APPZEN TERMS OF SERVICE
 

These Terms of Service (“TOS”) govern and apply to any services provided by AppZen (the “Services”) to the entity or other organization to which AppZen provides the Services (the “Customer”) pursuant to any offering presented via the AppZen web site, as well as pursuant to any other offering confirmed by AppZen in writing that references these TOS (not including offerings provided pursuant to definitive service agreements and/or Sales Order Forms executed directly between Customer and AppZen). By using, receiving, and/or accessing the AppZen Services in any way, the Customer representative, on behalf of the representative and Customer, agrees to be bound by these TOS, and the Customer representative represents and warrants that the representative has authority to so bind Customer and has read and understand these TOS in full. The Customer representative similarly agrees to the AppZen Privacy Policy (located at https://www.appzen.com/privacy-policy ) on Customer’s behalf. If Customer does not agree to be bound by the TOS and to accept the Privacy Policy, Customer may not use the Services in any respect. AppZen may modify these TOS and/or the Privacy Policy at any time in its sole discretion, and Customer’s continued use of the Services constitutes its acceptance of any such subsequent modifications.

  1. Provision of Services
    1. 1.1Services. Subject to Customer’s compliance with the terms herein, AppZen will provide Customer with the Services identified in a sales order form, registration, or other confirmation document provided by AppZen. Such confirmation document may contain additional terms (e.g., with respect to volumes, timing, and/or payment), and such additional terms will be deemed binding and incorporated by reference as though fully set forth herein.

      Subject to the terms and conditions set forth herein, AppZen grants to Customer a limited, non-exclusive, non-transferable, worldwide license during the term of these TOS, without the right to sublicense, to access and use the Services (and, in connection with use of the Services, the output therefrom) for evaluation purposes and/or for its internal business use. The Services, together with any associated documentation, will be provided in AppZen’s discretion and subject to such conditions as AppZen may reasonably require. AppZen may review and monitor all use of the Services. AppZen may in its discretion include additional services (e.g., implementation support) that will also be subject to these TOS. Customer will maintain, at its own expense, all systems required for it to access the Services.
  2. Customer Authorizations, REPRESENTATIONS, AND RESTRICTIONS
    1. 2.1Authorizations. Customer grants AppZen a non-exclusive, worldwide, royalty-free, irrevocable and fully paid license to use any information provided or made available by Customer (directly or indirectly) including any personal data (collectively, the “Raw Data”) to provide and/or improve the Services and/or machine learning algorithms incorporated therein and/or any other AppZen products or services and for other technical or business purposes (including disclosure (in de-identified form only)), and Customer directs AppZen to so use the Raw Data. AppZen is authorized to use the subprocessors set forth at https://www.appzen.com/privacy/subprocess in connection with the provision of the Services pursuant to these TOS. Customer grants AppZen the right to use Customer’s trademarks, name and/or logo for reasonable promotional use during the term of these TOS and/or as needed to provide the Services. Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Raw Data, including any changes or deletions thereto.
    2. 2.2Representations. Customer represents and warrants that it will comply with all applicable laws, rules, and regulations in relation to its use of the Services, including but not limited to any laws, regulations, standards, and self-regulatory guidelines relating to privacy, data protection, security, breach notification, consumer protection, or the processing of personal data (including but not limited to the California Consumer Privacy Act (Cal. Civ. Code §§ 1798.100-1798.199) and the General Data Protection Regulation (Regulation (EU) 2016/679)), and/or export compliance (and Customer acknowledges that the Services are subject to U.S. Export Administration Regulations (“EAR”). Customer agrees that to the extent personal data from the European Economic Area, the United Kingdom or Switzerland are processed by AppZen, the AppZen Data Processing Addendum (including the Standard Contractual Clauses and appendices) at https://www.appzen.com/data-processing-addendum/ will apply, and execution of these TOS will constitute execution of the Data Processing Addendum. Customer further represents and warrants that the Raw Data will not contain (i) any data for which Customer does not have all rights, power, and authority necessary for its collection, use, and processing under these TOS; (ii) any personal health information regulated by the Health Insurance Portability and Accountability Act of 1996; (iii) any cardholder data as defined under the Payment Card Industry Data Security Standard; (iv) any data with respect to which Customer’s usage would violate any applicable laws, rules, or regulations; or (v) any data that infringes or misappropriates the rights of any person or third party, or that is deceptive, defamatory, obscene, or unlawful, or that contains any viruses, worms or other malicious computer programming codes intended to damage AppZen’s systems or data. Customer further represents and warrants that AppZen’s processing of Raw Data under these TOS will not cause AppZen to violate any applicable laws, rules, or regulations. Customer will defend, at Customer’s expense, any third party claim brought against AppZen, and indemnify AppZen for any losses, damages, or costs related to such claim and will pay any settlement AppZen approves, or any damages finally awarded in such suit, insofar as such claim arises out of or relates to Customer’s breach or alleged breach of this section.
    3. 2.3Restrictions. With respect to the Services, Customer will not (and will not permit others to): (a) use it in excess of contractual usage limits and/or without authorization, or circumvents usage limits or technological access controls; (b) license, sub-license, sell, resell, rent, lease, transfer, distribute, time share, or otherwise make any of it available for access by third-parties; (c) access it for the purpose of developing or operating products or services for third-parties in competition with the Services or AppZen; (d) disassemble, reverse engineer, or decompile it; (e) copy, create derivative works based on, or otherwise modify it (except as provided by law, which will require prior written notice to AppZen); (f) remove or modify a proprietary rights notice in it; (g) use it with respect to material protected by copyright or other intellectual property rights (including rights of publicity) without lawful rights to do so; (h) use it to create, use, send, store, or run viruses or other harmful computer code or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; (i) access or disable any AppZen or third-party data, software, or network (other than Customer’s Service instance); or (j) use it for time- or mission-critical functions. Customer will notify AppZen of any unauthorized access to or use of the Services, including but not limited to any action in violation of this section.
  3. INTELLECTUAL PROPERTY
    1. 3.1Ownership of the Services. The Services and all worldwide intellectual property, industrial property, and other proprietary rights available under applicable law, including all rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, algorithms, and databases, in each of the foregoing including any updates, upgrades, improvements, configurations, extensions, and derivative works developed at any time, are the exclusive property of AppZen and its suppliers. All rights in and to the Services not expressly granted to Customer in these TOS are reserved. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof.
    2. 3.2Output Values; Aggregated Data; Feedback. AppZen owns all rights in output generated by use of the Services and the underlying technology used to generate such output. Nothing in these TOS will be deemed to restrict or limit AppZen’s right to perform similar services for any other party or to assign any employees or subcontractors to perform similar services for any other party or to use any information incidentally retained in the unaided memories of its employees. Customer agrees that AppZen may use the Raw Data in a de-identified format in combination with other de-identified data, as well as data that does not identify Customer or its users that relates to the provision, use, or performance of aspects of the Services (“Aggregated Data”), as well as data and telemetry regarding use, performance, and/or provision of the Services (“Usage Data”) to provide the Services. Customer further agrees that AppZen may also, during and after the term of these TOS, use or disclose such Aggregated Data and/or Usage Data (in de-identified form) to improve the Services, AppZen’s machine learning algorithms, and/or other AppZen technologies or offerings, and for other technical and business purposes. If Customer provides suggestions, ideas, or other feedback regarding the Services (collectively, “Feedback”) Customer grants to AppZen a royalty-free, fully paid, sublicensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to use, license, and commercialize Feedback (including by incorporation of Feedback into any AppZen products or service).
  4. LIMITATION OF LIABILITY
    1. 4.1TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, APPZEN’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THESE TOS AND/OR THE SERVICES PROVIDED HEREUNDER WILL NOT EXCEED $1000. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT INCREASE THIS LIMIT. EXCEPT WITH RESPECT TO CUSTOMER’S CONFIDENTIALITY OBLIGATIONS OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 2, TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TOS AND/OR THE SERVICES PROVIDED HEREUNDER. THE FOREGOING LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF DAMAGES BEYOND THESE LIMITATIONS. The parties agree that the limitations of liability set forth in this section will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy, that these TOS are entered into in reliance upon these limitations of liability, and that all such limitations form an essential basis of the bargain between the parties.
    2. 4.2Disclaimer. THE SERVICE IS PROVIDED ON AN “AS-IS, WHERE IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, APPZEN MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES. APPZEN DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
  5. CONFIDENTIALITY
    1. 5.1Protection of Confidential Information; Exceptions. During the term of these TOS, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Services and any materials related thereto will be AppZen Confidential Information, and the Raw Data will be Customer Confidential Information. The Receiving Party will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under these TOS, for as long as such information is retained. The Receiving Party will limit access to the Confidential Information to its and its affiliates’ employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. The Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or on termination of these TOS, the Receiving Party will return or destroy all copies of the Confidential Information that the Receiving Party does not have a continuing right to use, provided that this obligation will not extend to material retained as required by law, or ordinary back-up or archival copies. The confidentiality obligations set forth herein will not apply to information that (a) becomes public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of confidentiality obligations; (c) the Receiving Party can prove was already known to it without restriction at the time of disclosure; or (d) the Receiving Party can prove was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. The Receiving Party may disclose Confidential Information as necessary to enforce rights under these TOS or as required by law, provided that the Receiving Party gives prompt advance written notice of the requirement in question.
  6. MISCELLANEOUS
    1. 6.1Term; Governing Law; Entire Agreement; Modification. These TOS come into force on the earlier of the date that Customer accepts them via the AppZen website, requests access to the Services directly from AppZen, or begins accessing or using the Services or any part thereof. These TOS will remain in effect until AppZen ceases to provide the Services to Customer or unitl the parties otherwise agree in writing. AppZen may also terminate these TOS and the provision of Services hereunder at any time in its sole discretion. Sections 2, 3, 4, and 5 shall survive any termination or expiration of these TOS. These TOS are governed by the laws of the State of California, without regard to principles of conflicts of law. Any dispute arising out of or related to these TOS or the Services provided hereunder will be brought exclusively in the state or federal courts in Santa Clara County, California, and the parties irrevocably consent to the jurisdiction thereof. These TOS constitute the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. AppZen may modify these TOS at any time in its sole discretion. Except for such modification by AppZen, no modification of these TOS, or waiver of any rights hereunder, will be effective unless in writing and signed by an authorized signatory of Customer and AppZen.