AQ Terms of Service
Last updated: August 8, 2026
Please read these AQ Terms of Service (these “Terms”) carefully. The AQ application and its associated tools, services, and resources (collectively, the “Services”) are controlled by BetterLeap Inc. (“Company”). These Terms are entered into by and between Company and the entity or person downloading, placing an order for, or otherwise accessing the Services (“Customer”). The agreement between Company and Customer consists of these Terms together with all fully executed ordering documents or online registration requests that are accepted by Company (including, for clarity, any order placed through a third-party marketplace) (each, an “Order”) and any supplemental terms that may be presented to you in connection with specific products or features of the Services (collectively, the “Agreement”). This Agreement is effective as of the date of Customer’s initial access to the Services through any download, online provisioning, registration, or order process (the “Effective Date”). You acknowledge that if you are using the Services on behalf of, or within your capacity as, a representative, agent, or employee of any entity, then “Customer” as used herein will apply to such entity and such individual.
BY CLICKING “I ACCEPT,” DOWNLOADING OR OTHERWISE ACCESSING ANY PORTION OF THE SERVICES, OR EXECUTING AN ORDER, YOU REPRESENT AND WARRANT THAT: (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS NOT BARRED FROM USING THE SERVICES UNDER THE LAWS OF THE UNITED STATES, ITS PLACE OF RESIDENCE OR ANY OTHER APPLICABLE JURISDICTION, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR, IF YOU ARE ACCESSING OR USING THE SERVICES ON BEHALF OF AN ENTITY, ON BEHALF OF CUSTOMER. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THE TERMS OF USE, CUSTOMER MAY NOT ACCESS OR USE THE SERVICES. BY CLICKING “I ACCEPT,” DOWNLOADING OR OTHERWISE ACCESSING ANY PORTION OF THE SERVICES, OR EXECUTING OR SUBMITTING AN ORDER, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY ALL OF THE PROVISIONS OF THIS AGREEMENT.
IF CUSTOMER EXECUTES AN ORDER FOR A SUBSCRIPTION TERM (AS USED HERE, AN “INITIAL SUBSCRIPTION TERM”), THEN, UNLESS OTHERWISE INDICATED IN THE ORDER, CUSTOMER’S ORDER WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL SUBSCRIPTION TERM AT COMPANY’S THEN-CURRENT FEES UNLESS CUSTOMER DECLINES TO RENEW IN ACCORDANCE WITH SECTION 3.3 (TERMINATION OF ORDERS) BELOW.
This Agreement is subject to occasional revision, and Company reserves the right to modify fees for accessing or using the Services in the future. See Section 7.4 (Modifications to this Agreement) for further information about changes to this Agreement.
1. Services
1.1 Download and Use of Services. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of any fees described in an applicable Order), Company grants Customer a non-exclusive, non-transferable license during the Term to: (i) download, install, and use the Services identified in each active Order and any other integration materials provided by Company to Customer solely for Customer’s internal business purposes in accordance with the Documentation, and (ii) access and use the published documentation made available by Company in connection with the Services (the “Documentation”), in each case in accordance with this Agreement. For clarity, Customer will be solely responsible for integrating and implementing the Services with the Connected Services. Customer is solely responsible for any Connected Service that Customer chooses to integrate with the Services and Customer assumes all risks associated with use of the foregoing. Customer is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Services as specified in the Documentation. Customer acknowledges that the Services are intended to access Customer Data from integrated Connected Services at Customer’s direction, and Customer hereby provides its consent to such access.
1.2 Accounts. As part of the set-up process, Customer may be asked to create one or more accounts on the Services (each, an “Account”) and provide certain information as prompted in the account registration process. Customer represents and warrants that: (i) all required Account registration information submitted is truthful and accurate; and (ii) Customer will maintain the accuracy of such information. Customer is responsible for maintaining the confidentiality of all Account login information and is fully responsible for all activities that occur under Customer’s Accounts. Customer will use reasonable efforts to prevent any unauthorized access or use of the Services and Customer agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use, of the Accounts or any other breach of security. Company will not be liable for any loss or damage arising from any unauthorized use of the Accounts or Customer’s failure to comply with the above requirements.
1.3 Teams and Administrators. If Customer creates more than one Account on the Services for use by Customer’s employees, contractors, or other representatives (each, a “Team User,” and collectively, a “Team”), Customer may designate one or more such Team Users as an authorized administrator (each, an “Administrator”). Customer acknowledges that Administrators may invite and remove Team Users and establish Account settings. As between Company and Customer, Customer is solely responsible for all actions and omissions of its Team, including any Administrators and Team Users.
1.4 Connected Services. To enable the functionality of the Services, Customer may be required to connect and integrate the Services with Customer’s servers, cloud-hosting environments and/or applications, and artificial intelligence platforms (which may include, without limitation, any of the foregoing that are made available to Customer by a third-party service provider) (collectively, the “Connected Services”). Customer will be solely responsible for integrating and implementing the Connected Services with the Services. As between the parties, Customer is solely responsible for determining if the Connected Services are appropriate for use with the Services and for obtaining all necessary consents, permissions, approvals, or licenses to access and use the Connected Services. Customer assumes all risks associated with use of any Connected Services, and for any issues caused by Customer’s use of any third-party hardware, software, or services not provided by Company. Company does not endorse, warrant or support, is not responsible for, and disclaims all liability with respect to, such Connected Services, including without limitation, the privacy or data security practices or other policies related to such Connected Services.
1.5 Restrictions. The Services are made available to Customer solely for its own internal business purposes. To the maximum extent permitted by applicable law, Customer shall not, directly or indirectly, and shall not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, structure, ideas, algorithms, or other hidden or non-public elements of, (ii) translate, adapt, publish, reproduce, distribute or modify, (iii) except as described in Section 1.4 (Connected Services) or as authorized by Company, write or develop any program based upon or incorporate into any product or service Customer provides to a third party, (iv) use in any manner for the purpose of developing, distributing or making accessible products or services that are similar to or compete with, (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any rights in, (vi) make available on a service bureau basis, as part of any third party’s product offering (regardless of hosting or distribution model) or otherwise access or use (or permit a third party to access and use) for the benefit of a third party, (vii) allow unauthorized persons to have access to, (viii) transmit unlawful, infringing or harmful data, content or code to or from, (ix) copy or replicate, (x) interfere with, disrupt, or create an undue burden on (or violate the regulations, policies, or procedures of) any servers or networks connected to, (xi) attempt to gain unauthorized access to or interfere with any license key mechanism in or otherwise circumvent any mechanism intended to limit use of, (xii) alter or remove any trademarks or proprietary notices contained in or on, (xiii) engage in framing, mirroring, or otherwise simulating the appearance or function of, (xiv) perform or publish any performance or benchmark tests or analyses relating to, or (xv) otherwise use except as expressly permitted hereunder, in each case of (i) – (xv), in whole or in part, the Services (and all technology constituting or used to provide the Services) and all related Documentation (collectively, “Company Technology”).
1.6 Trial Periods. Company may make certain features of the Services (or any specific features or functionality thereof) available to Customer as part of a “free trial,” “pilot,” or “pre-release” offering, in which case, unless expressly indicated in the applicable Order: (i) Company will be free to terminate or suspend Customer’s access thereto for any reason at any time and without liability of any kind, and (ii) notwithstanding any other provision of this Agreement, any such access to the applicable part of the Services is provided on an “AS IS” and “AS AVAILABLE” basis without warranty or support of any kind, express or implied. IF CUSTOMER SUBSEQUENTLY EXECUTES AN ORDER FOR THE SERVICES FOLLOWING A FREE TRIAL, CUSTOMER’S FREE TRIAL ACCESS SHALL ROLL OVER INTO THE SUBSCRIPTION TERM SET FORTH IN SUCH ORDER UPON EXPIRATION OF THE FREE TRIAL, AND CUSTOMER EXPRESSLY AGREES THAT, UNLESS CUSTOMER HAS A SEPARATE SIGNED AGREEMENT GOVERNING CUSTOMER’S ACCESS TO AND USE OF THE SERVICES, THIS AGREEMENT, AND THE TERMS OF SERVICE HEREIN, SHALL GOVERN CUSTOMER’S USE OF SUCH SERVICES.
1.7 Implementation Services. Where specified in an Order, Company will provide Customer with implementation, onboarding, and configuration services in connection with the Services (“Implementation Services”) as described in such Order. Implementation Services are subject to Customer’s payment of the applicable one-time set-up fees set forth in the Order (“Set-Up Fees”). Set-Up Fees are non-refundable and will be invoiced upon execution of the applicable Order unless otherwise specified therein. Customer acknowledges that the timely completion of Implementation Services may depend on Customer’s reasonable cooperation, including providing access to Customer’s systems, personnel, and information as reasonably requested by Company. Company will have no liability for any delay in the delivery of Implementation Services caused by Customer’s failure to provide such cooperation.
2. Fees; Payment
2.1 Fees; Payment Terms. Customer agrees to pay to Company the fees for each of the Services that Customer purchases or uses in accordance with the pricing and payment terms set forth in the applicable Order, as may be updated in accordance with the terms of this Agreement. Unless otherwise expressly set forth in the applicable Order, fees will be charged on a per-user, per-month basis for each Team User, and all fees for the Services will be billed to Customer annually in advance. Unless otherwise expressly set forth in the applicable Order, each Order will continue and automatically renew for additional Renewal Subscription Terms in accordance with Section 3.2 (Subscription Term; Automatic Renewal), unless and until Customer terminates the applicable Order in accordance with Section 3.3 (Termination of Orders), or Customer’s Account is otherwise suspended or terminated pursuant to this Agreement. The applicable fees for any Renewal Subscription Terms will be charged at Company’s then-current published list price, until the applicable Order or this Agreement terminates in accordance with this Agreement. Company reserves the right to change the terms, including pricing, for Orders from time to time in accordance with Section 7.4 (Modifications to this Agreement). If Customer does not agree with such changes, Customer may terminate the applicable Order as set forth in Section 3.3 (Termination of Orders). Company will use commercially reasonable efforts to notify Customer of these changes, including by sending a notice to an email address associated with Customer’s Account.
2.2 Payment Method. Customer will be billed for all amounts due under this Agreement using the payment method provided by Customer to Company’s third-party payment processor at the time of sign-up; provided however, that Customer may update its payment method by contacting Company’s support team at [email protected]. Customer must provide current, complete, and accurate information for Customer’s billing account and promptly update all information to keep Customer’s billing account current, complete, and accurate. Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by law. In the event of a failed attempt to charge Customer’s payment method, Company reserves the right to retry billing Customer’s payment method. In the event that Customer or Company (through Company’s third-party payment service providers) update Customer’s credit card information to remedy a change in validity or expiration date, Company may automatically resume billing Customer for fees due under the applicable Order. Company may suspend or cancel Customer’s access to the Services associated with the applicable Order if Company remains unable to successfully charge the payment method associated with Customer’s Account. Additionally, Company may charge Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue.
2.3 Automatic Renewal. Customer must terminate any automatically renewing Order at least thirty (30) days before it renews in accordance with this Agreement in order to avoid billing of the recurring fees to Customer. By choosing an automatically renewing Order, Customer acknowledges that it has a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination. If there are no valid payment methods on file for Customer, Company may send Customer invoices for any amounts due, and Customer will pay such invoices within thirty (30) days of Customer’s receipt thereof.
2.4 Taxes. Prices do not include, and Customer must pay or reimburse Company for, all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement, or the transactions contemplated by this Agreement (other than taxes based on Company’s net income). If Company has a legal obligation to pay or collect sales tax for which Customer is responsible, Company will calculate the sales tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer’s billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides Company with a valid tax exemption certificate acceptable to the appropriate taxing authority.
3. Term and Termination
3.1 Term. This Agreement will start on the Effective Date and, unless terminated earlier in accordance with this Agreement, will remain in full force and effect while Customer retains access to or uses any feature of the Services (the “Term”). In the event that all Orders have expired or terminated, either party may terminate this Agreement upon written notice to the other party.
3.2 Subscription Term; Automatic Renewal. The duration of Customer’s initial subscription term for each Order will be as set forth in such Order (“Initial Subscription Term”), and, unless otherwise indicated in the Order, shall automatically renew on a recurring basis for additional subscription periods of the same duration as the Initial Subscription Term (as applicable, a “Renewal Subscription Term”) until terminated or cancelled by Customer or Company as set forth below. The Initial Subscription Term of an Order, together with any applicable Renewal Subscription Term(s) for such Order, are collectively, the “Subscription Term.”
3.3 Termination of Orders. Unless otherwise set forth in an Order, either party may cancel any Orders under this Agreement by providing the other party with at least thirty (30) days’ notice of its intent to terminate prior to the end of the then-current Subscription Term. Customer should send notices of termination to [email protected] or from the Billing page. If Customer cancels or Company terminates an Order as set forth above, then Customer will continue to have access to the applicable features of the Services until completion of Customer’s then-current Subscription Term (or, if terminated within thirty (30) days of renewal, completion of the next Renewal Subscription Term), provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement.
3.4 Termination for Cause. Company may terminate this Agreement and/or any applicable Order, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment for any amounts owed to Company. Additionally, either party may terminate this Agreement and all Orders in the event that: (i) the other party is in material breach of this Agreement, which is not cured within thirty (30) days after written notice of such breach, or (ii) the other party files for or is adjudicated bankrupt or suffers any other analogous event.
3.5 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and access to Company Technology will automatically terminate; (ii) all outstanding payment obligations of Customer become due and payable immediately; (iii) Customer shall promptly cease all use of the Services and Documentation and destroy or return to Company all copies of the Services and Documentation then in Customer’s possession or control; and (iv) Company shall promptly delete or destroy all copies of the Services and Documentation then in Company’s possession or control that were made available to or for Customer, and, upon Customer’s written request, provide Customer with written certification of such deletion or destruction. All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.5 (Restrictions), 2.2 (Payment Method), 2.4 (Taxes), 3.5 (Effect of Termination), 3.6 (Delinquent Accounts; Suspension), and 4 (License; Ownership) through 7 (General Provisions).
3.6 Delinquent Accounts; Suspension. Company reserves the right to suspend, terminate, or downgrade Customer’s access to or use of any or all of the Services, in its sole discretion, if any amount under an Order is due but unpaid until such time as all amounts due under this Agreement are paid in full. In addition to the amount due for the Services, Customer will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees. Additionally, Company reserves the right to suspend Customer’s access to the Services or any portion thereof at any time: (i) in the event that Company suspects that Customer is using the Services in violation of this Agreement, or (ii) if Company otherwise believes such action is reasonable to comply with any applicable law, regulation or court order.
4. License; Ownership
4.1 Customer Data. Customer will retain ownership of all of its rights in any content, materials, data, or information that is uploaded, transmitted, or otherwise provided to the Services by or on behalf of, or at the direction of, Customer, including any data, information, materials, and content that is stored in or accessible via any Connected Service (collectively, the “Customer Data”). Customer acknowledges and agrees that: (i) Team Users will have full access to Customer Data through the Services and may view, edit, modify, and permanently delete Customer Data; (ii) Company has no control over, and assumes no responsibility or liability of any kind for, any access to, use of, editing, modification, or deletion of Customer Data by Team Users or any other person authorized by Customer to access the Services; and (iii) COMPANY SHALL HAVE NO OBLIGATION TO STORE, BACK UP, MAINTAIN, OR RECOVER ANY CUSTOMER DATA, AND COMPANY WILL HAVE NO LIABILITY OF ANY KIND FOR ANY LOSS, CORRUPTION, OR UNAVAILABILITY OF CUSTOMER DATA, REGARDLESS OF CAUSE. Customer is solely responsible for maintaining independent backups of all Customer Data and for any instructions given to Team Users with respect to the access, use, modification, or deletion of Customer Data. Customer represents and warrants that it has given all necessary or appropriate notices to, and obtained all necessary or appropriate consents, authorizations, and licenses from, third parties (including individuals) and has reserved all rights to provide or make available Customers Data to Company for the uses contemplated by this Agreement.
4.2 Usage Data. Customer acknowledges that Company may collect and compile log and other data related to Customer’s use of the Services and Company’s provision, use, and performance of various aspects of the Services and related systems technologies (collectively, “Usage Data”). For clarity, Usage Data does not include or constitute Customer Data. Customer hereby grants Company a perpetual, worldwide, non-exclusive, royalty-free, fully paid-up, transferable, sublicensable, irrevocable, right and license to (i) collect, access, process, and analyze Usage Data; and (ii) use Usage Data for Company’s lawful business purposes, including to troubleshoot, improve and enhance the Services, and for other development, diagnostic, security, corrective, statistical modeling, machine learning, product analytics, and regression analysis purposes.
4.3 Ownership. Except for the limited rights granted in this Agreement, Company hereby retains all right, title and interest, including all intellectual property rights, in and to the Company Technology. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY COMPANY.
4.4 Feedback. Customer hereby grants to Company and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use, modify, transmit, reproduce, make derivative works of, disclose and exploit without restriction all feedback and suggestions provided by Customer (collectively, “Feedback”), including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Company Technology or any portion thereof.
4.5 No Inclusion of PHI. Customer represents and warrants that (i) Customer Data shall not constitute, incorporate, or include any Protected Health Information (as defined in 45 C.F.R. § 160.103) (“PHI”); and (ii) Customer shall not otherwise provide or give Company access to any PHI in connection with the Services or this Agreement. Customer will defend at its expense any suit brought against Company, and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim arising out of or relating to Customer’s breach or alleged breach of this subsection 4.5.
5. Indemnification
Customer shall indemnify, defend, and hold harmless Company and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the “Company Entities”) from and against any third-party claim, loss, or damage (including reasonable attorneys' fees), arising out of or relating to: (i) an allegation that the access or use by or on behalf of Company in accordance with this Agreement of any of the Connected Services infringes or misappropriates any third party’s rights or violates applicable laws, (ii) the use of the Services in combination with material, content, software, technology, products, data or services not developed and provided by Company, including without limitation the Connected Services and Customer Data, (iii) Customer’s failure to use the Services in accordance with this Agreement or otherwise comply with the terms of this Agreement, (iv) any other data or materials obtained at the request of Customer, or (v) Customer’s violation or alleged violation of Sections 1.3 (Teams and Administrators) or 1.5 (Restrictions). Company will provide Customer with: (a) prompt written notice of; (b) control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer (each at Customer’s sole expense) in connection with the defense or settlement of, any such claim. Notwithstanding the foregoing, Company will at all times have the option to participate in any matter or litigation, including through counsel of its own selection, if desired, the hiring of such separate counsel being at Company’s own expense.
6. Warranties; Disclaimer; Limitation of Liability
6.1 Customer Warranties. Customer represents, warrants, and covenants that it has and will maintain during the Term all necessary right, title, interest, authorizations, and permissions to: (i) grant, provide, or provide access to any Feedback, and (ii) access and permit Company to access on Customer’s behalf any Connected Services, as applicable. Customer represent and warrant that it is not a “covered person” as defined under the Preventing Access to U.S. Sensitive Personal Data and Government-Related Data by Countries of Concern or Covered Persons (“Bulk Sensitive Personal Data Rule”), 28 C.F.R. part 202. During the Agreement’s term, Customer shall not become a “covered person” as defined by the Bulk Sensitive Personal Data Rule.
6.2 Disclaimer. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE COMPANY TECHNOLOGY AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY COMPANY OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS; (ii) THE COMPANY ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE COMPANY TECHNOLOGY AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY COMPANY OR THROUGH THE SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE OR RELIANCE. THE COMPANY ENTITIES DO NOT WARRANT ANY THIRD-PARTY CONTENT OR FUNCTIONALITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY ENTITIES DO NOT WARRANT THAT THE COMPANY TECHNOLOGY AND ANY OTHER MATERIALS, RECOMMENDATIONS OR CONTENT MADE AVAILABLE THROUGH THE COMPANY TECHNOLOGY (INCLUDING THE SERVICES) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE COMPANY TECHNOLOGY (INCLUDING THE SERVICES) WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. AS BETWEEN THE PARTIES, CUSTOMER IS SOLELY RESPONSIBLE FOR REVIEWING AND DETERMINING WHETHER OR NOT, OR HOW TO, USE ANY OUTPUT, CONTENT, MATERIALS OR DATA THAT IS MADE AVAILABLE VIA THE SERVICES. WITHOUT LIMITING THE FOREGOING, AS BETWEEN THE PARTIES, CUSTOMER IS SOLELY RESPONSIBLE FOR, AND COMPANY WILL HAVE NO LIABILITY FOR, ANY DECISIONS MADE BY CUSTOMER BASED UPON ANY OUTPUT, CONTENT, MATERIALS OR DATA THAT IS PROVIDED BY THE SERVICES, INCLUDING ANY DECISIONS MADE BY CUSTOMER IN CONNECTION WITH THE SERVICES, REGARDLESS OF ANY RESULTS OR OUTPUT GENERATED BY THE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER’S USE OF OR ACCESS TO THE COMPANY TECHNOLOGY OR ANY OTHER OUTPUT, MATERIALS, DATA OR CONTENT THAT IS MADE AVAILABLE BY COMPANY OR THROUGH THE SERVICES. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE COMPANY TECHNOLOGY (INCLUDING THE SERVICES) AND ANY OUTPUT, CONTENT, DATA OR MATERIALS THAT ARE ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED FROM COMPANY OR THROUGH THE COMPANY TECHNOLOGY, INCLUDING WITHOUT LIMITATION ANY CONNECTED SERVICES, IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY, INCLUDING ANY CONNECTED SERVICES USED IN CONNECTION WITH THE COMPANY TECHNOLOGY OR ANY LOSS OF DATA OR CUSTOMER DATA.
6.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY ENTITIES’ TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF (I) AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE; OR (II) ONE HUNDRED DOLLARS ($100). EXCEPT FOR ANY ACTION BY COMPANY FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN TWELVE (12) MONTHS AFTER THE DATE THE CLAIM AROSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
7. General Provisions
7.1 Assignment. Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Company may assign this Agreement without the written consent of Customer as part of the conversion to a corporation or other corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
7.2 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.
7.3 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for San Francisco, California for any lawsuit filed there against Customer by Company arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
7.4 Modifications to this Agreement. Company may modify this Agreement from time to time by giving notice to Customer through Company’s online user interfaces, by sending Customer an email to an email address associated with Customer’s Account, by prominently posting notice of the changes on the Services, or in any other manner permitted by this Agreement. In the event that the last email address that Customer has provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, Company’s dispatch of the email containing such notice will nonetheless constitute effective notice of the changes to this Agreement described in the notice. Unless a shorter period is specified by Company (e.g., due to changes in the law or exigent circumstances), the modifications become effective upon the earlier of (i) thirty (30) days after Company’s notification or (ii) renewal of Customer’s current Subscription Term or entry into a new Order. If Company specifies that the modifications to this Agreement will take effect prior to Customer’s next renewal or Order and Customer notifies Company in writing at [email protected] of Customer’s objection to the modifications within thirty (30) days after the date of such notice, Company (at its option and as Customer’s exclusive remedy) will either: (a) permit Customer to continue under the existing version of the Agreement until expiration of the then-current Subscription Term, if any (after which time the modified Agreement will go into effect), or (b) allow Customer to terminate this Agreement and receive a pro-rata refund of any pre-paid fees allocable to the terminated portion of the applicable Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the modified version of this Agreement becomes effective will constitute Customer’s acceptance of such modified version.
7.5 Export Controls; Government Rights. Customer agrees that Customer will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Company Technology or any technical information about the Company Technology to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export. Customer hereby represents and warrants that: (i) Customer is not located in 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, and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. The Company Technology is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
7.6 Miscellaneous. This Agreement (together with all Orders) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to such subject matter. In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement will apply unless the Order expressly indicates that a provision of the Order should supersede contrary language in the Agreement. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Company to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted this Agreement. Except as set forth in Section 7.4 (Modifications to this Agreement), this Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed. Notices to Customer shall be sent to the address set forth on the Order. Notices to Company shall be given to [email protected]. Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, or three (3) days after deposit in the mail. The relationship between the parties shall be that of independent contractors. Company may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.