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These Terms of Service (“Terms”) are between you (the “Customer”, “you”, or “your”) and Humanly Inc. (the “Company”) and constitutes a legal agreement that governs your use of the Service. If you do not agree to any of the following terms, please do not use the Service. If you have a written agreement with us governing your use of the Service, the terms in that agreement will apply to your use of the Service and supersede the terms in these Terms solely with respect to any provisions in direct conflict. Company and Customer are each referred to herein as a “Party” and collectively the “Parties”.
BY ACCEPTING THIS AGREEMENT BY USE OR ACCESS OF THE SERVICE, OR BY OTHERWISE CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING OUR PRIVACY POLICY, WHICH IS INCORPORATED HEREIN BY REFERENCE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICE.
THESE TERMS MAY BE MODIFIED OR AMENDED BY THE COMPANY IN ITS SOLE AND ABSOLUTE DISCRETION AT ANY TIME. Changes will be effective immediately, provided the Company will make good faith efforts to provide a minimum of thirty (30) days prior notice prior to any material change. Continued use of the Service thereafter shall be deemed consent to and acceptance of these Terms as revised. If you do not agree to any change(s) your sole remedy is to terminate this Agreement and cease using and accessing the Service.
1. Definitions. Capitalized terms used in this Agreement shall have the meaning set forth in this Section 1 or as otherwise defined in this Agreement.
1.1 “Agreement” means collectively, these Terms, together with any Order(s) or other agreements referencing these Terms between Customer and the Company.
1.2 “Aggregated Statistics” means data and information related to or arising from Customer’s use of the Service that is used by the Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Service.
1.3 “Authorized User” means Customer and its employees, consultants, contractors, and agents who are authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this Agreement.
1.4 “Customer Content” means, other than Aggregated Statistics, Personal Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Service.
1.5 “Confidential Information” means, with respect to the Company, all information which the Company protects against unrestricted disclosure to others, including but not limited to: (a) the Service and Documentation, including without limitation the following information regarding the Service (i) computer software (object and source codes), programming techniques and programming concepts, methods of processing, system designs embodied in the Service, (ii) benchmark results, manuals, program listings, data structures, flow charts, logic diagrams, functional specifications, file formats, and (iii) discoveries, inventions, concepts, designs, flow charts, documentation, product specifications, application program interface specifications, techniques and processes relating to the Service; (b) the research and development or investigations of the Company; (c) product offerings, content partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schematics, trade secrets, know-how, improvements, marketing plans, forecasts and strategies; and (d) any information about or concerning any third party (which information was provided to the Company subject to an applicable confidentiality obligation to such third party). With respect to Customer, “Confidential Information” means all information which Customer protects against unrestricted disclosure to others and which (1) if in tangible form, Customer clearly identifies as confidential or proprietary at the time of disclosure, or based on the circumstances around its disclosure and the sensitive nature of the content would reasonably expect such information to be confidential in nature; and (2) if in intangible form (including disclosure made orally or visually), Customer identifies as confidential at the time of disclosure, summarizes the Confidential Information in writing, and delivers such summary within thirty (30) calendar days of any such disclosure.
1.6 “Deliverable” means any content, technology or other subject matter of any nature whatsoever that is conceived, created, developed or otherwise provided or made available by the Company in providing Professional Services to Customer, including without limitation any Documentation, training materials, works of authorship, know-how, or any invention, device, process, method, development, design, specifications, technique, apparatus, reports, schematic or technical information (whether patentable or not), documentation, software or enhancements, improvements, alterations, interfaces, work flows, best practices, and customized feature of the Service developed for Customer or at Customer’s request or suggestion and any other deliverable of any kind provided by the Company to Customer pursuant to this Agreement.
1.7 “Documentation” means any all user manuals, product specifications, technical manuals, and any other materials related to the use, operation, and maintenance of the Services made available to Customer by the Company for use with the Service, as well as any updates thereto, but does not include advertising or promotional materials,.
1.8 “Intellectual Property” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any copyrights, trademarks, trade name, service marks, logo, corporate name trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure, or any other proprietary rights or other intellectual property rights and all similar or equivalent rights or forms of protection, in any part of the world (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.
1.9 “Order” means any order form executed by the Company and Customer for Professional Services and/or the Service.
1.10 “Person” means any natural person or business entity or any government or political subdivision, or any agency, department or instrumentality thereof.
1.11 “Personal Data” means any data relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. Customer’s business contact information is not by itself Personal Data.
1.12 The Service may include both paid and free features, as well as artificial intelligence or machine learning capabilities, as determined by the Company in its sole discretion. Features labeled as “Beta,” “Preview,” “Early Access,” or similar designations are provided for evaluation purposes only and may be subject to additional terms. “Service” means the Software as a Service platform AnyDB available at https://www.anydb.com/, including and any other Company website, software, service, mobile application, or offering offered by the Company that incorporates these terms.
1.13 “Third Party Materials” means any third-party products, software, and services provided with or incorporated into the Service, including without limitation, our payment processors.
2. Service Use and Access.
2.1 Access and Subscription Term. Subject to and conditioned on Customer’s payment of Subscription Fees (if applicable) and compliance with all other terms and conditions of this Agreement, the Company hereby grants Customer a non-exclusive, non-transferable right to access and use the Service during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Access to specific features, functionality, or service levels may require payment of additional fees or execution of separate Orders. The Company reserves the right to change the features included in any service tier or subscription level at any time. Customer acknowledges that certain features may be offered on a trial or experimental basis, and such features may be discontinued or modified at any time without liability to the Company. Such use is limited to Customer’s internal use.
2.2 API Use. Provided that the Company provides an API and Customer has been authorized by the Company in writing to build custom application code authorized to be developed using the Company’s APIs in accordance with the documentation accompanying such API (“Custom Code”) (which authorization may be withdrawn by the Company at any time upon written notice to Customer), Customer’s use the API to create Custom Code shall be subject to the terms and conditions of this Agreement, except as mutually agreed otherwise in writing.
2.3 Documentation. Subject to the terms and conditions contained in this Agreement, the Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use any supporting Documentation, during the Term solely for the purposes in connection with its use of the Service and in accordance with these Terms.
2.4 Use Restrictions.
(a) Customer shall not, and shall not permit any other Person to, access or use the Service for any purposes beyond the scope of the access granted in this Agreement and, in the case of Third Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as expressly permitted in this Agreement: (i) copy, modify, or create derivative works of the Service or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service or Documentation other than to Authorized Users; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Service, in whole or in part; (iv) remove any proprietary notices from the Service or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Company customer), or that violates any applicable law; (vi) allow any Person other than Authorized Users to access or use the Service; (vii) use or access the Service or Documentation for purposes of creating or marketing a similar or competitive solution with the Service, whether directly or indirectly; (viii) damage, disable, overburden, or impair the Service or any network connected to the Service; (ix) use any automated process or service (such as bots, spiders, or periodic caching of information) to access or use the Service; (x) use the Service beyond the features allocation and amounts provided or in violation of Company’s fair use policy; (xi) input, upload, transmit, distribute, post, or share through the Service any information or materials that are unlawful, injurious, defamatory, harassing, libelous, threatening, obscene, discriminatory, or that promote terrorism or violate human rights; (xii) contain, transmit, or activate any harmful or malicious code; or (xiii) use the Service in any way that violates privacy or publicity rights of any person or entity. Customer acknowledges that the Service may contain self-reporting technology by which the Company may receive information deemed relevant by the Company to providing and improving the Service, monitoring compliance, and any other purposes as determined by the Company in its reasonable discretion. Customer shall not tamper with or attempt to disable such self-reporting technology. Company reserves the right to block or prevent delivery of any type of file, email or other communication to or from the Services, and to deactivate or require changes to any Customer user IDs, custom URLs, links, or domains obtained through the Service. Customer agrees to promptly notify Company of any unauthorized or unacceptable use of the Service and cooperate with Company in terminating such use.
(b) Customer shall not, and shall not permit any other Person to, access or use the Service or any Third Party Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage.
2.5 The Company’s Rights. Customer acknowledges and agrees that, subject to the license grants contained in this Agreement, the Company and its licensors retain all right, title and interest in and to the Company’s Intellectual Property which were possessed, discovered or acquired by the Company prior to the execution of this Agreement (including, without limitation, the Service and Documentation), and any improvements, modifications, advancements or derivatives thereof or thereto (including all Deliverables), whether or not made in connection with any services hereunder and regardless of which Party made or contributed to such improvement, modification, advancement or derivative. There are no implied licenses under this Agreement; any rights not expressly granted to Customer hereunder are reserved by the Company, including the right to grant third-parties non-exclusive licenses in the Service and Deliverables. Customer shall not contest the Company’s ownership of the Service or Deliverables, nor shall Customer challenge the validity of the Company’s rights to the Service or Deliverables.
2.6 Non-Exclusivity. The rights granted under this Agreement are non-exclusive. Nothing in this Agreement shall be construed to prevent or restrict the Company in any manner from using or granting licenses to others for the use of the Service or Deliverables.
2.7 Suspension. Notwithstanding anything to the contrary in this Agreement, the Company may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Service if: (i) the Company reasonably determines, in its sole discretion, that (A) there is a threat or attack on any of the its Intellectual Property; (B) Customer’s or any Authorized User’s use of the Company Intellectual Property disrupts or poses a security risk to the Company Intellectual Property or to any other Person; (C) Customer, or any Authorized User, is using the Company Intellectual Property for fraudulent or illegal activities or otherwise in breach of these Terms; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) the Company’s provision of the Service to Customer or any Authorized User is prohibited by applicable law; or (ii) any vendor of the Company has suspended or terminated the Company’s access to or use of any third-party services or products required to enable Customer to access the Service (any such suspension a “Service Suspension”). The Company shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Service following any Service Suspension. The Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. The Company reserves the right to include as part of the Service access restriction devices and methods designed to prohibit unauthorized access to its Intellectual Property rights in the Service. Such methods may include the ability for the Company to access and pull data from the Service as reasonably necessary to determine Customer’s compliance with this Agreement.
2.8 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, the Company may monitor Customer’s use of the Service and collect and compile Aggregated Statistics. As between the Company and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property rights therein, belong to and are retained solely by the Company. Customer acknowledges that the Company may compile Aggregated Statistics based on Customer Content input into the Service. Customer agrees that the Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer, Authorized Users or either of their Confidential Information, including without limitation, any Personal Data.
2.9 Changes to Service. The Company reserves the right to: (i) withdraw or amend the Service, and any other service or material it provides on or through the Service, in its sole discretion without notice; and (ii) to discontinue offering the Service in its sole discretion without any liability. The Company will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. The Company may offer certain features or services free of charge (“Free Services”). Free Services are provided “as is” without any warranties, and the Company has no obligation to provide any technical support, upgrades, or continued availability for Free Services. The Company may modify, suspend or terminate Free Services at any time without notice or liability. Any artificial intelligence or machine learning features (“AI Features”) provided through the Service are experimental in nature and may produce inconsistent or unexpected results. Customer acknowledges that AI Features may be added, modified or removed at any time, and their outputs should not be relied upon for any critical business decisions without independent verification. The Company may develop and introduce new features, functionalities, or service offerings during the Term. Unless explicitly stated otherwise in an Order, Customer’s access to and use of such new features shall be subject to additional fees and terms as determined by the Company. From time to time, the Company may restrict access to some parts of the Service, or the entire Service, to users.
3. Professional Services.
3.1 Implementation and Professional Services. Customer may be required to purchase implementation services with the initial purchase of any Service, as set forth on an Order (“Implementation Service”). During the Term of this Agreement, the Company agrees to perform the certain professional services described in an Order, or separate Statement of Work, mutually agreed upon and executed in writing by both Parties (collectively with Implementation Services, the “Professional Services”). Each Order or Statement of Work shall be appended to and become part of this Agreement. The Company will rely on the specific instruction, information and/or other software or product provided by Customer. The Parties will work diligently to reach a mutually acceptable performance schedule in accordance with Customer’s schedule, business needs and equipment availability. The Company is not responsible for default or delays caused by Customer’s failure to provide accurate instructions, information, access to facilities or suitable product or application environment. Customer is responsible for providing all equipment, utilities and telecommunications facilities necessary for the operation of the Service.
3.2 Intellectual Property Rights. Except as may expressly indicated on an Order or Statement of Work mutually executed between the Parties and notwithstanding anything herein to the contrary, the Company shall retain all right, title and interest in and to any Deliverables, including all Intellectual Property rights therein. The Company hereby grants Customer a non-exclusive, royalty-free, perpetual, without the right of sublicense, license to use Deliverables in the course of Customer’s internal business operations.
3.3 Access to Customer Facilities. The Company’s obligations under this Section 3 are conditioned on Customer providing the Company with the necessary access to Customer’s facilities and computer systems (including remote access). The Company will comply with and cause its personnel to comply with Customer’s reasonable security regulations, working hours and policies while working on Customer’s premises.
3.4 Subcontracting. The Company may delegate any of its obligations under these Terms to third-party subcontractors, but will remain primarily responsible for the performance of all of its obligations set forth herein.
4. Customer Responsibilities.
4.1 General. Customer is responsible and liable for all uses of the Service and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Service and shall cause Authorized Users to comply with such provisions. Customer acknowledges that each Authorized User account is personal to such Authorized User and agrees not to provide any other person with access to the Service or portions of it using any Authorized User’s username, password, or other security information. The Company will treat all actions through an Authorized User’s account as if conducted by such Authorized User, whether or not such user had knowledge of the unauthorized use of his or her account. Customer agrees to notify the Company immediately of any unauthorized access to or use of any username or password or any other breach of security.
4.2 Customer Content and Responsibility.
(a) The Customer is solely responsible for: (i) all Customer Content in Customer’s account(s) and that Customer shares through the Services, (ii) ensuring all data uploaded, stored, or processed through the Service complies with all applicable laws, regulations, and industry standards, including but not limited to data protection, privacy, and confidentiality laws, and (iii) obtaining and maintaining all necessary rights, permissions, licenses and consents to use, transmit, and share such Customer Content. By storing, using or transmitting Customer Content, Customer confirms that it will not violate any law or these Terms.
(b) Customer further acknowledges and agrees that the Company does not control or monitor the content or nature of Customer Content uploaded to the Service. Customer represents and warrants that it: (i) has obtained all necessary consents, approvals, and licenses; (ii) has provided all required notices and disclosures; and (iii) has taken all legally required actions to lawfully provide any Customer Content to the Company through the Service.
(c) Customer acknowledges that sharing Customer Content may allow other authorized users to access and use such Customer Content without further restriction or compensation to Customer. Customer grants Company (and its agents or service providers) the right to transmit, process, use and disclose Customer Content solely: (i) as necessary to provide the Services, (ii) as otherwise permitted by these Terms, (iii) as required by law, regulation or order, and/or (iv) to respond to an emergency.
(d) In adherence to data minimization principles, the Customer shall ensure that any Customer Content uploaded does not exceed what is necessary for the intended purpose of the Service. The Company reserves the right to review, filter, and limit the data uploaded to ensure compliance with these principles.
(e) Restricted Content without Processing Agreement.
(i) Minor Personal Data. Unless the Parties have entered into a processing agreement specifically addressing any necessary compliance obligations for such data types (“Processing Agreement”), Customer shall not provide, submit, transmit through the Service or otherwise make available to the Company any Personal Data of children under the age of 18. If the Customer discovers that it has unintentionally provided Personal Data of a child under 18 without parental consent and a separate processing agreement with the Company, it must immediately notify the Company. The Service is not directed to or intended for use by minors.
(ii) PCI Data. Unless the Parties have entered into a Processing Agreement, Customer shall not upload, store, or transmit any payment card data or other financial account information that is subject to the Payment Card Industry Data Security Standard (PCI DSS) or similar financial data security requirements or regulations.
(iii) National Security Information. Unless the Parties have entered into a Processing Agreement, Customer shall not upload or otherwise provide Customer Content that is subject to national security regulations or any other laws that restrict or prohibit the sharing or processing of such data without proper authorization or compliance. This includes, but is not limited to, data subject to export control laws, classified information, or any data that could compromise national security or defense.
(iv) Highly Sensitive Information. Unless the Parties have entered into a Processing Agreement, Customer shall not upload, store, or transmit any trade secrets, sensitive personal data, or any other data type that would subject the Company to a burdensome regulatory compliance framework, including but not limited to: (a) protected health information subject to HIPAA or similar healthcare privacy laws, (b) biometric data, (c) genetic data, (d) government-issued identification numbers, (e) financial account information, (f) precise geolocation data, or (g) any other special categories of personal data as defined under applicable data protection.
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify the Company of any such actual or threatened activity.
4.4 Third Party Materials. The Company may from time to time make Third Party Materials available to Customer, which Third Party Materials may be embedded within the Service or separate from the Service, including without limitation, embedded payment processing services, such as credit card, debit card, ACH, and other payment processing services, as may be offed from time-to-time. For purposes of this Agreement, such Third Party Materials are subject to their own terms and conditions and the applicable flow through provisions. Customer hereby agree to comply with any such Third Party Materials end user license agreement or other terms provided or made available by the Company, which may be amended from time to time.
5. Financial Terms.
5.1 Fees. The Company offers various subscription tiers for the Service, including a free tier (“Free Tier”) and paid tiers (collectively, “Paid Tiers”). Each tier’s features, storage limits, minimum user requirements, and pricing are set forth at [Company URL] and’s in the Customer account (“Subscription Fees”). Customer may elect to pay Subscription Fees on either a monthly or annual basis. Annual subscriptions are subject to a discount as specified in the Customer’s account. Fees for the selected tier will be assessed and billed according to Customer’s chosen payment frequency (monthly or annually). Any fees for Professional Services or other add-ons will be set forth in an Order or applicable Statement of Work and may be subject to different or additional terms and conditions as stated therein. For monthly subscriptions, Subscription Fees are payable in advance on the subscription start date and on the same day of each month thereafter until termination. For annual subscriptions, Subscription Fees are payable in advance on the subscription start date and on each anniversary thereof until termination. All payments must be made on or before the applicable due date. The Company may modify the Subscription Fees for any tier upon ninety (90) days’ prior written notice to Customer (“Fee Modification Notice”), provided that such modifications will not take effect until the expiration of Customer’s then-current subscription term. Fee modifications will not occur more than once per calendar year. The Fee Modification Notice will include the updated fee schedule and effective date. If Customer does not accept the modified fees, Customer may either (a) downgrade to a different tier, including the Free Tier if eligible, or (b) terminate this Agreement by providing written notice to the Company (“Rejection Notice”) prior to the fee modification effective date. Upon the Company’s receipt of a Rejection Notice, this Agreement shall terminate without penalty at the end of Customer’s current subscription term, provided Customer has no outstanding amounts due and is not in breach of this Agreement. Customer’s continued use of the Service after the fee modification effective date shall constitute acceptance of the modified fees.
5.2 Default Fees. All amounts payable to Company under this Agreement shall be paid by Customer in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason. If Customer fails to make any payment when due, without limiting the Company’s other rights and remedies, and such failure continues for five (5) days or more, the Company may suspend and/or terminate Customer’s and its Authorized Users’ access to any portion or all of the Service until such amounts are paid in full. Fees and expenses not paid when due will accrue interest from the date due until paid at an annual rate equal to 1.5% per month, or the highest rate permissible under applicable law, whichever is less. The Company will, in addition to any other remedy available to it, be entitled to its cost of collections, including attorneys’ fees, if an amount due remains outstanding for more than 60 days.
5.3 Expenses. Customer will reimburse the Company monthly in arrears for its reasonable documented travel, telephone and other actual out-of-pocket expenses that Customer has pre-approved in writing relating to Professional Services. The Company will maintain complete and accurate records related to such expenses and, upon Customer’s request, will submit copies of such records.
5.4 Taxes. All Subscription Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on the Company’s income.
6. Confidentiality.
6.1 Use Confidential Information. Confidential Information of the disclosing Party shall not be reproduced by the receiving Party in any form except as required to accomplish the intent of this Agreement. Any reproduction of any Confidential Information of the other shall remain the property of the disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other, each Party: (i) shall take commercially reasonable steps to keep all Confidential Information strictly confidential (and in no case less than reasonable); and (ii) shall not disclose any Confidential Information of the other to any Person other than its bona fide individuals whose access is necessary to enable it to exercise its rights or otherwise perform its obligations hereunder. Confidential Information of either Party disclosed prior to execution of this Agreement shall be subject to the protections afforded hereunder. Each Party shall destroy or return the Confidential Information of the other Party upon request.
6.2 Exceptions. The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (i) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (ii) has become generally available to the public without breach of this Agreement by the receiving Party; (iii) at the time of disclosure, was known to the receiving Party free of restriction; (iv) the receiving Party develops independently without any use of or reference to the Confidential Information of the disclosing Party; or (v) is required to be disclosed to governmental agencies having regulatory authority or other authority of the receiving Party, or is required by a court order to be disclosed or to provide such Confidential Information, provided that receiving Party shall use its best efforts, to the extent permitted by law to do so, to promptly give disclosing Party written prior notice to any disclosure under this clause (v) so that disclosing Party can seek a protective order.
6.3 Personal Data and AI Training. Customer acknowledges that the Service may utilize artificial intelligence and machine learning technologies, and Customer Content may be processed by such technologies in accordance with this Agreement. The Company will not use Personal Data for AI model training without explicit consent. Future AI features may be introduced and will be subject to additional terms and conditions as provided by the Company.
6.4 Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. THE COMPANY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER CONTENT.
7. Representations and Warranties.
7.1 Mutual Warranties. Each Party represents to the other Party that such Party has the power and authority to enter into this Agreement and that such Party is not a party to any restrictions, agreements or understandings whatsoever which would prevent or make unlawful such Party’s acceptance of the terms set forth in this Agreement or such Party’s performance hereunder. Each Party further represents that such Party’s acceptance of the terms of this Agreement and the performance of such Party’s obligations hereunder do not and will not (with the passage of time) conflict with or constitute a breach or default of any contract, agreement or understanding, oral or written, to which such Party is a party or by which such Party is bound.
7.2 The Company Warranties. Professional Services performed by the Company will (i) be performed in a timely, competent, professional and workmanlike manner, (ii) substantially conform to the written specifications under the relevant Order/Statement of Work for 30 days from completion, or for such other warranty period as may be indicated in any accepted Order/Statement of Work, and (iii) be in compliance with all laws, rules and regulations applicable to the Company’s performance under this Agreement.
7.3 Disclaimer. THE SERVICE, INCLUDING ANY FREE, TRIAL, BETA, OR PREVIEW FEATURES, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND BY THE COMPANY, EITHER EXPRESS OR IMPLIED. ANY FREE, TRIAL, BETA, OR PREVIEW FEATURES MAY BE MODIFIED, SUSPENDED, OR DISCONTINUED AT ANY TIME WITHOUT NOTICE OR LIABILITY. EXCEPT FOR THE EXPRESS WARRANTIES MADE BY THE COMPANY IN THIS SECTION 7, THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY WARRANTY OF ANY KIND (STATUTORY, EXPRESS OR IMPLIED), INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, RESULTS OR EFFORTS. THERE IS NO WARRANTY THAT ANY INFORMATION, THE COMPANY’S EFFORTS, THE SERVICE, PROFESSIONAL SERVICE OR THE DOCUMENTATION WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES. THE COMPANY DOES NOT WARRANT THAT THE SERVICE, DOCUMENTATION, OR PROFESSIONAL SERVICES IT PROVIDES ARE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION, WILL MEET ANY SPECIFIC NEED THAT CUSTOMER HAS OR THAT ALL DEFECTS WILL BE CORRECTED. TO THE EXTENT THAT A PARTY MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. CUSTOMER HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
7.4 Remedies. THE FOLLOWING ARE THE PARTIES’ RESPECTIVE SOLE AND EXCLUSIVE OBLIGATIONS, AND SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY ACTION FOR BREACH OF LIMITED WARRANTY UNDER THIS AGREEMENT: (I) CUSTOMER’S REMEDY FOR NON-CONFORMING PROFESSIONAL SERVICES DISCOVERED DURING THE WARRANTY PERIOD SHALL BE THE RE-PERFORMANCE OF ANY DEFICIENT PROFESSIONAL SERVICES AT THE COMPANY’S EXPENSE; OR (II) IF THE COMPANY IS UNABLE TO REMEDY ANY DEFICIENT PROFESSIONAL SERVICES WITHIN 30 DAYS OF NOTICE OR SUCH ADDITIONAL TIME AS MAY BE AGREED UPON BY THE PARTIES, THE COMPANY WILL, AT ITS OPTION, PROVIDE A CREDIT OR REFUND OF ANY FEES PAID FOR THE SPECIFIC NON-CONFORMING PROFESSIONAL SERVICES.
8. Liability Restrictions.
8.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY WILL NOT BE LIABLE CUSTOMER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION) ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Limitations of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AMOUNT OF DIRECT DAMAGES RECOVERABLE FROM THE COMPANY UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SERVICE AND/OR PROFESSIONAL SERVICE PURCHASED UNDER THIS AGREEMENT DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, WHICHEVER THE CASE MAY BE. NO DAMAGES SHALL BE RECOVERABLE FOR ANY FREE, TRIAL, BETA, OR PREVIEW FEATURES OF THE SERVICE.
8.3 Limitation of Actions. IN NO EVENT MAY ANY CAUSE OF ACTION RELATED TO THIS AGREEMENT BY BROUGHT BY THE CUSTOMER MORE THAN 1 YEAR AFTER THE OCCURRENCE OF THE EVENT GIVING RISE TO LIABILITY.
9. Indemnification. Customer shall indemnify, hold harmless, and, fully release the Company, its officers, directors, employees, affiliates and agents from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) resulting from any from any third-party claim, suit, action, or proceeding (collectively, “Third-Party Claim”) that the Customer Content, or any use of the Customer Content in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, privacy right, or any other rights throughout the world and any Third-Party Claims based on, arising from, or related to Customer’s or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Service in a manner not authorized by this Agreement; (iii) use of the Service in combination with data, software, hardware, equipment or technology not provided by the Company or authorized by the Company in writing; or (iv) modifications to the Service not made by the Company, provided that Customer may not settle any Third-Party Claim against the Company unless the Company consents to such settlement, and further provided that the Company will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
10. Term and Termination.
10.1 Term. The term of this Agreement commences on the Customer’s subscription date to the Service (“Initial Term”) and will automatically renew for successive periods equal in length to the Initial Term (each a “Renewal Term”) unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. . Any free, trial, beta, or preview features may have different term lengths as specified by the Company and may be terminated or modified at any time in the Company’s sole discretion. Access to beta or preview features does not guarantee future access to such features in their current form or at all once generally released.
10.2 Termination for Convenience. Either Party may terminate this Agreement for any reason or no reason effective upon written notice. Customer shall be responsible for all Subscription Fees accrued up until the effective date of termination, including, without limitation, any fees or expenses incurred by the Company for Professional Services. For annual subscriptions, if the Customer terminates the Agreement before the end of the subscription term, the Customer forfeits any remaining prepaid fees for the unused portion of the subscription term.
10.3 Effect of Termination. Upon the termination or expiration of this Agreement for any reason, the following terms shall apply: (i) all licenses granted under this Agreement will immediately terminate; (ii) Customer must pay to the Company all fees and expenses accrued prior to the effective date of termination, including any and all Subscription Fees due hereunder; and (iii) Sections 1, 2.4, 2.5, 2.6, 2.7, 2.8, 2.9, 2.10, 3.2, 4.2(a)-(d), and (f), 4.3, 4.4, 5.2, 5.3, 5.4, 6, 7.3, 7.4, 7.5, 8, 9, 10.3, 11, and 12 and any other provision of this Agreement that by its terms would survive shall survive the termination or expiration of this Agreement for any reason.
11. Intellectual Property Ownership; Feedback.
11.1 The Company Intellectual Property. Customer acknowledges that, as between Customer and the Company, the Company and its licensors own all right, title, and interest, including all intellectual property rights, in and to the Company Intellectual Property, including without limitation, Aggregated Statistics and Deliverables.
11.2 Customer Content. The Company acknowledges that, as between the Company and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Content. Customer hereby grants to the Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Content and perform all acts with respect to the Customer Content as may be necessary for the Company and its subcontractors, and subprocessors to provide the Service to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Content incorporated within the Aggregated Statistics. For the avoidance of doubt, in no event will the Company sell any Customer Content to third parties or use such Customer Content for any other purposes than as set forth in this Agreement.
11.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to the Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), the Company is free to use such Feedback without any other or limitation, restriction or payment between the Parties governing such Feedback.
12. General.
12.1 Governing Law; Venue and Jurisdiction. This Agreement shall be governed by the laws of the State of Texas without regard for its choice of law provisions. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located within the State of Texas, County of Williamson for the purposes of any proceedings arising out of this Agreement.
12.2 Severability. The provisions of this Agreement are independent of and severable from each other. No provision shall be affected or rendered unenforceable by virtue of the fact that any one of more of the other provisions hereof may be unenforceable in whole or in part, unless the absence of such unenforceable provisions materially alters the right or obligations of either Party hereto. The Parties will endeavor in good faith negotiations to replace any unenforceable provision with a valid provision.
12.3 Equitable Relief. The Parties acknowledge and agree that it is impossible to measure in money the damages that will accrue to a party hereto by reason of the other party’s breach of Sections 4 or 6, and that such a breach will cause irreparable harm to the non-breaching party. In addition to any other right or remedy available at law or in equity, the non-breaching party may apply to any court of competent jurisdiction for specific performance or injunctive relief to enforce or prevent any breach of Sections 4 or 6 without posting a bond or other security.
12.4 Attorneys’ Fees. The prevailing party in any action will be entitled to recover from the non-prevailing party its reasonable legal fees and expenses incurred in connection with the action.
12.5 Notices. All legal notices under this Agreement to the Company must be delivered in writing by courier, electronic facsimile, electronic mail, or by certified or registered mail (postage prepaid and return receipt requested) to Humanly, Inc. 14900 Avery Ranch Blvd, Ste C200 PMB 1029, Austin, TX 78717 USA Attention: Legal. Notice will be deemed effective upon the earlier of actual receipt by the intended recipient or upon delivery by courier; acknowledgement of receipt by electronic transmission or 5 days after deposit with the U.S. Postal Service. Customer agrees that the Company will provide notices and messages to it either within the Service or sent to the contact information in the Customer’s account. Customer is responsible for providing the Company with its most current e-mail address. If Customer has provided an invalid email, or such address is not capable of receiving notices, the Company’s dispatch of such email will nonetheless constitute effective notice.
12.6 Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the Parties. Neither Party (nor any agent or employee of that party) is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee or in any other capacity to represent, act for, bind or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
12.7 No Third-Party Beneficiaries. No Party will be deemed as a third-party beneficiary to this Agreement.
12.8 Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned or delegated by Customer without the prior written consent of the Company, which consent may not be unreasonably withheld. The Company may assign this Agreement and all rights and obligations to a third party without notice, including, but not limited to, for the collection of unpaid receivables or in connection with a merger, change of control, sale of substantially all its assets, or other corporate restructuring.
12.9 Force Majeure. Except for any payment obligations hereunder, any delay in or failure of performance by either Party under this Agreement shall not be considered a breach of this Agreement and shall be excused to the extent caused by any occurrence beyond the reasonable control of such party including, but not limited to fires, floods, epidemics, famines, earthquakes, hurricanes and other natural disasters or Acts of God; regulation or acts of any civilian or military authority or act of any self-regulatory authority; wars, terrorism, riots, civil unrest, sabotage, theft or, other criminal acts of third-parties.
12.10 Waiver and Modifications. All waivers must be in writing. Any waiver or failure to enforce a provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or such provision on any other occasion. Except as otherwise set forth in these Terms, this Agreement may only be amended by a written document signed by both Parties.
12.11 Publicity. The Company may identify Customer as a customer in its marketing and promotional materials and may verbally disclose the fact that Customer is a customer in its discussions with potential customers. Any use of Customer’s name, logo, or trademarks shall comply with Customer’s then-current brand guidelines. Customer can opt out of such use by written notice to the Company and Company shall cease to include the Customer’s entity name and logo in its promotional and advertising materials.
12.12 Entire Agreement. The Privacy Policy and this Agreement, including all Orders and Statements of Work hereto, and the pricing set forth in the Customer account relating to the Subscription Fees payable hereunder constitutes the entire, final and exclusive agreement between the Parties regarding the subject matter hereof and supersedes all prior or contemporaneous, agreements, understandings and communications, whether, written and oral.
12.13 Counterparts. This Agreement may be signed in several counterparts, each of which shall constitute an original.
12.14 Exports. The Service utilizes software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Service or the underlying software or technology to, or make the Service or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the underlying software or technology available outside the U.S.
