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Terms of Service Agreement

Thank you for signing up for a subscription with Fignel.com , Inc (“Fignel”, “we” or “us”).By placing an order, clicking to accept this Agreement, or using or accessing any FIGNEL Service or related services, you agree to all the terms and conditions of this Terms of Service Agreement (“Agreement”).If you are using a FIGNEL Service or related services on behalf of a company or other entity, then “Customer” or “you” means that entity, and you are binding that entity to this Agreement.You represent and warrant that you have the legal power and authority to enter into this Agreement and that, if the Customer is an entity, this Agreement and each Order Form is entered into by an employee or agent with all necessary authority to bind that entity to this Agreement.Please note that we may modify this Agreement as further described in the amendments section below, so you should make sure to check this page from time to time.This Agreement includes any Order Forms (as defined below) as well as any policies or exhibits linked to or referenced herein.

1.OVERVIEW OF THE FIGNEL PLUGIN.

FIGNEL provides a suite of products that allows subscribers to manage, test, personalize, and analyze the experiences they deliver through a variety of platforms, such as web, mobile, server-side, and OTT applications.To accomplish this, Customer first installs FIGNEL Code for the relevant platform, and then uses the tools within the applicable FIGNEL Service to select Content to manage.Based on these selections, variations of Customer Properties are presented to Visitors. 

2.DEFINITIONS.

2.1 “Add-On” means integrations, applications, and other add-ons that are used with the FIGNEL Service.

2.2 “Affiliate” means any entity which is controlled by, in control of, or is under common control with a party to this Agreement, where “control” means either the power to direct the management or affairs of the entity or ownership of 50% or more of the voting securities of the entity.

2.3 “Aggregate/Anonymous Data” means: (i) data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer or its Visitors; and (ii) learnings, logs, and data regarding use of the FIGNEL Service.

2.4 “Authorized Users” means Customer’s employees and contractors (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.

2.5 “Confidential Information” means code, inventions, know-how, product plans, inventions, and technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

2.6 “Content” means text, images, videos or other content for the Customer Property that Customer selects for use with the FIGNEL Service.This Content becomes public on the Customer Properties, so Customer should only provide Content that it wishes others to see.

2.7 “Customer Apps” means the applications (such as for mobile device platforms or OTT devices) expressly identified in the applicable Order Form.

2.8 “Customer Data” means: (i) Content; (ii) Submitted Data; and (iii) Visitor Data.

2.9 “Customer Property or Properties” means: (i) Customer Sites; (ii) Customer Apps; or (iii) other types of platforms or properties (as may be supported by FIGNEL) specified in the applicable Order Form.

2.10 “Customer Sites” means the web domains expressly identified in the applicable Order Form.

2.11 “Documentation” means the end user technical documentation created by FIGNEL and provided with the FIGNEL Service.

2.12 “FIGNEL Code” means the code developed and provided by FIGNEL to Customer for use in connection with the FIGNEL Service, which may include FIGNEL’S JavaScript code, SDK(s) and Add-Ons developed and provided by FIGNEL.

2.13 “FIGNEL Service” means the specific proprietary software-as-a-service product(s) of FIGNEL specified in Customer’s Order Form, including any related FIGNEL Code and Documentation, and excluding any Third-Party Products.

2.14 “FIGNEL Technology” means the FIGNEL Service, any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the FIGNEL Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing, including as may incorporate any Feedback.

2.15 “Order Form” means any FIGNEL ordering documentation or online sign-up or subscription flow that references this Agreement.

2.16 “Regulated Data” means: (i) any personally identifiable information (other than personal information about Authorized Users); (ii) any patient, medical, or other protected or regulated health information; or (iii) any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.

2.17 “Scope of Use” means the usage limits or other scope of use descriptions for the FIGNEL Service included in the applicable Order Form (including descriptions of packages and features) or Documentation.These include any numerical limits on Visitors or Authorized Users, descriptions of product feature levels, and names or numerical limits for Customer Properties.

2.18 “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the FIGNEL Service, including Third-Party Content.

2.19 “Subscription Term” means the initial term for the subscription to the applicable FIGNEL Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).

2.20 “Third-Party Content” means content, data or other materials that Customer provides to the FIGNEL Service from its third-party data providers, including through Add-Ons used by Customer.

2.21 “Third-Party Product” means any applications, integrations, software, code, online services, systems, other products, and Add-Ons not developed by FIGNEL.

2.22 “Visitor” means any end user of a Customer Property.

2.23 “Visitor Data” means the data concerning the characteristics and activities of Visitors on the Customer Properties collected for Customer by the FIGNEL Service.

3.ACCOUNT REGISTRATION AND USE.

Customer and its Authorized Users may need to register for a FIGNEL account in order to place orders or to access or receive a FIGNEL Service.Account information must be accurate, current, and complete, and will be governed by FIGNEL’s Privacy Policy (currently available at fignel.com/docs/privacy).Customer agrees to keep this information up-to-date so that FIGNEL may send notices, statements, and other information by email or through Customer’s account.Customer must ensure that any user IDs, passwords, and other access credentials (such as API tokens) for the FIGNEL Service are kept strictly confidential and not shared with any unauthorized person.If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any FIGNEL Service.Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials.Customer must notify FIGNEL immediately of any breach of security or unauthorized use of its account.Accounts are granted to specific Customers and must not be shared with others.

4.USE RIGHTS.

4.1 Use of Fignel Services.Subject to all the terms and conditions of this Agreement, Fignel grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Subscription Term to access and use the Fignel Service(s) designated on Customer’s Order Form solely for Customer’s internal business purposes, but only in accordance with this Agreement, the Documentation, and all applicable Scope of Use descriptions.The Fignel Service may require installation of Fignel Code on Customer Properties.In these cases, subject to the same conditions above, the rights granted in this Section further include the right to install and use the relevant Fignel Code on the specified Customer Properties and, in the case of Customer Apps, to distribute the installed Fignel Code with Customer Apps.

4.2 Use by Others.Customer may permit its Authorized Users to use the Fignel Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement.Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement.Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.

4.3 General Restrictions.Customer must not (and must not allow any third party to: (i) rent, lease, copy, transfer, resell, sublicense, lease, time-share, or otherwise provide access to the Fignel Service to a third party (except Authorized Users); (ii) incorporate the Fignel Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than on Customer Properties owned-and-operated by Customer and as specifically permitted above; (iii) publicly disseminate information regarding the performance of the Fignel Service (which is deemed Fignel’s Confidential Information); (iv) modify or create a derivative work of the Fignel Service or any portion of it; (v) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Fignel Service (including Fignel Code), except to the extent expressly permitted by applicable law and then only with advance notice to Fignel; (vi) break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Fignel Service, or configure the Fignel Service (or any component thereof) to avoid sending events or impressions or to otherwise avoid incurring fees; (vii) distribute any portion of the Fignel Service other than the Fignel Code installed in Customer Properties as specifically permitted above; (viii) access the Fignel Service for the purpose of building a competitive product or service or copying its features or user interface; (ix) use the Fignel Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Fignel’s prior written consent; or (x) remove or obscure any proprietary or other notices contained in the Fignel Service, including in any reports or output obtained from the Fignel Service.

4.4 Beta Releases and Free Access Subscriptions.Fignel may provide Customer with a Fignel Service or Fignel Code for free or on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Fignel Services, Fignel Code, integrations, or features (“Beta Releases”), which are optional for Customer to use.This Section will apply to any Free Access Subscriptions or Beta Releases (even if Beta Releases are provided for a fee or counts towards Customer’s Scope of Use allocations) and supersedes any contrary provision in this Agreement.Fignel may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases.Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA, OR INDEMNITY OBLIGATIONS OF ANY KIND.WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH Fignel WILL NOT BE RESPONSIBLE.ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK.Fignel makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms.Fignel may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in Fignel’s sole discretion, without liability.

5.CUSTOMER DATA.

5.1 Rights in Customer Data.As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, all Customer Properties, and all content contained within them (excluding any Fignel Technology).Customer hereby grants Fignel a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the Fignel Service and related services to Customer and as set out in Section 5.2 (Aggregate/Anonymous Data).For Content, this includes the right to publicly display and perform Content and the Customer Properties (including derivative works and modifications) as directed by Customer through the Fignel Service.

5.2 Aggregate/Anonymous Data.Customer agrees that Fignel will have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is Fignel Technology, which Fignel may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve Fignel’s products and services and to create and distribute reports and other materials).For clarity, Fignel will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or Visitors, and that is stripped of all persistent identifiers (such as device identifiers, IP addresses, and cookie IDs).Customer is not responsible for Fignel’s use of Aggregate/Anonymous Data.

5.3 Security.Fignel agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification.Fignel’s security measures will include: (i) storing Customer Data on servers located in a physically secured location; and (ii) using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.

5.4 Storage.Fignel does not provide an archiving service.During the Subscription Term, Customer acknowledges that Fignel may delete Content no longer in active use.Fignel expressly disclaims all other obligations with respect to storage.

5.5 Data Export.Fignel provides the ability for Customer to export data at any time in the Fignel Service as described in the Documentation.

6.CUSTOMER OBLIGATIONS.

Customer agrees to: (i) maintain a legally-adequate privacy policy on its Customer Properties and provide all required disclosures to its Visitors; (ii) obtain all necessary rights, releases, and consents to allow Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Fignel the rights set out in this Agreement; (iii) not submit, collect, or use any Regulated Data to or with the Fignel Service (including from Third-Party Products), except for online identifiers (such as IP addresses or cookie IDs) collected by default by the Fignel Service; (iv) comply with any third-party terms applicable to any Customer Apps (such as app store terms), and to any Third-Party Products used in connection with the Fignel Service; (vi) not take any action that would cause Fignel, the Fignel Service or the Fignel Code to become subject to any third-party terms (including open source license terms).Customer represents and warrants that its Customer Properties and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights.If Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products, it must promptly: (a) stop using the related item with the Fignel Service; and (b) notify Fignel.If Fignel receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, Fignel may respond in accordance with its policies, and will notify and consult with the Customer on next steps.

7.SERVICES.

Fignel makes available web-based support through its website.Additional support services may be available to Customer upon payment of applicable fees (if any), as specified in Customer’s Order Form.Any support services are subject to this Agreement and Fignel’s applicable support policies.Fignel may also provide onboarding, deployment and other services under this Agreement.The scope, pricing, and other terms for these additional services will be specified in an Order Form, Order Form exhibit, or other document referencing this Agreement.Customer may use anything delivered as part of these additional services internally during its Subscription Term to support its authorized use of the Fignel Service, subject to the restrictions in Section 4 (Use Rights) above applicable to the Fignel Service itself.Fignel’s ability to deliver services will depend on Customer’s reasonable and timely cooperation and the accuracy and completeness of any information from Customer needed to deliver the services.For avoidance of doubt, Customer retains ownership of any Confidential Information it provides to Fignel.

8.FEES AND PAYMENT.

Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form.Fignel’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Fignel.Customer will make tax payments to Fignel to the extent amounts are appropriately included in Fignel’s invoices.Fignel sends invoices electronically, and invoices for the Fignel Service in advance as set out in the Order Form, and for overages or additional CPM, if applicable in the relevant Order Form, monthly in arrears.If Customer requires a Purchase Order number referenced on Fignel’s invoice, Customer must promptly provide the Purchase Order number.If Customer does not promptly provide the Purchase Order number, Customer agrees to pay the invoice without a referenced Purchase Order Number.Some customers may have the option to pay by credit card.If Customer is paying by credit card, it authorizes Fignel to charge and fees other amounts automatically to Customer’s credit card without invoice.Payments are non-refundable and non-creditable and payment obligations non-cancellable.Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law.

9.TERM AND TERMINATION.

9.1 Term.This Agreement is effective until all Subscription Terms for the Fignel Service(s) have expired or are terminated as expressly permitted in this Agreement.

9.2 Subscription Term and Renewals.By executing an Order Form for purchase of a Fignel Service, Customer is agreeing to pay applicable fees for the entire Subscription Term.Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause).If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Fignel Service.Each Subscription Term will automatically renew for additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form; or (ii) either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current Subscription Term.Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at Fignel’s then-applicable rates.

9.3 Suspension of Service.Fignel may suspend Customer’s access to the Fignel Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its Scope of Use limits.Fignel may also suspend Customer’s access to the Fignel Service(s), remove Customer Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 4 (Use Rights) or 6 (Customer Obligations); or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Fignel Service.Fignel will have no liability for taking action as permitted above.For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3.However, unless this Agreement has been terminated, Fignel will cooperate with Customer to promptly restore access to the Fignel Service once it verifies that Customer has resolved the condition requiring suspension.

9.4 Termination for Cause.Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).Fignel may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 4 (Use Rights) or 6 (Customer Obligations), or for repeated violations of this Agreement.

9.5 Effect of Termination.Upon any expiration or termination of this Agreement or an Order Form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable Fignel Service(s) (including any related Fignel Technology); (b) stop distributing any Fignel Code installed on its Customer Properties; and (c) delete (or, at Fignel’s request, return) any and all copies of the Fignel Code, any Fignel documentation, passwords or access codes, and any other Fignel Confidential Information in Customer’s possession, custody, or control; and (ii) Customer’s right to access any Customer Data in the applicable Fignel Service will cease and Fignel may delete the Customer Data at any time after 30 days from the date of termination.If Fignel terminates this Agreement for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer.Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

9.6 Survival.The following Sections survive any expiration or termination of this Agreement: 2 (Definitions); 3 (Account Registration and Use); 4.3 (General Restrictions); 4.4 (Beta Releases and Free Access Subscriptions); 5.1 (Rights in Customer Data); 5.2 (Aggregate/Anonymous Data); 8 (Fees and Payment); 9 (Term and Termination); 10 (Confidential Information); 11 (Fignel Technology); 12 (Indemnification); 13.2 (Disclaimers); 14 (Limitations of Liability); 15 (Third-Party Products and Integrations); and 16 (General).

10.CONFIDENTIAL INFORMATION.

10.1 Confidentiality Obligation.Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement.Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for Fignel, includes the subcontractors referenced in Section 16.5), provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than this Section.

10.2 Exclusions.These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information.A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advanced notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

10.3 Remedies.The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.

11.Fignel TECHNOLOGY.

11.1 Ownership and Updates.This is a subscription agreement for access to and use of the Fignel Service.Customer acknowledges that it is obtaining only a limited right to use the Fignel Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement.Customer agrees that Fignel (or its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all Fignel Technology (which is deemed Fignel’s Confidential Information) and reserves any licenses not specifically granted in this Agreement.Other than the Fignel Code, the Fignel Service is offered as an online, hosted product.Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any Fignel Service and that Fignel at its option may make updates, bug fixes, modifications or improvements to the Fignel Service from time-to-time.

11.2 Feedback.If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to Fignel (collectively, “Feedback”), Customer hereby grants Fignel a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise, however Fignel will not identify Customer as the source of the Feedback.Nothing in this Agreement limits Fignel’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

12.INDEMNIFICATION.

Customer agrees to defend and indemnify Fignel from and against any third-party claims and liabilities to the extent resulting from: Customer Data; Customer Properties (including services or products provided through the Customer Properties); or a breach or alleged breach of Section 6 (Customer Obligations).Customer must not settle any claim without Fignel’s prior written consent if the settlement would require Fignel to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action.Fignel may participate in a claim through counsel of its own choosing at its own expense and Customer and Fignel will reasonably cooperate on the defense.

13.DISCLAIMERS.

ALL Fignel TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS.NEITHER Fignel NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.Fignel MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT Fignel TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT Fignel TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE.Fignel DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL.Fignel WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-Fignel SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON Fignel TECHNOLOGY OR Fignel’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES).THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT.CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS.HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.

14.LIMITATIONS OF LIABILITY.

14.1 Liability Cap.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Fignel OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.Fignel’S AND ITS SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO Fignel FOR THE APPLICABLE Fignel SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM.FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, Fignel’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S.DOLLARS ($50 US).

14.2 Exceptions.NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 14 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE.IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION.IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 14 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

14.3 Failure of Essential Purpose.EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 14 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY Fignel TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

15.THIRD-PARTY PRODUCTS AND INTEGRATIONS.

If Customer uses Third-Party Products in connection with the Fignel Services, those products may make Third-Party Content available to Customer and may access Customer’s instance of the Fignel Service, including Customer Data.Fignel does not warrant or support Third-Party Products or Third-Party Content (whether or not these items are designated by Fignel as “powered”, “verified” or otherwise) and disclaims all responsibility and liability for these items and their access to the Fignel Services, including their modification, deletion, disclosure, or collection of Customer Data.Fignel is not responsible in any way for Customer Data once it is transmitted, copied, or removed from the Fignel Services by Customer or under Customer’s direction. 

16.GENERAL.

16.1 Assignment.This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.Neither party may assign this Agreement without the advance written consent of the other party, except that Fignel may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities.Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be void.

16.2 Notices.Any notice or communication under this Agreement must be in writing.Customer must send any notices under this Agreement (including breach notices) to Fignel, in English, at the following address, david@fignel.com, and include “Attn.Legal Department” in the subject line.Fignel may send notices to the email addresses on Customer’s account or, at Fignel’s option, to Customer’s last-known postal address.Fignel may also provide operational notices regarding the Fignel Service or other business-related notices through conspicuous posting of the notice on Fignel’s website or the Fignel Service.Each party consents to receiving electronic notices.Fignel is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

16.3 Publicity.Unless otherwise specified in the applicable Order Form, Fignel may use Customer’s name, logo, and marks (including marks on Customer Properties) to identify Customer as a Fignel customer on Fignel’s website and other marketing materials.

16.4 Subcontractors.Fignel may use subcontractors and permit them to exercise the rights granted to Fignel in order to provide the Fignel Service and related services under this Agreement.These subcontractors may include, for example, Fignel’s hosted service and CDN providers.However, subject to all terms and conditions of this Agreement, Fignel will remain responsible for: (i) compliance of its subcontractors with the terms of this Agreement; and (ii) the overall performance of the Fignel Services if and as required under this Agreement.

16.5 Subpoenas.Nothing in this Agreement prevents Fignel from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but Fignel will use commercially reasonable efforts to notify Customer where permitted to do so.

16.6 Independent Contractors.The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship.Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

16.7 Force Majeure.Neither party will be liable for any delay or failure to perform its obligation under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

16.8 Export.Customer is responsible for obtaining any required export or import authorizations for use of the Fignel Services.Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any U.S.government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S.government embargo or that has been designated by the U.S.government as a “terrorist supporting” country.Customer must not access or use the Fignel Service in violation of any U.S.export embargo, prohibition or restriction.

16.9 Amendments; Waivers.Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party.However, if Fignel modifies the Agreement during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal.In addition: (a) If Fignel launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use; (b) changes to any terms will take effect immediately for Free Access Subscriptions; and (c) during a Subscription Term, Fignel may update Fignel’s Security page, Privacy Policy, and Acceptable Use Policy from time-to-time to reflect process improvements or changing practices, and these changes will take effect thirty (30) days from the date of posting so long as they do not substantially diminish Customer’s rights or create substantial additional Customer obligations during a Subscription Term.Fignel’s Documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term Fignel may update the Documentation to reflect best practice with the relevant Fignel Service, provided that these changes do not substantially diminish Customer’s rights or create substantial Customer obligations.In the event of any conflict between this Agreement and any Order Form, this Agreement will take precedence unless otherwise expressly provided.No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement.Waivers must be made in writing and executed by an authorized representative of the waiving party.

16.10 Severability.If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

16.11 No Third-Party Rights.Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement.Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.

16.12 Entire Agreement.This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter.It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Fignel Technology or any other subject matter covered by this Agreement.The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.

16.13 Governing Law, Jurisdiction and Region-Specific Terms.Governing law, jurisdiction, and other region-specific terms are set out below:

17.ACCEPTABLE USE POLICY

In connection with use of any Fignel Service or other Fignel software, website or system (collectively, the “Fignel Platform”), you must not:

  1. Post or transmit abusive messages, defamatory, libelous, false or misleading statements, hate speech, or messages that incite or threaten violence;

  2. Transmit spam, chain letters, or other unsolicited email;

  3. Impersonate another person, misrepresent your affiliation with another person or entity, engage in fraud, or hide or attempt to hide your identity;

  4. Access any unauthorized part of the Fignel Platform;

  5. Access any part of the Fignel Platform, or any content or data therein, through any technology or means other than those provided or authorized by Fignel (including without limitation through technologies such as automated or non-automated “scraping,” “robots,” “spiders,” “offline readers,” or any system that sends more request messages to the Fignel servers than a human can reasonably produce in the same period of time);

  6. Interfere with the normal functioning, integrity or operation of the Fignel Platform;

  7. Upload or transmit invalid data, viruses, worms, harmful code, malware, or other software agents;

  8. Decipher or decrypt transmissions, circumvent any access, authentication or copy restrictions of, or otherwise attempt to compromise the security of the Fignel Platform (including another user’s account);

  9. Attempt to probe, scan or test the vulnerability of any part of the Fignel Platform without proper authorization;

  10. Attempt to modify, or gain unauthorized use of or access to, another user’s account(s), website(s), application(s), system(s), equipment or data;

  11. Collect or harvest any personally identifiable information, including account names, from any other user’s account;

Use the Fignel Service or other parts of the Fignel Platform in violation of any applicable law or regulation, including privacy laws in applicable jurisdictions; or Upload, use or transmit any content, data or materials that violate applicable laws or regulations.

Without limiting any other remedies available to it, Fignel may in its sole discretion suspend or terminate access to the Fignel Platform for violations of this Acceptable Use Policy, to prevent harm to other parties, or to preserve its security, availability or integrity.Terms not defined in this Acceptable Use Policy will have the meaning set forth in the applicable agreement between you and Fignel.

US, North and South America, Asia Pacific, and Rest of World. For customers located in the United States, North and South America, Asia Pacific (excluding Australia and New Zealand), and any other jurisdiction not covered by the region-specific terms below (Rest of World), the following terms apply:

  • Governing Law; Jurisdiction and Venue .This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof.The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement are the state courts located in Santa Clara County, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.

  • HIPAA non-compliance .Customer acknowledges that Fignel is not a Business Associate or subcontractor (as those terms are defined in HIPAA) and that the Fignel Service is not HIPAA compliant.“HIPAA” means the Health Insurance Portability and Accountability Act and related amendments and regulations as updated or replaced.“Regulated Data”includes HIPAA-regulated data and data covered under the Gramm-Leach-Bliley Act (or related rules or regulations) as updated or replaced.

  • U.S.Government Use .The Fignel Services are based upon commercial computer software.If the user or licensee of a Fignel Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Fignel Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulations 12.211 (Technical Data) and 12.212 (Computer Software) for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).The Fignel Services were developed fully at private expense.All other use is prohibited.If greater rights are needed, a mutually acceptable written amendment specifically conveying these rights must be included as part of this Agreement.

  • General .The Uniform Computer Information Transactions Act (UCITA) do not apply to this Agreement regardless of when or where adopted.

  • Attorneys’ Fees and Costs .The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

  • English language .The parties agree that this Agreement is in the English language.