Last Updated: July 18th, 2024
This Terms of Service agreement (the "Agreement") is between CrowdANALYTIX Inc., a Delaware corporation with offices at 7250 Dallas Parkway, Suite 400, Plano, TX 75024, d/b/a dataX.ai ("dataX.ai") and the legal entity identified on the Order Form ("Customer"). This Agreement, along with the dataX.ai Privacy Policy can be found at https://www.datax.ai/privacy-policy and any other applicable policies (collectively, the “Agreement”) governs the use of the Service and may be updated from time to time. The current version can be found at https://www.datax.ai/customer-terms-of-service.
1. Definitions
“Affiliate” means an entity that controls, is controlled by, or is under common control of a Party, where “control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of the subject entity.
“Administration Data" means information Customer or Users provide dataX.ai in connection with the use or administration of accounts to be used with the Services, including User's first and last name, a username, email address, or Customer's billing contact information.
"AI Enabled & Data Features" means those elements of the Services powered by technologies such as artificial intelligence, including but not limited to logical, mathematical and statistical processes and data management tasks such as extraction, loading, and transformation (e.g., normalization). to process inputs to generate and return Platform Output.
"Customer Materials" means all information, data, content, and other materials submitted to the Services, including from Third-Party Applications. Customer Materials excludes Usage Data, Feedback, and Administration Data.
"Documentation" means the official dataX.ai provided standard usage documentation and related information applicable to the Services, whether in electronic, paper, or equivalent form, as updated by dataX.ai from time to time.
"Error" means any failure of the Platform Services to conform to the operational and functional requirements described in the Documentation, excluding any non-conformities resulting from scheduled updates, maintenance, or other planned service interruptions that have been communicated to the Customer in advance.
"Harmful Code" means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.
"Order" or "Order Form" means a written or electronic order form, executed by the Parties, identifying the Services, Usage Metrics, and other information relevant to a specific transaction between Customer and dataX.ai. Each Order will be governed by this Agreement and is incorporated herein by this reference.
"Overage Fees" means any fees charged by dataX.ai for Customer's usage of the Services that exceeds the processing cap or other usage limits specified in the applicable Order Form. Overage Fees, if applicable, are calculated based on the excess usage beyond the agreed-upon limits and are charged at the rate specified in the Order Form or as otherwise agreed upon in writing by the parties.
“Personal Data" means Customer Materials and/or Administration Data relating to an identified or identifiable natural person.
"Platform Output" means the data, results, and outcomes generated from applying the Customer Materials via the AI Enabled & Data Features, which may include, but not be limited to, data analysis, predictions, transformations, and other output generated via the capabilities of the Platform Services. Platform Output does not constitute part of the Platform Services.
"Platform Services" means the dataX.ai software-as-a-service analytics and data extraction platform, AI-Enabled & Data Features, and all associated Updates, offered on a subscription basis by dataX.ai via an Order that provides the functionality described in the Documentation.
"Professional Services" means implementation, integration, optimization, technical, consulting, training, audit, and related services provided by or through dataX.ai intended to facilitate optimal use of the Platform Services, as described in the relevant Order form or SOW.
"Reseller" means a third party authorized by dataX.ai to promote and resell the Services.
"Services" means, collectively, as applicable, Platform Services, Support Services, and Professional Services that Customer has ordered and dataX.ai has agreed to provide, as indicated on the applicable Order.
"Statement of Work" or "SOW" means a document executed by the Parties describing Professional Services purchased by Customer pursuant to an Order. Each SOW will be governed by this Agreement and is incorporated herein by this reference.
"Subscription Term" means the entire period during which Customer is entitled to use the Services, including the initial term and any applicable renewal terms, as set forth on the applicable Order.
"Support Services" means dataX.ai's customer support for the Platform Services as described in the Documentation or Order Form.
"Third Party Applications" means any product, service, add-on, or platform not provided by dataX.ai that Customer may opt to use with the Services as further described in this Agreement, whether owned, leased, or otherwise licensed by Customer, located on Customer's premises or based in the cloud, or utilized by Customer on a software-as-a-service or similar basis.
"Updates" means all updates and enhancements that dataX.ai makes generally available, at no additional charge, to its customers of the Platform Services identified in an Order and licensed hereunder.
"Usage Data" means usage information reflecting the access or use of the Platform Services by or on behalf of Customer or a User, including learnings and information on technical logs, service interactions, User visits, predictive models and analytics, as well as statistical, functional, behavioral, or other information or data based on or derived from any of the foregoing.
"Usage Metrics" means the solutions, quantities, charges, and related metrics used to determine the scope of Customer's access and use of the Services and associated fees, as set out in an Order.
"Users" means the individuals or agents authorized by Customer to use the Services. Users include employees, consultants, agents, and other third parties accessing the Services on Customer's behalf pursuant to this Agreement.
2. Service and Users
2.1 Order Forms and Usage Metrics. To receive the Service, dataX.ai and Customer will enter into an Order Form (“Order Form”). Each Order Form is incorporated into and governed by this Agreement. The Order Form defines the applicable "Usage Metrics," including permitted solutions, quantities, charges, and other metrics related to Customer's access and use of the Service.
2.2 Users; Unauthorized Use and Access. Use of and access to the Services is permitted only by Users. Customer is responsible for: (a) Users’ compliance with this Agreement and any Order(s); (b) maintaining the confidentiality of usernames, passwords, and other account information; (c) all activities that occur under its Users’ usernames, passwords, or accounts; and (d) ensuring Users’ use the Services only in accordance with the Documentation and all applicable laws. In case of any unauthorized access or use, Customer will immediately notify dataX.ai and take all steps necessary to terminate such access or use. Customer is responsible for any and all actions taken using its account.
2.3 AI Enabled & Data Features. Customer acknowledges that certain portions of the Services may include or be powered by AI Enabled & Data Features, which may return Platform Output.
2.4 Protection of Administration and Customer Materials. The Parties do not anticipate sharing or transferring any Personal Data that dataX.ai collects or derives from interactions with Customer under this Agreement beyond the limited amount of Personal Data solely as needed to administer and fulfill the terms of this Agreement. dataX.ai will maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Materials. Customer will only provide dataX.ai with the minimum amount of Personal Data necessary to enable Customer to use the Services in accordance with this Agreement. DataX.ai will process Administration Data in accordance with https://www.datax.ai/privacy-policy, as updated by dataX.ai from time to time, and will comply with all applicable privacy and data protection laws and regulations and shall not transfer Personal Data to any third party without the prior written consent of Customer. If Personal Data is to be exchanged at any point during this Agreement, the Parties will enter into an amendment to this Agreement relating to the management and processing of Personal Data by dataX.ai.
2.5 Changes to Services. dataX.ai may issue new releases for the Services during the Subscription Term which may include Updates, enhancements, or other modifications, which will be included in the Fees set out in the Order.
2.6 Support Services. During the Subscription Term, dataX.ai will provide customer assistance and technical support to help Customer to effectively utilize and troubleshoot the Platform Services. This may include, but is not limited to: (a) Responding to user inquiries and issues, (b) Providing guidance on platform features and functionality, (c) Troubleshooting technical problems, (d) Offering resources for self-help and documentation, (e) Maintaining and updating the Platform Services, (f) Communicating with Customer about planned maintenance or changes to the Platform Services that may impact usage.
2.7 Professional Services. dataX.ai will perform Professional Services as described in an Order form or Statement of Work, which may identify additional terms or milestones for such Professional Services. Customer will give dataX.ai timely access to Customer's facilities, materials, or related resources, reasonably needed for providing the Professional Services. Subject to any limits in an Order or Statement of Work, Customer will reimburse dataX.ai's reasonable travel and lodging expenses incurred in providing Professional Services.
2.8 Beta Services. From time to time, dataX.ai may invite Customer and Users to discuss or evaluate certain pre-release or beta services ("Beta Services"). Customer may accept or decline any such evaluation or trial. Beta Services designated by dataX.ai as Beta Services (e.g., "beta," "pilot," "non-production evaluation", or other similar designation) are solely for Customer's evaluation purposes. If Customer opts into Beta Services, Customer agrees to participate in usage and other testing and provide Feedback about the Beta Services, as reasonably requested by dataX.ai. Beta Services are not considered Services under this Agreement, are not supported, and may be subject to additional terms as set forth in an Order. Unless otherwise stated in an Order, any Beta Services evaluation period will expire upon the earlier of ninety (90) days from the evaluation start date or the date that a version of the Beta Services becomes generally available, unless such Beta Services are earlier discontinued by dataX.ai. dataX.ai may discontinue Beta Services at any time and may never make Beta Services generally available. dataX.ai will not be liable for any damages or harm arising out of or in connection with Beta Services. Beta Services are provided "as is" without express or implied warranty and without indemnity. dataX.ai will have no liability for, and Customer hereby releases dataX.ai from any liability or damage arising out of or in connection with any Beta Services.
3. Restrictions
Customer will not, and will ensure that Users do not:
4. Third-Party Applications
Third-Party Applications may be available to Customer, including via dataX.ai's APIs, for use in conjunction with the Services. By using Third-Party Applications, Customer permits dataX.ai to grant such Third-Party Applications access to Customer Materials or other Services data as required for the use and support of such Third-Party Applications in conjunction with the Services. Third-Party Applications may be subject to the third-party provider's additional terms and may require an additional fee to such providers to use the Third-Party Applications. The Services may contain features designed to interoperate with Third-Party Applications. Such features are not considered Services under this Agreement. dataX.ai may cease providing such features for any reason, including if the provider of the Third-Party Application ceases to make the Third-Party Application available for interoperation with the Services, without entitling Customer to any refund, credit, or compensation from dataX.ai. dataX.ai is not responsible for and offers no warranty with respect to Third-Party Applications or their use or protection of Customer Materials or the Platform Output.
5. Fees & Payment; Suspension of Service
5.1 Fees. All fees and fee schedules are set forth in the applicable Order Form. Except as expressly set forth in an Order Form, all fees are non-refundable.
5.2 Payment Terms. Unless otherwise stated on an Order Form, all Fees will be billed annually in advance. All invoices for Fees are due and payable within the timeframe and in United States Dollars ("USD") set forth in the applicable Order Form. Interest accrues from the due date at the higher of 1.5% per month or the highest rate allowed by law (“Late Payment Interest”). Customer is responsible for providing complete and accurate billing and contact information to dataX.ai and notifying dataX.ai of any changes to such information.
5.3 Taxes. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders (identified or not), whether domestic or foreign (“Taxes”), other than dataX.ai’s income tax. Fees and expenses are exclusive of Taxes.
5.4 Suspension of Service. If Customer’s account is ten (10) days or more overdue, dataX.ai reserves the right to suspend Customer’s access to the Service without liability until such amounts are paid in full. dataX.ai may also suspend Customer’s access to the Services for breach of this Agreement, including violations of the provisions in Section 2.2 and 3. dataX.ai will use good-faith, reasonable efforts to notify Customer via email before taking such actions.
5.5 Purchases Through a Reseller. If Customer purchases Services through a Reseller, the pricing and payment terms are between Customer and Reseller (“Reseller Terms”). Customer acknowledges: (a) all payments for Services procured via a Reseller will be made directly to the Reseller and in accordance with the Reseller Terms, and (b) if a Reseller notifies dataX.ai of its right to terminate or suspend any Services, dataX.ai may terminate or suspend such Services. dataX.ai will not be liable to Customer or to any third party for any liabilities, claims, or expenses arising from or relating to any applicable Reseller Terms.
5.6 Overage Fees and Notifications.
(a) allow continued usage of the Services and apply Overage Fees;
(b) require an adjustment to the processing cap or modification of the Order Form; or
(c) suspend or limit Services until the matter is resolved.
6. Customer Materials, Platform Output and Ownership
6.1 "Customer Materials" means all information, data, content, and other materials submitted to the Services, excluding Usage Data and Feedback.
6.2 "Platform Output" means the data, results, and outcomes generated from applying the Customer Materials via the AI Enabled & Data Features.
6.3 Ownership; Reservation of Rights.
(a) As between Customer and dataX.ai, Customer retains all ownership rights in and to the Customer Materials and Platform Output. Customer grants dataX.ai a worldwide, limited-term license to use Customer Materials and Platform Output as necessary to provide the Services. Customer is solely responsible for the accuracy and quality of Customer Materials and obtaining appropriate usage rights.
(b) As between dataX.ai and Customer, all rights, title, and interest in and to all intellectual property rights in the Services and dataX.ai’s Confidential Information are and will remain owned exclusively by dataX.ai and its licensors. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of dataX.ai will immediately vest in dataX.ai upon creation. Unless otherwise specified in the applicable SOW, all deliverables provided in the performance of Professional Services are owned by dataX.ai and will be made available as part of the Platform Services provided under this Agreement. Nothing in this Agreement will preclude or restrict dataX.ai from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set forth in this Agreement, no license or other rights in or to the Services or other dataX.ai intellectual property rights are granted to Customer, and all such rights are expressly reserved to dataX.ai and its licensors.
7. Usage Data
7.1 "Usage Data" means usage information reflecting the access or use of the Services, including learnings and information on technical logs, service interactions, User visits, predictive models, and analytics.
7.2 Customer agrees that dataX.ai may collect, process, use, and otherwise derive Usage Data for its own analysis, models, marketing, support, and other lawful business purposes. dataX.ai will only disclose Usage Data if such data is (a) aggregated or anonymized, and (b) does not disclose the identity of Customer, Personal Data of its Users, or any Customer Confidential Information.
8. Feedback
8.1 "Feedback" means any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation.
8.2 Customer grants dataX.ai an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such Feedback without any restrictions or attribution.
9. Term and Termination
9.1 Term. Each Order Form is effective on the date set forth therein and automatically renews on an annual basis unless terminated with 90 days advance written notice.
9.2 Termination. Either party may terminate an Order Form (including all related Order Forms) if the other party fails to remedy any material breach, including a failure to pay fees. Customer may not cancel any portion of an Order Form during the Subscription Term. This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.
9.3 Data Export & Deletion. During a Subscription Term, Customer may export Customer Materials from the Platform Services, or dataX.ai may provide Professional Services subject to dataX.ai's prevailing rates as further described in an Order or SOW executed hereunder. After termination or expiration of this Agreement, within thirty (30) days of request, dataX.ai may delete Customer Materials, and each Party will delete any Confidential Information of the other in its possession or control.
9.4 Effect of Termination. Upon any expiration or termination, Customer will immediately cease all use of and access to the Service. Except where an exclusive remedy is specified, the exercise of either Party of any remedy, including termination, will be without prejudice to any other remedies it may have under an Order Form, by law, or otherwise. The following Sections will survive any expiration or termination of this Agreement: 6 (Customer Materials, Platform Output and Ownership), 7 (Usage Data), 8 (Feedback), 5 (Fees & Payment; Suspension of Service), 9 (Term and Termination), 10 (Limited Warranty and Disclaimer), 11 (Service Availability), 12 (Limitation of Liability), 13 (Indemnification), 14 (Confidential Information), and 15 (General Terms).
10. Limited Warranty and Disclaimer
10.1 Limited Warranty. dataX.ai warrants that (a) the Platform Services will perform materially in accordance with the applicable Documentation; (b) dataX.ai will not materially decrease the overall functionality of the Services during the current Subscription Term; (c) dataX.ai will use industry standard measures to prevent dataX.ai from introducing Harmful Code through the Platform Services; and (d) dataX.ai will perform the Professional Services in a diligent and professional manner. dataX.ai’s entire liability for a breach of the above warranties will be the correction of the deficient service, provision of comparable functionality, or, if dataX.ai cannot accomplish the foregoing in a commercially reasonable manner, dataX.ai may terminate the deficient service and refund Customer any prepaid Fees related to the Platform Services prorated for the remainder of the Subscription Term following notice of the breach of warranty.
10.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES IN THIS SECTION, THE SERVICE AND ANY OTHER DATAX.AI OFFERING ARE PROVIDED “AS IS”. NEITHER DATAX.AI NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. DATAX.AI WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF DATAX.AI. DATAX.AI MAKES NO REPRESENTATIONS ABOUT ANY CUSTOMER MATERIALS OR OTHER INFORMATION FROM ANY USER. DATAX.AI HAS NO RESPONSIBILITY OR LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY CUSTOMER MATERIALS.
11. Service Availability
dataX.ai will use commercially reasonable efforts to make the Platform Services available. In the event of an Error, dataX.ai shall use commercially reasonable efforts to provide Support Services within the service levels specified in the respective Order Form or Documentation. dataX.ai may update or modify the Service from time to time and does not promise that any features or functionality will continue to be available. If dataX.ai changes the Service in a manner that materially reduces its functionality, dataX.ai will provide Customer with reasonable prior written notice. If Customer objects to such changes within 30 days of notification, Customer may terminate the applicable Order Form.
12. Limitation of Liability
12.1 Exclusion of Damages. NEITHER PARTY (OR ITS AFFILIATES) WILL BE LIABLE FOR ANY LOSS OF PROFITS, REVENUES, OR GOODWILL, OR BUSINESS INTERRUPTION, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, COSTS OF SUBSTITUTE GOODS OR SERVICES, WORK STOPPAGE, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12.2 Limitation of Liability. A PARTY’S (AND ITS RESPECTIVE AFFILIATES’) AGGREGATE CUMULATIVE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE APPLICABLE SUBSCRIPTION FEES PAID OR PAYABLE TO DATAX.AI FOR THE PLATFORM SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT EXPAND THIS LIMIT. THE LIABILITY LIMITATIONS UNDER THIS SECTION 12.2 WILL NOT APPLY TO (A) CUSTOMER’S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT; (B) CUSTOMER’S BREACH OF SECTIONS 2.2 OR 3; (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 13; (D) EITHER PARTY'S BREACH OF SECTION 14 (CONFIDENTIAL INFORMATION), EXCLUDING BREACHES RELATED TO CUSTOMER MATERIALS; (E) A PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR (F) EITHER PARTY’S NEGLIGENCE ON-SITE DURING THE PERFORMANCE OF PROFESSIONAL SERVICES THAT RESULTS IN DEATH, PERSONAL INJURY, OR DAMAGE TO TANGIBLE PROPERTY.
12.3 Enhanced Liability Cap. NOTWITHSTANDING SECTION 12.2 ABOVE, IN NO EVENT WILL DATAX.AI'S CUMULATIVE LIABILITY FOR A SECURITY BREACH RELATED TO CUSTOMER MATERIALS EXCEED THREE TIMES (3X) THE APPLICABLE SUBSCRIPTION FEES PAID OR PAYABLE TO DATAX.AI FOR THE PLATFORM SERVICES GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM ("ENHANCED LIABILITY CAP").
13. Indemnification
13.1 Indemnification by dataX.ai.
(a) dataX.ai will defend any claim brought against Customer by a third-party to the extent such claim alleges that Customer’s use of the Services infringes any valid and enforceable third-party patent, copyright, or validly registered trademark, or misappropriates a third-party trade secret (“Claim”). dataX.ai will pay all damages (including reasonable attorneys’ fees) finally awarded against Customer by a court of competent jurisdiction, or the settlement agreed to by dataX.ai.
(b) If any Claim is brought or threatened, or if dataX.ai reasonably believes that the Services may become the subject of a Claim, dataX.ai may, at its sole option and expense (1) procure for Customer the right to continue to use the applicable Services; (2) modify the Services to make it non-infringing; (3) replace the affected aspect of the Subscription Service with non-infringing technology having substantially similar capabilities; or (4) if dataX.ai determines none of the foregoing is commercially practicable, terminate this Agreement upon thirty (30) days’ written notice and refund Customer any prepaid Fees related to the Services prorated for the remainder of the Subscription Term.
(c) dataX.ai’s defense and indemnity obligations do not apply to the extent that, and dataX.ai will have no liability with respect to (1) any modification of the Services made by anyone other than dataX.ai, (2) any use of the Services in combination with software, products, or services not provided by dataX.ai, (3) any Third-Party Applications; (4) Services under an Order for which there is no charge; (5) Customer’s use of the Services not in compliance with this Agreement; or (6) Customer’s failure to use any modification or Update provided by dataX.ai. This indemnity states dataX.ai’s entire liability, and Customer’s exclusive remedy, for any third-party Claims as described in Section 13.1.
13.2 Indemnification by Customer. Customer will defend any claim brought against dataX.ai by a third party to the extent such claim relates to the Customer Materials or Third-Party Applications built by or on behalf of Customer. Customer will pay all damages (including reasonable attorneys’ fees) finally awarded against dataX.ai. This indemnity states Customer’s entire liability, and dataX.ai’s exclusive remedy, for any third-party claims as described in this Section 13.2
13.4 Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a) prompt written notice, (b) sole control over the defense and any settlement negotiations, and (c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of the indemnifiable claim, on condition that the indemnified Party’s prior written consent will be required with regard to any settlement that imposes any obligation or liability on the indemnified Party, such consent not to be unreasonable withheld, conditioned, or delayed. The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.
14. Confidential Information
14.1 Definition. “Confidential Information” means any technical and business information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information of Customer includes Customer Materials; Confidential Information of dataX.ai includes the Services, any discussions or information related to any Beta or pre-production Services, and Usage Data; and Confidential Information of each Party includes the terms of this Agreement and all Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes.
14.2 Protection. The Receiving Party shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) not to disclose or use any Confidential Information of the Disclosing Party except as reasonably necessary to perform its obligations or to exercise its rights under this Agreement or with the Discloser’s prior written permission. Either party may disclose Confidential Information on a need-to-know basis to its affiliates, advisors, contractors and service providers, who are bound by confidentiality obligations at least as restrictive as those in this Section.
14.3 Exceptions. The Receiving Party’s obligations under this Section 14 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law, or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). 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 will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
15. General Terms
15.1 Binding Effect; Assignment. Each Order Form will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign an Order Form (including this Agreement as incorporated therein) without the advance written consent of the other party, except that either party may assign an Order Form in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or stock. Any attempt to transfer or assign an Order Form except as expressly authorized under this Section 15 will be null and void.
15.2 Notices. Notices must be sent via first-class mail, airmail, or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to dataX.ai must be sent by mail to dataX.ai, 7250 Dallas Parkway, Suite 400, Plano, TX 75024 or by email to connect@dataX.ai.
15.3 Governing Law; Dispute Resolution. Each Order Form will be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and any dispute regarding an Order Form or this Agreement shall be resolved in the state and federal courts located in the State of Delaware, and the Parties agree and consent to the exclusive jurisdiction and venue of such courts.
15.4 Entire Agreement; Order of Precedence. Each Order Form (including all dataX.ai policies referred to in this Agreement) constitutes the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of such Order Form. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (1) the Order, (2) any SOW, (3) executed Service Agreement with Customer (4) this Agreement, and (5) any links provided herein.
15.5 Amendment. dataX.ai reserves the right, at dataX.ai’s discretion, to change this Agreement on a going-forward basis at any time, effective upon publication.
15.6 Force Majeure. Neither Enable nor Customer will be liable for inadequate performance (except for Customer’s payment obligations) to the extent caused by a condition that was beyond the party’s reasonable control (for example, a natural disaster, act of war or terrorism, pandemic, riot, labor condition, governmental action, and Internet disturbance).
15.7 Subcontractors. dataX.ai may use the services of subcontractors for performance of services under an Order Form, provided that dataX.ai remains responsible for (i) compliance of any such subcontractor with the terms of the Order Form and (ii) for the overall performance of the Service as required under this Agreement.
15.8 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that dataX.ai will have no obligations or liability whatsoever to any third parties with which Customer does business.
15.9 Publicity and Reference. Customer grants dataX.ai the right to use Customer's company name and logo as a reference for marketing or promotional purposes on dataX.ai's website and in other public or private communications with existing or potential customers, subject to Customer's standard trademark usage guidelines as provided to dataX.ai from time to time. If, at any time, Customer does not wish to be used as a dataX.ai reference, Customer may revoke such grant in part or in whole by sending an email stating its intent to: connect@datax.ai.
15.10 U.S. Government Rights. If Customer, or any User, is a branch, agency, or instrumentality of the United States Government, the following provision applies: The Services and Documentation comprise “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3.
15.11 Export Control. Each Party will comply with all applicable Export Control and Sanctions Laws and Regulations in connection with providing and using the Services. Without limiting the foregoing, (a) each Party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to U.S. jurisdiction (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) Customer will not, and will ensure that Users do not, violate any Export Control and Sanctions Laws and Regulations, or cause any such violation to occur; and (c) Customer will not use or cause any person to use the Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations.
15.12 Anti-Corruption. Neither Party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other Party in connection with this Agreement. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.
15.13 Miscellaneous. If a provision of this Agreement is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the Parties as evidenced by this Agreement, and the remainder of this Agreement will continue in full force. This Agreement is in the English language only, which language is controlling in all respects, and all versions of this Agreement in any other language are for accommodation only and will not be binding on the Parties. Waiver of any term of this Agreement or forbearance to enforce any term by either Party will not constitute a waiver as to any subsequent breach or failure of the same term, or a waiver of any other term of this Agreement. There are no third-party beneficiaries to this Agreement, and Customer acknowledges that dataX.ai will have no obligations or liability whatsoever to any third parties with which Customer does business.