Any term or provision of this Agreement may be amended, and the observance of any term, waived only by a writing signed by both Parties hereto. No waiver of any default hereunder or any terms or conditions hereof will be deemed to be a waiver of any other or subsequent default of any other term or condition, but will apply solely to the instance to which such waiver is directed. No terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, notwithstanding any language to the contrary therein, whether signed before or after this Agreement.
13.6 Entire Agreement. This Agreement, including the Evaluation Addendum (if applicable), the subject Order, Documentation and other documents expressly incorporate by reference herein, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof. ONE Tech may change and update the Service (in which case ONE Tech may update the applicable Documentation accordingly), subject to the warranty in Section 8.1 (Service Warranty).
13.7 NO Third-Party Beneficiaries. There are no third-party beneficiaries hereunder.
13.8 Force Majeure. Neither party shall be considered in breach of this Agreement (excluding the obligation of Customer to pay ONE Tech hereunder) if prevented from performing due to an event of Force Majeure. For purposes hereof, “Force Majeure” means any act or event that renders it wholly or partially impossible for the affected party to perform its obligations hereunder or delays such affected party’s ability to do so, when such act or event: (i) is beyond the reasonable control of the affected party, (ii) is not due to the fault or negligence of the affected party, and (iii) could not have been avoided by the affected party by the exercise of reasonable diligence.
13.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees.
13.10 Export Control. Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer 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, (ii) Customer will not (and will not permit any third parties to) access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Service any information that is controlled under the U.S. International Traffic in Arms Regulations.
13.11 Federal Government End Use Provisions. ONE Tech provides the Service, including all related software and, to the extent applicable the ONE Tech Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined herein. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with ONE Tech to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
13.12 Consent to Monitoring and Disclosure. You acknowledge that One Tech reserves the right, and may from time to time, monitor your access and use of the Service, and you hereby consent to such monitoring.
13.13 Order of Priority. In the event of a conflict between a provision in the body of this Agreement and any Order, the provision in the body of this Agreement shall prevail.
14. DEFINITIONS
“Acceptable Use Policy” means ONE Tech’s acceptable use policy, made available at https://www.micro.ai/acceptable-use-policy, as amended from time to time.
“Account” means Customer’s account in the applicable Service in which Customer stores and processes Customer Data.
“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
“Client Software” is any desktop client software included in the applicable Service that is made available to Customer by ONE Tech for installation on end user computers.
“Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Data will be deemed Confidential Information of Customer without any marking or further designation. All ONE Tech Technology and the terms and conditions hereof will be deemed Confidential Information of ONE Tech without any marking or further designation. Confidential Information does not include information which: (i) is known to Receiving Party at the time of disclosure by Disclosing Party, as shown by Receiving Party’s then-contemporaneous documentary evidence kept in the ordinary course of Receiving Party’s business, (ii) is or becomes publicly known and made generally available through no wrongful act of Receiving Party or any other person or entity that is bound by confidentiality or non-use obligations with respect to such information, (iii) has been rightfully received by Receiving Party from a third party that is not known by Receiving Party to be bound by confidentiality or non-use restrictions with respect to such information, or (iv) is independently developed by Receiving Party without use of, or reference to, Confidential Information, as shown by Receiving Party’s then-contemporaneous documentary evidence kept in the ordinary course of Receiving Party’s business.
“Customer Data” means any personal data that ONE Tech processes on behalf of Customer via the Service, as more particularly described in the DPA.
“Deliverables” means the guides, code or other deliverables that ONE Tech provides to Customer in connection with Technical Services.
“Documentation” means ONE Tech’s technical documentation and usage guides for the Service made available through the Service.
“DPA” means the Data Processing Addendum, made available at https://www.micro.ai/data-processing-addendum, as amended from time to time.
“Excluded Claims” means (a) a party’s breach of its obligations in Section 5 (Confidential Information) (but excluding obligations and/or claims relating to Customer Data); (b) either party’s express obligations under Section 11 (Indemnification); and (c) liability which, by law, cannot be limited.
“Fees” means the fees payable by Customer for the applicable Service or Technical Services, as set forth in an Order.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“HIPAA Data” means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
“One Tech” means One Tech, Inc. a Delaware corporation d/b/a Micro AI or its Affiliate which executes or accepts an Order (online or offline) that is governed by this Agreement.
“Order” means the ONE Tech ordering document or online order agreed to by both Customer and ONE Tech which specifies the Service being provided by ONE Tech and that is governed by this Agreement.
“Service” means a One Tech software-as-a-service offering made generally available and ordered by Customer as set forth in an Order, and any associated content, services, features, functionality made available through such offering. The Service excludes any devices, monitors and sensors (“Devices”) and the wireless plan associated therewith.
“Subscription Term” means the set term designated on an Order.
“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of ONE Tech.
“Technical Services” shall mean the consulting, configuration or other professional services provided by ONE Tech to Customer under an Order.
“TSA” means the Technical Services Addendum made available at https://www.micro.ai/technical-services-addendum, as amended from time to time.
“Usage Data” means query logs, and any data (other than Customer Data) relating to the operation, support and/or about Customer’s use of the Service.
“User” means the persons designated and granted access to the Service by or on behalf of Customer, including its and its Affiliates’ Contractors.
* * *
ONE Tech, Inc.
evaluation ADDENDUM
(version number: 08112022)
IF YOU SUBMIT AN EVALUATION ORDER FORM (DEFINED BELOW) OR ONE TECH OTHERWISE GRANTS YOU ACCESS TO THE SERVICE FOR EVALUATION PURPOSES, THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS OF THIS EVALUATION ADDENDUM (“ADDENDUM”) SHALL APPLY TO YOUR USE OF THE SERVICE.
1. INTERPRETATION.
Except as amended, modified, or supplemented by this Addendum, the Terms of Service shall remain in full force and effect. In the event of a conflict between the provisions of this Addendum and those of the Terms of Service, this Addendum shall control. Terms with initial capital letters are defined terms which shall have the respective meanings given them in the Terms of Service unless the context of this Addendum requires otherwise.
2. ACCESS TO SERVICE.
You may access and use the Service during the Evaluation Period (defined below), but only for your own benefit on an evaluation basis to determine whether to purchase an ongoing subscription to the Service and in accordance with the terms and conditions of this Addendum. Customer will ensure that all of Your Users keep their user IDs and passwords for the Service strictly confidential and will remain responsible for any and all actions taken using Customer’s account. Customer will be responsible for restricting access by any User who is no longer authorized to access the Service. To the extent use of a Service pursuant to this Addendum requires Customer to install Client Software, One Tech grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license solely during the Evaluation Period to use the object code form of the Client Software internally in connection with Customer’s use of the Service, subject to the terms of this Addendum.
3. SUPPORT.
One Tech will use reasonable efforts to answer Customer’s questions regarding use of the Service, but shall not obligated to provide any other support for the Service during the Evaluation Period.
4. INTELLECTUAL PROPERTY RIGHTS.
This is an agreement for access to and use of the Service. Customer acknowledges that it is obtaining only a limited right to the Service and that irrespective of any use of the words “purchase”, “sale” or like terms in this Addendum no ownership rights are being conveyed to Customer under this Addendum.
5. TERM AND TERMINATION.
The Evaluation Period shall end on the sooner of the end of the Evaluation Period, the consumption of the Free Usage (defined below) or upon written notice by One Tech to Customer. At the end of the Evaluation Period (a) Customer’s access to the Service will expire and Customer will have the option to purchase an ongoing subscription to the Service on mutually agreed terms; and (b) each party will return or destroy the other party’s Confidential Information. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Service. Within thirty (30) days following the end of the Evaluation Period, One Tech will delete the Customer Data.
6. DEFINITIONS.
6.1 “Evaluation Order Form” means the One Tech ordering document executed by Customer and One Tech which specifies the Service to be evaluated by Customer, the amount of available Free Usage and the applicable Evaluation Period.
6.2 “Evaluation Period” means the evaluation period specified in the Evaluation Order Form.
6.3 “Free Usage” means the amount of free usage specified in the Evaluation Order Form.