DEFINITY TERMS AND CONDITIONS
Please read the following carefully before installing and/or using the Software (as defined below). By clicking “I agree”, “accept”, or a similar button, you expressly acknowledge and agree that you (“you” or “Customer”), on behalf of yourself or your Organization (as defined below), are entering into these Terms and Conditions, including the exhibits attached hereto (if any) (the “Agreement”), a legal agreement with Definity AI Inc., a company incorporated under the laws of the state of Delaware, having its principal place of business at 1530 N Dearborn Pkwy, APT 12S, Chicago, IL60610 (“Definity”) (you and Definity each, a “Party” and collectively, the “Parties”), and have understood and agree to comply with, and be legally bound by, the terms and conditions of this Agreement (the date of such occurrence being the “Effective Date”). If you are entering into this Agreement on behalf of your employer or other legal entity, you represent and warrant that you have full authority and capacity to bind said employer or other legal entity to this Agreement. To the extent that you agree to this Agreement by clicking “I agree”, “accept”, or a similar button, you hereby waive any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.
1. Usage Right
Subject to the terms and conditions of this Agreement, Definity hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to either, as the case may be, install, use, and/or remotely access (i.e., on a SaaS basis, installed on Customer's premises or both) a limited version of Definity's proprietary software product (the “Software”) during the Term (as defined below), solely for Customer's internal purposes. Unless otherwise indicated, the term “Software” also includes any appliance and any documentation (“Documentation”) provided to Customer in connection with the operation of the Software. Customer may only use the Software in accordance with the Documentation and applicable laws. The Software and any related services provided to Customer shall be referred to as the “Services”. If Customer is entering into this agreement on behalf of an employer or other legal entity (“Organization”), Customer represents that they have the right, authority, and capacity to bind the Organization to this agreement. In such a case, all references to “Customer” hereinafter shall mean the Organization. If the Customer intends to exceed, or anticipates exceeding, the limitations of the license for the Software granted under this Agreement, the Customer and the Definity shall execute a new agreement that reflects the pricing mutually agreed upon by the Parties and shall be governed by the Definity's then-current subscription Software terms of service.
2. Permitted Users
The Software may be accessed solely by Customer's employees and/or subcontractors who are explicitly authorized by Customer to use the Software on Customer's behalf (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times and shall be fully responsible for any breach of this Agreement by a Permitted Use. Unauthorized access or use of the Software must be immediately reported to Definity.
3. Prohibited Uses
Except as specifically permitted herein, without the prior written consent of Definity, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of, or distribute any part of the Software (including by incorporation into its products); (ii) sell, license (or sublicense), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Definity to disclose the source code of the Software to any third party; (iv) disclose the results of any testing or benchmarking of the Software to any third party; (v) disassemble, decompile, reverse engineer, or attempt to discover the Software’s source code or underlying algorithms; (vi) use the Software in a manner that violates or infringes any rights of any third party, including, but not limited to, privacy rights, publicity rights, or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Software; (viii) circumvent, disable, or otherwise interfere with security-related features of the Software or features that enforce use limitations; (ix) export, make available, or use the Software in any manner prohibited by applicable laws (including, without limitation, export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Software.
4. Personal Data
Customer hereby warrants and represents that it will (a) provide all appropriate notices, (b) obtain all required informed consents and/or have any and all ongoing legal bases, and (c) comply at all times with any and all applicable privacy and data protection laws and regulations, for allowing Definity to use and process the data in accordance with this Agreement for the provision of the Software and the performance of this Agreement. To the extent that Customer needs a data processing agreement ("DPA"), Customer shall notify Definity by sending an email to privacy@definity.ai.
5. Warranties
Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, THE SERVICES, AND THE RESULTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS. DEFINITY DOES NOT WARRANT THAT: (i) THE SOFTWARE AND/OR THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE SOFTWARE WILL OPERATE ERROR-FREE OR BUG-FREE. DEFINITY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER HEREBY AGREES AND UNDERSTANDS THAT DEFINITY IS NOT RESPONSIBLE TO CUSTOMER FOR ANY DELETIONS OF CUSTOMER'S DATA AND/OR ANY ERRORS, INACCURACIES, OR DAMAGES RESULTED TO CUSTOMER'S SERVICES OR PRODUCTS. CUSTOMER'S USE OF THE SOFTWARE AND THE SERVICES, OR ANY PART THEREOF, IS MADE SOLELY AT CUSTOMER'S OWN RISK AND RESPONSIBILITY.
6. Intellectual Property Rights
The Software is not for sale and is Definity’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Software (and any and all improvements and derivative works thereof) and any other products, deliverables or services provided by Definity are and shall remain owned solely by Definity or its licensors. This Agreement does not convey to Customer any interest in or to the Software other than a limited right to use the Software in accordance with this Agreement. Nothing herein constitutes a waiver of Definity’s intellectual property rights under any law.
If Definity receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Definity and Customer hereby irrevocably and unconditionally transfers and assigns to Definity all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Definity at its sole discretion, and that Definity in no way shall be obliged to make use of any kind of Feedback or part thereof.
Any information about the use or operation of the Software (including, but not limited to, aggregated analytics information, metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used by Definity for business purposes, including but not limited to, for providing the Services, for development, and/or for statistical purposes. Such Analytics Information is Definity's exclusive property. Analytics Information does not include Customer Data (as defined below).
As between the Parties, Customer is, and shall be, the sole and exclusive owner of all data inputted or uploaded to the Software by Customer (“Customer Data”).
The Software may include certain open-source code software and materials that are distributed together with the Software and that are subject to their respective open-source licenses. If there is a conflict between any open-source license and the terms of this Agreement, then the open-source license terms shall prevail but solely in connection with the related third-party open-source software.
7. Confidentiality
Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL DEFINITY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, AND DEFINITY'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS (US $100). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 8 (LIMITATION OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF DEFINITY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY).
9. Suspension, Term and Termination.
If the Software becomes, or in Definity's opinion is to potentially become, the subject of a third party intellectual property dispute or claim (“IP Infringement Dispute”), then Definity may, at its sole discretion: (a) procure for Customer the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Dispute; or (c) terminate this Agreement. Definity shall have no responsibility for IP Infringement Disputes resulting from or based on: (i) modifications to the Software made by a party other than Definity or its designee; (ii) Customer's failure to implement software updates provided by Definity specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied by Definity or not in accordance with the Documentation. If Definity believes that Customer is using the Software in a manner that may cause harm to Definity or any third party then Definity may, without derogating from Definity's right to terminate this Agreement for any breach hereof, suspend Customer's access to and use of the Software, or require Customer to immediately cease the use of the Software and in such case non-compliance with the request is deemed a material breach of the Agreement, until such time as Definity believes the threat of harm, or actual harm, has passed.
This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for twelve (12) months unless earlier terminated as set forth herein (the “Initial Term”). Following such Initial Term, the Agreement shall be automatically renewed for successive thirty (30) day terms unless terminated earlier as set forth herein (each a “RenewalTerm” and, if relevant, together with the Initial Term, the “Term"). Each party may terminate this Agreement at any time, for any reason or no reason, upon at least thirty (30) days' prior written notice to the other party. Without derogating from the above, Definity may terminate this Agreement with immediate effect if the Customer materially breaches this Agreement and such breach remains uncured ten (10) days after receiving written notice thereof. Upon termination or expiration of this Agreement: (i) the Software license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation in Customer's or any of its representatives’ possession or control; and (iii) Definity may delete all Customer Data uploaded on the Software without affecting any of Definity's rights to the Analytics Information. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including limitation of liability) shall so survive. If applicable, Customer shall be responsible for downloading its data from the Software prior to termination of this Agreement.
10. Customer Reference
Customer hereby agrees that Definity may use Customer's name and logo to identify Customer as a customer of Definity or user of the Software, on Definity's website, presentations, marketing materials or otherwise.
11. Miscellaneous
This Agreement, including the DPA (if applicable), represents the complete agreement concerning the subject matter hereof and may be amended by Definity at any time by posting the modified Agreement on Definity's website. Such amendment shall become effective within seven (7) days following such posting. The failure of Definity to enforce any rights granted hereunder or to take action against the Customer in the event of any breach hereunder shall not be deemed a waiver by Definity as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Software by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Definity may assign this Agreement (or any of its rights and obligations) without restriction or obligation. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Definity. This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to principles and laws relating to the conflict of laws. The competent courts of the State of Delaware, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement; except however that Definity may seek equitable relief in any court of competent jurisdiction. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Definity will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Definity including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi\-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Definity.
1. Usage Right
Subject to the terms and conditions of this Agreement, Definity hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, and revocable right to either, as the case may be, install, use, and/or remotely access (i.e., on a SaaS basis, installed on Customer's premises or both) a limited version of Definity's proprietary software product (the “Software”) during the Term (as defined below), solely for Customer's internal purposes. Unless otherwise indicated, the term “Software” also includes any appliance and any documentation (“Documentation”) provided to Customer in connection with the operation of the Software. Customer may only use the Software in accordance with the Documentation and applicable laws. The Software and any related services provided to Customer shall be referred to as the “Services”. If Customer is entering into this agreement on behalf of an employer or other legal entity (“Organization”), Customer represents that they have the right, authority, and capacity to bind the Organization to this agreement. In such a case, all references to “Customer” hereinafter shall mean the Organization. If the Customer intends to exceed, or anticipates exceeding, the limitations of the license for the Software granted under this Agreement, the Customer and the Definity shall execute a new agreement that reflects the pricing mutually agreed upon by the Parties and shall be governed by the Definity's then-current subscription Software terms of service.
2. Permitted Users
The Software may be accessed solely by Customer's employees and/or subcontractors who are explicitly authorized by Customer to use the Software on Customer's behalf (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times and shall be fully responsible for any breach of this Agreement by a Permitted Use. Unauthorized access or use of the Software must be immediately reported to Definity.
3. Prohibited Uses
Except as specifically permitted herein, without the prior written consent of Definity, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of, or distribute any part of the Software (including by incorporation into its products); (ii) sell, license (or sublicense), lease, assign, transfer, pledge, or share Customer's rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Definity to disclose the source code of the Software to any third party; (iv) disclose the results of any testing or benchmarking of the Software to any third party; (v) disassemble, decompile, reverse engineer, or attempt to discover the Software’s source code or underlying algorithms; (vi) use the Software in a manner that violates or infringes any rights of any third party, including, but not limited to, privacy rights, publicity rights, or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Software; (viii) circumvent, disable, or otherwise interfere with security-related features of the Software or features that enforce use limitations; (ix) export, make available, or use the Software in any manner prohibited by applicable laws (including, without limitation, export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Software.
4. Personal Data
Customer hereby warrants and represents that it will (a) provide all appropriate notices, (b) obtain all required informed consents and/or have any and all ongoing legal bases, and (c) comply at all times with any and all applicable privacy and data protection laws and regulations, for allowing Definity to use and process the data in accordance with this Agreement for the provision of the Software and the performance of this Agreement. To the extent that Customer needs a data processing agreement ("DPA"), Customer shall notify Definity by sending an email to privacy@definity.ai.
5. Warranties
Each Party represents and warrants that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; and that the execution and performance of this Agreement will not conflict with other agreements to which it is bound or violate applicable law.
OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, THE SERVICES, AND THE RESULTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS. DEFINITY DOES NOT WARRANT THAT: (i) THE SOFTWARE AND/OR THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS, OR (ii) THE SOFTWARE WILL OPERATE ERROR-FREE OR BUG-FREE. DEFINITY EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER HEREBY AGREES AND UNDERSTANDS THAT DEFINITY IS NOT RESPONSIBLE TO CUSTOMER FOR ANY DELETIONS OF CUSTOMER'S DATA AND/OR ANY ERRORS, INACCURACIES, OR DAMAGES RESULTED TO CUSTOMER'S SERVICES OR PRODUCTS. CUSTOMER'S USE OF THE SOFTWARE AND THE SERVICES, OR ANY PART THEREOF, IS MADE SOLELY AT CUSTOMER'S OWN RISK AND RESPONSIBILITY.
6. Intellectual Property Rights
The Software is not for sale and is Definity’s sole property. All right, title, and interest, including any intellectual property rights evidenced by or embodied in, attached, connected, and/or related to the Software (and any and all improvements and derivative works thereof) and any other products, deliverables or services provided by Definity are and shall remain owned solely by Definity or its licensors. This Agreement does not convey to Customer any interest in or to the Software other than a limited right to use the Software in accordance with this Agreement. Nothing herein constitutes a waiver of Definity’s intellectual property rights under any law.
If Definity receives any feedback (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Definity and Customer hereby irrevocably and unconditionally transfers and assigns to Definity all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Definity at its sole discretion, and that Definity in no way shall be obliged to make use of any kind of Feedback or part thereof.
Any information about the use or operation of the Software (including, but not limited to, aggregated analytics information, metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used by Definity for business purposes, including but not limited to, for providing the Services, for development, and/or for statistical purposes. Such Analytics Information is Definity's exclusive property. Analytics Information does not include Customer Data (as defined below).
As between the Parties, Customer is, and shall be, the sole and exclusive owner of all data inputted or uploaded to the Software by Customer (“Customer Data”).
The Software may include certain open-source code software and materials that are distributed together with the Software and that are subject to their respective open-source licenses. If there is a conflict between any open-source license and the terms of this Agreement, then the open-source license terms shall prevail but solely in connection with the related third-party open-source software.
7. Confidentiality
Each Party may have access to certain non-public information of the other Party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, data, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section, with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL DEFINITY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, REPUTATION, PROFITS, DATA, OR DATA USE, AND DEFINITY'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS (US $100). THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 8 (LIMITATION OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND: (A) EVEN IF DEFINITY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY).
9. Suspension, Term and Termination
If the Software becomes, or in Definity's opinion is to potentially become, the subject of a third party intellectual property dispute or claim (“IP Infringement Dispute”), then Definity may, at its sole discretion: (a) procure for Customer the right to continue using the Software; (b) replace or modify the Software to avoid the IP Infringement Dispute; or (c) terminate this Agreement. Definity shall have no responsibility for IP Infringement Disputes resulting from or based on: (i) modifications to the Software made by a party other than Definity or its designee; (ii) Customer's failure to implement software updates provided by Definity specifically to avoid infringement; or (iii) combination or use of the Software with equipment, devices or software not supplied by Definity or not in accordance with the Documentation. If Definity believes that Customer is using the Software in a manner that may cause harm to Definity or any third party then Definity may, without derogating from Definity's right to terminate this Agreement for any breach hereof, suspend Customer's access to and use of the Software, or require Customer to immediately cease the use of the Software and in such case non-compliance with the request is deemed a material breach of the Agreement, until such time as Definity believes the threat of harm, or actual harm, has passed.
This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for twelve (12) months unless earlier terminated as set forth herein (the “Initial Term”). Following such Initial Term, the Agreement shall be automatically renewed for successive thirty (30) day terms unless terminated earlier as set forth herein (each a “RenewalTerm” and, if relevant, together with the Initial Term, the “Term"). Each party may terminate this Agreement at any time, for any reason or no reason, upon at least thirty (30) days' prior written notice to the other party. Without derogating from the above, Definity may terminate this Agreement with immediate effect if the Customer materially breaches this Agreement and such breach remains uncured ten (10) days after receiving written notice thereof. Upon termination or expiration of this Agreement: (i) the Software license granted to Customer under this Agreement shall expire, and Customer shall discontinue any further use and access thereof; (ii) Customer shall immediately delete and dispose of all copies of the Documentation in Customer's or any of its representatives’ possession or control; and (iii) Definity may delete all Customer Data uploaded on the Software without affecting any of Definity's rights to the Analytics Information. The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement (including limitation of liability) shall so survive. If applicable, Customer shall be responsible for downloading its data from the Software prior to termination of this Agreement.
10. Customer Reference
Customer hereby agrees that Definity may use Customer's name and logo to identify Customer as a customer of Definity or user of the Software, on Definity's website, presentations, marketing materials or otherwise.
11. Miscellaneous
This Agreement, including the DPA (if applicable), represents the complete agreement concerning the subject matter hereof and may be amended by Definity at any time by posting the modified Agreement on Definity's website. Such amendment shall become effective within seven (7) days following such posting. The failure of Definity to enforce any rights granted hereunder or to take action against the Customer in the event of any breach hereunder shall not be deemed a waiver by Definity as to subsequent enforcement of rights or subsequent actions in the event of future breaches. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. Any use of the Software by an agency, department, or other entity of the United States government shall be governed solely by the terms of this Agreement. Definity may assign this Agreement (or any of its rights and obligations) without restriction or obligation. Customer may not assign its rights or obligations under this Agreement without the prior written consent of Definity. This Agreement shall be governed by and construed under the laws of the State of Delaware, without reference to principles and laws relating to the conflict of laws. The competent courts of the State of Delaware, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement; except however that Definity may seek equitable relief in any court of competent jurisdiction. This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Definity will not be liable for any delay or failure to provide the Services resulting from circumstances or causes beyond the reasonable control of Definity including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi\-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis), or any other cause that is beyond the reasonable control of Definity.