Effective: October 1, 2024
Last Updated: October 1, 2024
Terms Of Service
Software-As-A-Service (SaaS) Agreement
Abusix has updated its Terms of Service, also known as the Software-as-a-Service (SaaS) Agreement (the “Agreement”), effective October 1, 2024 (the “Effective Date”). For the prior version of our Terms of Service, please click here.
1. INTRODUCTION
THIS AGREEMENT BETWEEN Abusix AND ITS AFFILIATES (COLLECTIVELY, “Abusix”, “WE”, “US”, OR “COMPANY”) AND THE INDIVIDUAL OR LEGAL ENTITY LICENSING THE SOFTWARE AND/OR SERVICES UNDER THIS AGREEMENT AND/OR UNDER AN APPLICABLE ORDER FORM (“YOU”, “CUSTOMER” AND “END USERS”) AND TOGETHER WITH ABUSIX, THE “PARTIES”) GOVERNS CUSTOMERS’ ACCESS AND USE OF THE SOFTWARE AND/OR SERVICES.
1.1 By accessing or subscribing to Our Services (the “Services”), Customer and End User acknowledge that they have read, understand, and agree to be bound by this Agreement and Abusix Privacy Notice.
1.2 The Individual agreeing to this Agreement represents to Abusix that they have the authority to bind Customer and any Affiliates to this Agreement.
1.3 This agreement may be modified from time to time, and all contract renewals will be subject to the Agreement in effect at the time of the renewal.
1.4 Customer may contract separately with a reseller (“Reseller”) regarding pricing and invoicing for the Services, in which case Section 5 (Fees) of this Agreement will have no effect, and any refunds or service credits payable in accordance with this Agreement shall be paid to Reseller.
1.5 Those who do not agree with this Agreement or do not have the power and authority to act on behalf of and bind Customer should not accept this Agreement or continue to use or access the Services.
2. USE AND ACCESS TO THE SERVICES
2.1 Subject to this Agreement, we grant Customer a limited, non-transferable, and non-exclusive right to access and use Abusix’s proprietary hosted software, data services, and the related documentation (the “Software” or “Services”) via a web browser, various online marketplaces or other delivery mechanisms. Abusix Services are licensed, not sold, to Customer. Abusix is not obligated to make available or deliver any copies of programs or code in any way, shape, or form. Customer’s license to use the Services is subject to Customer’s compliance with this Agreement and any associated end user license agreement made available via the online marketplaces.
2.2 Accessing the Services. Access to the Services may be procured via Abusix’s websites, online marketplaces, or by executing an Order Form entered into by and between Customer and Abusix. Customers must purchase a subscription for each End User who accesses or uses the Services.
2.3 Customer’s Responsibilities Regarding End Users. Customer is responsible for its End Users’ conduct and ensuring that End Users abide by the terms of this Agreement at all times in connection with their use of the Services. It is Customer’s responsibility to (i) inform End Users of any relevant Abusix policies, practices, and settings that Customer elects to enforce related to its End Users’ use of the Services; (ii) give all notices to and obtain any rights, permissions or consents from its End Users that are necessary for Customer’s lawful use of the Services and the Processing of Customer Data by or on behalf of Abusix in connection with Customer’s use of the Services; and (iii) respond to and resolve any dispute between Customer and an End User related to or based on Customer Data and/or Customer’s Processing of that Customer Data in connection with Customer’s use of the Services.
2.4 Login Credentials. Customer and End User are responsible for all login credentials, including usernames and passwords. Abusix shall not be liable for any damages or losses that may occur due to Customer failure or End Users’ failure to maintain the confidentiality of their login credentials. End Users are not permitted to share or use the same login credentials to the Services. Abusix reserves the right to refuse registration or cancel passwords it deems inappropriate. Customer is responsible for notifying Abusix at [email protected] if it becomes aware of any unauthorized use of or access to its Customer Account or any End User Account.
2.5 Restrictions.
(a) Customer and End Users will not:
(i) use, or permit the use of, the Services in any manner that (a) amounts to illegal activity, infringes or violates the rights of others, or violates any applicable law or regulation, including but not limited to where Customer is required to obtain permissions or authorizations to permit Abusix to perform its obligations hereunder, or where Customer is prevented from transmitting certain information via the Services or concerning unsolicited email; (b) introduces, distributes or transmits any viruses, malicious code, vulnerabilities, weakness in the computational logic (whether known or latent) or any other items of a harmful nature; or (c) could reasonably be expected to interfere with, impair or disrupt the Services or cause Abusix to be placed on any blocklist or denylist by an internet service provider;
(ii) upload to Abusix’s platform, Collateral which: (a) infringes on the intellectual property rights or any rights related to publicity or the privacy of any third party; (b) is defamatory, libelous, threatening or harassing in nature; (c) is in violation of any applicable laws (including those laws relating to obscenity or pornography); and/or (d) purports to be originated from a governmental agency (including, without limitation, agencies related to law enforcement, tax or immigration). “Collateral” means Customer’s own written, photographic, and/or videographic content or material (including any names, images, or other intellectual property of a third party, to the extent Customer uses the Service(s) to upload such content or material. In the event Abusix receives notice from a third party alleging that any Collateral is in breach of this Section 2.5 (a) (ii), then Abusix will, to the extent allowable by law, promptly notify Customer and Customer will immediately remove such Collateral from the platform;
(iii) license, sell, rent, lease, transfer, grant rights in, or access to the Services for commercial gain; or
(iv) copy, disseminate, allow unauthorized access to, disassemble, reverse engineer, or decompile the Services or any components thereof.
(b) Customer will defend, indemnify, and hold harmless Abusix in the event of any third-party claim or regulatory action arising out of Customer’s breach (or alleged breach) of the terms of Section 2.5 herein.
2.6 Tools. Customer shall be responsible for obtaining, maintaining, and securing any telecommunications, internet services, software, and equipment used to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the previous. Abusix will not be responsible for any loss or corruption of data, lost communications, or any other loss.
2.7 Support and Maintenance. The Services may be temporarily unavailable for scheduled or unscheduled emergency maintenance, either by Abusix or third-party providers or because of other causes beyond Abusix’s reasonable control. However, Abusix shall use reasonable efforts to provide advance notice of any scheduled service disruption via https://status.abusix.com or for more extended maintenance via email. Abusix may access Customer Accounts or End User Accounts to respond to and resolve support requests.
3. CONFIDENTIALITY
3.1 Protection of Confidential Information. The Receiving Party agrees (i) to protect the confidentiality of Confidential Information using at least the same degree of care and discretion as it uses with its Confidential Information, but in no event less than a reasonable degree of care; and (ii) not to disclose (except in performance of the Services or as otherwise permitted by this Agreement) to any third person any such Confidential Information without the express prior written consent of the Disclosing Party. The Receiving Party may disclose Confidential Information to its Representatives on a strict need-to-know basis and only to those obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth herein.
3.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent legally required in connection with any legal or regulatory proceeding provided, however, that in such event, the Receiving Party will, when permitted by law, provide advance notice to the Disclosing Party.
3.3 Equitable Relief. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party may be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
3.4 Information Sharing. Except as described in this Policy, Abusix will not give, sell, rent, or loan any personal information to any third party. We may disclose such information to respond to subpoenas, court orders, or legal processes, establish or exercise our legal rights, or defend against legal claims. We may also share such information if we believe it is necessary to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of our Terms of Service, or as otherwise required by law. Abusix may also provide non-personal, summary, or group statistics about our customers, sales, traffic patterns, and related Site information to reputable third-party vendors. Still, these statistics will include no personal information.
4. DATA PROTECTION, USAGE AND FEEDBACK
4.1 Data Protection. Abusix shall implement and maintain technical, organizational, and physical measures designed to protect the confidentiality, integrity, and availability of Customer Data in Abusix’s possession, custody, or control. The Parties agree to the terms of Abusix’s Data Processing Addendum, incorporated into this Agreement.
4.2 Usage Data. Notwithstanding anything to the contrary, Abusix shall have the right where permitted by law to collect, aggregate, and analyze anonymized or de-identified data and other information relating to Customer and End Users’ use of the Services, including, without limitation, information concerning Customer Data and data derived therefrom (collectively, “Usage Data”). Abusix will be allowed during and after the Subscription Term to use Usage Data to analyze, support, develop, operate, and improve the Services and other Abusix offerings and for other lawful business purposes, including, without limitation, to generate industry benchmarks or best practice guidance, recommendations, or similar reports.
4.3 Feedback. By submitting any feedback or suggestions regarding the Services or sharing such feedback with any Representative of Abusix, Customer grants to Abusix an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to Customer, End User, or any other Customer Representative. No rights or licenses are granted except as expressly set forth herein.
5. FEES AND PAYMENTS
Reseller Provision: This section 5 does not apply if Customer has contracted separately with a Reseller regarding pricing and invoicing for the Services. It will only apply if Abusix invoices Customer directly for the Services.
5.1 Calculation of Subscription Charges. Customers may purchase the Services through Abusix’s website, online marketplace, or by executing an Order Form. If Abusix and Customer execute an Order Form, Customer will pay Abusix following the terms of such Order Form. Subscription Charges are billed in advance and are nonrefundable unless otherwise stated herein. If Customer’s use of the Services requires the payment of additional Subscription Charges under this Agreement, Customer shall be charged for such usage, and Customer agrees to pay the additional Subscription Charges from the date of its first usage. The subscription fees may be annually adjusted to compensate for increasing running costs (within reason). These price adjustments are applicable at the start of each Renewal Term. You may object within two weeks of notification if the price increase exceeds 5% of the previous price.
5.2 Payment and Billing. Unless otherwise expressly outlined in this Agreement or an Order Form, all Subscription Charges are due in full upon commencement of the Subscription Term. Unless Abusix agrees to a substitute payment mechanism, a valid credit card is required to subscribe to the Services. Customer authorizes Abusix to automatically charge Customer’s selected payment method for Subscription Charges on or after the starting date of each subsequent Subscription Term unless Customer’s subscription to the Services terminates as outlined in Section 6.2 below. Abusix may choose to bill through an invoice, in which case Abusix must receive full payment for invoices within thirty (30) days from the invoice date. If Customer fails to pay its Fees within five (5) days of Abusix’s notice to Customer that payment is delinquent, or if Customer does not update payment information upon Abusix’s request, in addition to Abusix’s other remedies, Abusix may suspend access to and use of the Services by Customer and End Users. Customer agrees to promptly update its Customer Account information, including payment information, with any changes that may occur (for example, a change in billing address or credit card expiration date).
5.3 Taxes. Unless otherwise stated in an Order Form, Abusix’s charges do not include any Taxes. Customer is responsible for paying Taxes assessed in connection with Customer’s subscription to the Services except those assessable against Abusix as measured by its net income. Abusix will invoice Customer for such Taxes if Abusix believes that Abusix has a legal obligation to do so, and Customer agrees to pay such Taxes if invoiced. Abusix agrees to exempt Customer from any Taxes for which Customer provides to Abusix a tax exemption certificate; provided, however, that no such exemption shall be extended to Customer following written notice to Abusix from a taxing authority of appropriate jurisdiction that Customer does not qualify for the claimed exemption.
5.4 Billing Disputes. If Customer believes that Abusix has billed Customer incorrectly, then Customer will notify Abusix no later than fifteen (15) days of receipt of the applicable invoice. Such notice will include a description of the basis for Customer’s dispute. If only part of an invoice is disputed, then Customer will pay the undisputed amount as provided herein. The parties will work together in good faith to resolve any such dispute promptly. Billing Inquiries should be directed to Abusix’s customer support department at [email protected].
5.5 Upgrades. If Customer chooses to upgrade its Subscription during a Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged following the Subscription Charges between Customer and Abusix during the applicable Subscription Term. The subscription term for additional usage shall be coterminous with the then-current Subscription Term for the existing Services. Customer’s Subscription Charges will reflect any upgrades in subsequent Subscription Terms. Any discount provided to Customer applies only to the initial Subscription Term detailed in an Order Form and will not be applied to subsequent Subscription Terms.
5.6 Downgrades. Customers may not downgrade their Subscription during any Subscription Term. If Customer desires to downgrade its Subscription under any Subscription for a subsequent Subscription Term, Customer must provide Abusix with thirty (30) days written notice before the end of Customer’s then-current Subscription Term. Downgrading a Subscription Plan may cause a loss of content, features, or capacity of the Services available to Customer under its Customer Account. Abusix is not responsible for such loss. No credits or refunds will be issued for usage less than the purchased number of subscriptions or unused time on subscriptions.
5.7 Payment Portals. If Customer mandates Abusix to use a vendor payment portal or compliance portal that charges Abusix a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Abusix shall invoice Customer for this fee, and Customer is obligated to pay the cost of this fee.
6. TERM AND TERMINATION
6.1 Term. Subject to termination provisions below, Abusix shall provide the Services to Customer for the initial Subscription Term, which shall then be automatically renewed and extended for the same duration as the previous Subscription Term (“Renewal Term”). Either Party may request termination at least thirty (60) days before the end of the then-current Subscription Term, and Customer may submit such request for termination by notifying Abusix at [email protected]. Abusix shall notify the Reseller of renewal and new pricing (if applicable) before the end of the then-current Subscription Term to enable the Reseller to inform Customer of such renewal within a reasonable time.
6.2 Termination.
(a) For Breach. Either Abusix or Customer may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within thirty (30) days after written notice to the other Party. In no event will Abusix’s termination for breach relieve Customer of its obligation to pay any Fees payable to Abusix for the period before termination. Additionally, if Customer has purchased the Services through a Reseller, Abusix may terminate this Agreement and all related Service Orders if Customer has not paid Reseller on time and has not cured such non-payment within fifteen (15) days of receipt of written notice.
(b) For Bankruptcy. Unless prohibited by law, either party may terminate this Agreement immediately on giving written notice to the other party if the other party: (i) becomes insolvent, (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy pursuant to any insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.
(c) For Restricted Party Screening. The parties acknowledge that Abusix on a regular basis conducts a review of its customers to determine whether restrictions or sanctions apply with regard to transacting with them, including but not limited to, those referred to in Section 12.12, (“Restricted Party Screening” or “RPS”). If Abusix considers, in its sole discretion, but acting reasonably based on its standard RPS process, that the results of the RPS in relation to Customer are unsatisfactory, Abusix may terminate this Agreement and any Services Order related hereto with immediate effect upon written notice to Customer. Upon termination pursuant to this Section 6.2(c), Abusix shall have no further obligations to Customer hereunder.
(d) Upon any termination, Abusix may immediately deactivate Customer Account and any associated End User Account; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay Fees accrued or payable to Abusix or of any liability pertaining to Customer’s use of the Services prior to such termination. Except for Customer’s termination for Abusix’s uncured material breach of this Agreement, Customer must pay any unpaid Subscription Charges and Fees incurred for the remainder of the then-current Subscription Term.
(e) No Other Rights of Termination. Customer acknowledges that it has no rights of termination other than those specifically set out in this Agreement.
6.3 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and its Authorized User’s right to access and use the Services will immediately terminate, Customer and its Authorized Users will immediately cease all use of the Services, and each party will return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. Abusix may destroy or otherwise dispose of any Customer Data and Customer Report Data in its possession unless Abusix receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent backup of Customer Data and Customer Report Data. Abusix will use all reasonable efforts to deliver the backup to Customer within thirty (30) days of receiving such a written request. Customer will pay all reasonable expenses incurred by Abusix in returning Customer Data and Customer Report Data to Customer. Also, upon expiration or termination of this Agreement, Abusix will cease use of Customer Marks; provided, however, that (a) Abusix will have a reasonable time to remove Customer Marks from promotional materials, (b) Abusix will be entitled to exhaust materials printed during the term that include Customer Marks, and (c) Abusix will not be required to remove any such printed materials from circulation.
6.4 Suspension and Other Remedial Action. Abusix may suspend the Services if Customer fails to pay any undisputed amount within fifteen (15) days (or such longer period as Abusix may decide from time to time) of Abusix’s (or Reseller’s) notice to Customer of such failure to pay. Abusix may restrict or suspend the Service if Customer actively exceeds the allowed usage and ignores multiple requests to upgrade to the appropriate subscription level. Additionally, Abusix reserves the right to take that remedial action it deems necessary without liability to Abusix, including the immediate suspension or termination of a Customer Account or an End User Account, upon notice to Customer should Customer or an End User if, in Abusix’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. Abusix will use commercially reasonable efforts to provide Customer with advance notice of terminations and suspensions when practicable. Still, if Abusix determines that the actions of a Customer or End User endanger the operation of the Services or pose a threat of imminent harm to others, Abusix may suspend access to the Services without notice. Abusix reserves the right to notify Customer and/or the administrator associated with Customer Account concerning an End User’s violation of the terms of this Agreement.
6.5 Survival. Customer’s payment obligations, the provisions of this Section and the provisions of the following Sections will survive any expiration or termination of this Agreement: Section 2.5 (Restrictions), Section 3 (Confidentiality), Section 4 (Data Protection, Usage and Feedback), Section 7 (Intellectual Property Rights), Section 8 (Warranty and Disclaimer), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 12 (General), and Section 13 (Definitions).
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Of Abusix. The Services are made available on a limited access basis, and no ownership right is conveyed to Customers or End Users. Abusix owns and retains all intellectual property rights in and to (i) the Services (excluding only Customer Data) and all trademarks, logos, and service marks utilized by Abusix in connection with the delivery of the Services; (ii) all improvements, enhancements or modifications of the Services; and (iii) any Software, applications, inventions or other technology developed in connection with supporting the Services.
7.2 Of Customer. As between Customer and Abusix, Customer shall own all intellectual property rights in and to Customer Data. Customer grants to Abusix on behalf of itself and its End Users a worldwide, non-sublicensable, non-transferrable (except to a permitted assignee of Abusix), non-exclusive, limited license to access, use, copy, reproduce, Process, adapt, distribute, publish, transmit, export and display Customer Data as reasonably necessary (i) to provide, maintain and update the Services; (ii) to prevent or address service, security, support and technical issues; and (iii) as expressly permitted by this Agreement or by Customer in writing.
8. WARRANTY AND DISCLAIMER
8.1 Abusix Warranties. Abusix warrants that during an applicable Subscription Term, the Services will perform materially following the Documentation. Abusix’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Abusix to use commercially reasonable efforts to correct the reported non-conformity, or if Abusix determines such remedy to be impracticable, either party may terminate the Agreement and Customer will receive a pro-rata refund of any pre-paid, unused Fees for the terminated portion of the Subscription Term. The warranties herein do not apply if the error was caused by Customer or End User’s misuse or unauthorized modification of (i) the Services or (ii) Third Party Services.
8.2 Customer Warranties. Customer warrants that it is entitled to transfer Customer Data to Abusix so that Abusix and its authorized third-party service providers may lawfully use, Process, and transfer Customer Data following this Agreement on Customer’s behalf. Customer agrees to comply with all applicable laws when using the Services.
8.3 Mutual Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party following its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
8.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ABUSIX EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ABUSIX DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, VIRUS-FREE, OR FREE FROM HARMFUL COMPONENTS, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. ABUSIX DOES NOT WARRANT THAT IT WILL REVIEW CUSTOMER DATA FOR ACCURACY OR PRESERVE OR MAINTAIN CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. ABUSIX SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ABUSIX. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ABUSIX OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. INDEMNIFICATION
9.1 Abusix’s Indemnification Obligations. Abusix will defend Customer Parties from and against any third party claim alleging that Customer’s use of the Services as contemplated under this Agreement violates the intellectual property rights of such third party and will indemnify Customer Parties for damages awarded in a final judgment against Customer Parties in connection with or as a result of such claim or any amounts paid by Customer Parties under a settlement approved by Abusix, including reasonable fees of attorneys engaged by Abusix in connection with the defense or settlement of such claim. Notwithstanding the foregoing, Abusix shall not be required to indemnify Customer Parties to the extent the claim against Customer Parties arises from (i) Customer or any End User’s use of the Services in a manner that violates this Agreement; (ii) modification of the Services by anyone other than Abusix or its Representatives, unless approved by Abusix; (iii) the combination, operation or use of the Services with software not provided by Abusix, unless approved by Abusix; or (iv) violations of third party rights caused by Customer Data.
9.2 Customer’s Indemnification Obligations. Customer will defend Abusix Parties from and against any third party claim, action, suit, proceeding, or demand arising from or related to (i) Customer’s or an End User’s violation of applicable laws while using the Services; and (ii) any third party claim arising from or related to Customer Data, and will indemnify Abusix Parties for damages awarded against the Abusix Parties in connection with or as a result of such claim or any amounts paid by Abusix Parties under a settlement approved by Customer, including reasonable fees of attorneys engaged by Customer in connection with the defense or settlement of such claim.
9.3 Potential Infringement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction or believed by Abusix to be infringing, Abusix may at its option and expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license at Abusix’s expense to continue using the Services; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder, in which case Abusix’s sole liability (in addition to its indemnification obligations above) shall be to provide Customer with a pro-rated refund of prepaid but unused Subscription Charges applicable to the remaining portion of Customer’s current Subscription Term. Sections 9.1 and 9.3 state Abusix’s sole liability concerning, and Customer Parties’ exclusive remedy against Abusix for, any infringement claim.
9.4 Indemnification Process. In the event of a potential indemnity obligation, the Party seeking indemnification must (i) provide prompt notice to the indemnifying Party concerning the existence of an indemnifiable claim; (ii) promptly provide the indemnifying Party with all information and assistance reasonably requested; and (iii) cooperate fully with the indemnifying Party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a Party’s right to indemnification. It shall affect the indemnifying Party’s obligations under this Agreement only to the extent that the indemnifying Party’s rights are materially prejudiced by such failure or delay. The indemnifying Party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the Party seeking indemnification to admit liability or make any financial payment shall require such Party’s prior written consent not to be unreasonably withheld or delayed.
10. LIMITATION OF LIABILITY
10.1 Exclusion Of Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS, OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 Limitation Of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ABUSIX’S AGGREGATE LIABILITY TO CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS BEFORE THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF ABUSIX WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. ABUSIX HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMERS WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED IN THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION 10.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES ARISING FROM (1) THE INDEMNIFICATION OBLIGATIONS HEREIN OR (2) CUSTOMER’S NON-PAYMENT OF UNDISPUTED FEES DUE AND PAYABLE.
10.3 Limitation of Liability in the Aggregate. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CUSTOMER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
10.4 Jurisdiction-specific Exclusions. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s fraud, willful injury to the person or property of another, or violation of law, which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, ABUSIX’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
10.5 Enforceable Against Abusix. Any claims or damages that Customer may have against Abusix shall only be enforceable against Abusix, Inc., not any other entity, nor any officers, directors, or Representatives of Abusix or any other entity.
10.6 The provisions of this Section 10 allocate the risk between the Parties under this Agreement, and the Parties have relied on these limitations in determining whether to enter into this Agreement.
11. USE OF THIRD PARTY SERVICES
The Services allow various third-party Services to be used in connection with the Services. Customer’s use of such Third Party Services and any exchange of Customer Data between Customer and the provider of such Third Party Service is solely between Customer and the Service provider. Abusix does not warrant or support any Third Party Service or other non-Abusix product or service, regardless of whether such Third Party Service is promoted or made available through the Services or is designated by Abusix as “certified” or “working with” the Services. Customer acknowledges that providers of such Third Party Services may have access to Customer Data in connection with the interoperation and support of such Third Party Service with the Services and that, as between Customer and Abusix, Customer is solely responsible for reviewing and complying with such Third Party Service provider’s terms of use, practices, and policies. To the extent Customer authorizes the access, transmission, or Processing of Customer Data through a Third Party Service, Abusix shall not be responsible for any disclosure, modification, deletion, or other Processing of such Customer Data by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
Application Programming Interfaces (“API”)
(a) Customer can enable certain APIs so that the Services work in conjunction with certain third-party services, systems, and/or applications. Where necessary for applicable Services, the process to gain access to the APIs will be made available to Customer upon request. To avoid doubt, Customer’s access and use of any third-party APIs shall be governed solely by the terms and conditions of such third-party APIs. If a third party modifies its APIs so that they no longer interoperate with the Services or imposes requirements on interoperability that are unreasonable for Abusix, Abusix may cease or suspend its provision of interoperability between the Services and the affected third-party API without liability.
(b) Where Abusix supplies Customer with an Abusix API, all access keys, authentication procedures, and data to which Customer gains access or which is provided to Customer in connection with Customer’s use of the API, excluding Customer Data, is the Confidential Information of Abusix. Abusix may revoke access to any API at any time without notice to Customer if Abusix, in its reasonable discretion, believes necessary or appropriate.
(c) Customer is responsible for (i) ensuring that the information provided to Abusix to enable any API is and remains accurate and up to date and (ii) ensuring it has valid licenses for, and access to, all applicable third-party APIs necessary to access and derive benefit from the applicable Services.
(d) Customer acknowledges and agrees that Abusix is not responsible for (i) any third-party APIs (and no representations, warranties, or commitments are made regarding the same); and (ii) the security of Customer Data until such time that Customer Data enters the Abusix environment (and all such transfers are conducted on Customer’s own volition and risk).
12. General
12.1 Governing Law; Venue. This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and Abusix, Customer, and End User consent to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
12.2 Arbitration. Any dispute arising out of or in any way relating to this Agreement shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and according to the then-existing arbitration rules at JAMS. If the Parties cannot agree upon selecting an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The arbitration will be in San Francisco, California unless otherwise agreed upon by the Parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the Parties shall be deemed to have not agreed to arbitrate disputes. Customer may opt-out and not be bound by the arbitration and class action waiver provisions by sending written notice to Abusix within thirty (30) days of the Effective Date of this Agreement between Customer and Abusix. Written notice should be sent to the address shown below. Abusix will not be bound to arbitrate if Customer opts out of arbitration. Notwithstanding the foregoing, either Party shall be entitled to seek injunctive relief as outlined in the Confidentiality section above to stop unauthorized use of any Confidential Information or the Services or infringement of a Party’s intellectual property rights. Disputes, claims, or controversies concerning either Party’s intellectual property rights or claims of piracy or unauthorized use of the Services shall not be subject to arbitration. The Parties further agree that the prevailing Party, in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
12.3 Legal Notices. Abusix may provide general notices related to the Services that apply to Customer via email or notification within the Services. Such notices shall satisfy any legal requirement that notice be made in writing. Legal notices (including all from Customer) must be sent via email, first class mail, airmail, or overnight courier to Customer’s address provided via an Order Form. Legal notices will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed if transmitted by email; the day after it is sent if sent for next-day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Legal notices to Abusix shall be sent to:
Abusix, Inc.
Attn: Legal Department
One Boston Place, Suite 2600
Boston, MA 02108
If Email: [email protected]
General support-related inquiries to Abusix can be sent to [email protected].
12.4 Publicity; Use of Customer’s Marks. Abusix shall have the right to use Customer’s name and logo factually for marketing or promotional purposes on Abusix’s website and in other communication with existing or potential Abusix customers. The Parties shall work together in good faith to issue at least one mutually agreed-upon press release and/or case study upon Customer’s launch of the Services. Customer agrees to reasonably cooperate with Abusix to serve as a reference upon request.
12.5 Severability; No Waiver. If any provision of this Agreement is found invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall remain in full force and effect and enforceable between the Parties. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
12.6 Assignment. Customer may not assign or transfer this Agreement, in whole or in part, without Abusix’s prior written consent. Abusix may freely assign or transfer this Agreement, in whole or in part, by law or otherwise. Any attempted assignment or transfer violating this Section will be null and void. Subject to the foregoing restrictions, this Agreement will benefit the successors and permitted assigns of the parties.
12.7 Force Majeure. Neither Party shall be liable for delayed or inadequate performance of its obligations hereunder (except for the payment of money) to the extent caused by a Force Majeure Event. The Party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the Party experiencing such Force Majeure Event shall promptly notify the other Party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event.
12.8 Relationship of the Parties. The Parties shall be independent contractors concerning all Services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Customer has no authority to bind Abusix in any respect whatsoever. There are no third-party beneficiaries to this Agreement. Without limiting this section, Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement. The Parties further acknowledge that no Reseller is entitled to modify this Agreement, including Support, or otherwise make promises, representations, or warranties on behalf of Abusix.
12.9 Use by Affiliates and Extension of Rights. Customer may extend its rights, benefits, and protections provided herein to its Affiliates provided that Customer remains responsible for and liable for such Affiliate’s use of the Services and compliance with this Agreement.
12.10 Trial Subscriptions. Abusix may, at its option, offer new customers a limited free trial of the Services, subject to this Agreement. Notwithstanding anything to the contrary herein, Abusix shall have the right to terminate a Customer free trial at any time and for any reason.
12.11 Beta Access. Select Customers may be invited to participate in the review and testing of pre-release versions of new tools and enhancements within the Services, which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or a similar term. Customer acknowledges and understands that its participation in such beta offerings is (i) not required and is at Customer’s own risk; (ii) made available on an “as is” basis without warranties of any kind; and (iii) may be subject to additional terms related to its use. Abusix will have no liability arising from or concerning Customer’s use of such beta offerings.
12.12 Export Compliance. Customer and End User may not remove or export from the United States or allow the export or re-export of the Services, Software, or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer shall not permit any End User to access or use the Services in a U.S. embargoed country or region or in violation of any U.S. export law or regulation.
12.13 English Version Controls. Non-English translations of this Agreement may be provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controlled.
12.14 Entire Agreement. This Agreement, including all attachments, policies, exhibits, addendums, and any Order Form(s) related hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings, commitments, proposals, negotiations, and agreements, whether written or oral, concerning its subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the Order Form shall prevail. No terms or conditions stated in any Customer or Reseller purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void. The Parties understand that the provisions of this Agreement apply in the context of a global agreement intended for use in multiple jurisdictions.
12.15 Updating this Agreement. Abusix may modify and update the terms of this Agreement at any time upon appropriate notification to you. In addition, Abusix will post the most current version of this Agreement on Abusix’s website or the Service. If you or your Authorized Users continue to use the Services after we have notified you and posted the modified Agreement on Abusix’ website, you are indicating that you agree to be bound by the modified Agreement.
12.16 Transition from Reseller. If Customer wishes to transition from its then-current Reseller to a new, authorized Abusix Reseller, Customer will notify Abusix in writing. In that event, Customer agrees that the terms and conditions of this Agreement will continue to apply to Customer’s use of the Services (in addition to the pricing and other terms provided by Customer’s new Reseller). If Abusix terminates its relationship with Customer, then-current Reseller, Abusix will notify Customer and will provide a description of the plan to maintain the Services through the end of the applicable Subscription Term. At the end of such term, Customer may continue to receive the Services through Abusix or an authorized Reseller of its choice
13. DEFINITIONS
13.1 “Account” means a Customer Account or End User Account.
13.2 “Affiliate” means, concerning a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such Party, whether through the ownership of voting securities, by contract or otherwise.
13.3 “Agreement” means this Software-as-a-Service (SaaS) Agreement, consisting of the terms and conditions stated herein as well as all Order Forms, policies, addenda, exhibits, attachments, and amendments (if any).
13.4 “Confidential Information” means all information provided or made available by the Disclosing Party to the Receiving Party in connection with this Agreement that is either identified as, or should reasonably be understood by the Receiving Party to be, proprietary or confidential, including, but it not limited to, non-public information regarding features, functionality and performance of the Services, the terms of this Agreement, Customer Data, business plans, product plans, roadmaps, strategies, forecasts, projects and analyses, the results of any audit related to the Services (including but not limited to security audits), financial information and fee structures, business processes, methods and models, and technical Documentation, but does not include any information that the Receiving Party can demonstrate (i) was generally available to the public at the time of disclosure; (ii) was in its possession or known by it without restriction prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without the use of any Confidential Information of the Disclosing Party.
13.5 “Customer” means the individual or entity represented by the individual(s) entering into this Agreement with Abusix and includes Customer’s Affiliates.
13.6 “Customer Account” means the account or instance within the Services created on behalf of Customer by a representative of Customer that has administrative rights on Customer Account to take certain actions and make certain changes on behalf of Customer.
13.7 “Customer Data” means information submitted to or created in the Services by Customer or End User in connection with Customer or End User’s use of the Services. Customer Data does not include Usage Data, information about Abusix’s business contacts within Customer’s organization, information about Account holders processed to administer or operate such accounts, or Abusix’s marketing activities.
13.8 “Customer Parties” means Customer and its Affiliates, subsidiaries, and officers.
13.9 “Customer Settings” means the portion of the Services that Customer can access by creating a Customer Account and where Customer can perform administrative functions, such as adding and deleting users.
13.10 “Data Processing Addendum” means Abusix’s data processing addendum, available at https://trust.abusix.com and incorporated by reference into and forms part of this Agreement.
13.11 “Disclosing Party” means a Party to this Agreement which may make Confidential Information available to the other Party.
13.12 “Documentation” means the then-current, generally available documentation detailing the functionalities of the Services or describing the Subscription Plans made available by Abusix in the Abusix help center at https://abusix.com/docs/ which is updated from time to time, or in any statement of work for Professional Services; provided, however, that Documentation shall specifically exclude any information provided through a knowledge base created by Abusix on a Customer’s behalf.
13.13 “End User” means (a) an individual accessing the Services through permissions granted in a Customer Account (b) has not been excluded, banned or blocked from using the Service in the past.
13.14 “End User Account” means the account or instance within the Services created by an End User who completes the registration process by providing their full legal name, a valid email address, and any other information requested.
13.15 “Tools” means any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including modems, hardware, servers, software, operating systems, networking, web servers, and the like.
13.16 “Fees” means dollar amounts due and payable to Abusix by Customer as compensation for Customer’s use of the Services, including Subscription Charges and fees for Professional Services.
13.17 “Force Majeure Event” means a condition that is beyond a Party’s reasonable control, including but not limited to natural disasters, civil disturbances, epidemics, pandemics, quarantines, acts of terrorism or war, labor conditions, governmental actions, interruptions or failure of the internet or any utility service, failures in third party hosting services, and denial of service attacks.
13.18 “Abusix” means Abusix, Inc.
13.19 “Abusix Parties” means Abusix and its Affiliates, subsidiaries, officers, employees and agents.
13.20 “including” means including, without limitation.
13.21 “Order Form” means the written instrument signed by both Parties to this Agreement which specifies the Fees associated with Customer’s use of the Services as well the Subscription Term. Notwithstanding the foregoing, no Order Form shall add to or amend this Agreement, unless signed by Abusix and Customer and no Reseller or Customer standard terms included in a Order Form shall apply to the provision of the Services.
13.22 “Parties” means Customer, Abusix, and Reseller (where applicable).
13.23 “Privacy Notice” means Abusix’s policy found at https://abusix.com/privacy-policy/.
13.24 “Process” and inflections thereof refer to any operation or set of operations which is performed on Customer Data or on sets of Customer Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, and destruction
13.25 “Professional Services” means consulting or professional services (including any training, success, and implementation services) provided by Abusix. Professional Services may also be referred to as consulting services in the Documentation or statement of work.
13.26 “Receiving Party” means a Party to this Agreement which may receive Confidential Information from the other Party.
13.27 “Representatives” means the employees, Affiliates, consultants, contractors, subcontractors, agents, or advisors of a Party.
13.28 “Services” means the software-as-a-service application and technical support services owned or operated by Abusix, including mobile applications, Software, websites or other properties. “Services” includes all paid and free products and services and excludes Third Party services.
13.29 “Subscription Charges” means dollar amounts due and payable to Abusix by Customer under this Agreement as compensation for Customer’s use of the Services.
13.30 “Subscription Plan” means the packaged Service plan(s) and the functionality and Services associated therewith (as detailed on Abusix’s website and in Documentation applicable to the Service).
13.31 “Subscription Term” means the time period during which Abusix shall agree to provide and Customer shall agree to purchase the Services as specified in an Order Form or as agreed to by Customer upon signing up through Abusix’s websites or Customer Settings.
13.32 “Taxes” means all taxes, levies, duties or similar assessments of any nature, including but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction.
13.33 “Third Party Services” refers to the various third-party applications and services that Abusix makes available for use in connection with the Services.
13.34 “Usage Data” has the meaning given in Section 4.2
13.35 “Intellectual Property Rights” means any intellectual property in any jurisdiction throughout the world, including any (i) trademarks, service marks, Internet domain names, logos, trade dress, trade names, and any other indicia of source, and all goodwill associated therewith and symbolized thereby; (ii) patents, patent applications and patent disclosures, and inventions and discoveries (whether patentable or unpatentable); (iii) processes, technologies, trade secrets, and know-how; (iv) copyrights and copyrightable works, moral rights, and mask works; (v) software and software systems (including data, source code, object code, databases and related items such as documentation); and (vi) registrations and applications for any of the foregoing.