Assistiv Labs Master Services Agreement

Last updated: October 24, 2022

This Assistiv Labs Master Services Agreement (“Agreement”) is made between Assistiv Labs, Inc., a Delaware corporation having its principal place of business at 185 NE Snohomish Ave, Unit 481, White Salmon, WA 98672 (“Assistiv”), and Customer (defined below) and governs the Customer’s use of the Service (each as defined below).

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Start Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses the Service. Assistiv reserves the right to modify or update this Agreement in its sole discretion. If a revision meaningfully reduces Customer’s rights, Assistiv will use reasonable efforts to notify Customer in advance. The effective date of such updates and/or modifications will be the earlier of: (i) Customer’s next renewal Subscription Term; (ii) Customer clicking a box indicating acceptance of the updated and/or modified Agreement; or (iii) if no Subscription Term is in effect, 30 days from the date of such update or modification.

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. THE SERVICE IS INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

If Customer and Assistiv have executed a written agreement governing Customer’s access to and use of the Service as an Assistiv customer, then the terms of such signed agreement will govern and will supersede this Agreement.

1. General.

This Agreement governs the use by Customer, and provision by Assistiv, of the Service described in an Order Form. Upon execution by the parties, each Order Form is incorporated herein by reference. The definitions of certain capitalized terms used in this Agreement are set forth in Section 13 below. Others are defined in the body of the Agreement, an Order Form, or in the DPA.

2. Use of the Service.

2.1. License to Use the Service.

Subject to the terms of this Agreement, Assistiv grants Customer (including its Affiliates) a royalty-free, nonexclusive, nontransferable, worldwide right during each Subscription Term to use the Service for its own internal business operations (and not for the benefit of a third party) as set forth in each Order Form. Users may need to download, install, and use certain Software to access the Service. Assistiv licenses Users to do so provided the Software is used only in conjunction with the Service. Customer acknowledges that access to the Service via the Software may require that Customer or its Users upgrade the Software as such upgrades become available.

2.2. Restrictions.

Customer will not and will not permit anyone else to: (a) sell, sublicense, distribute or rent the Service (in whole or part), allow non-Users to access the Service, or use the Service to provide a hosted or managed service to others; (b) reverse engineer, decompile or seek to access the source code of the Service or the Software, except to the extent these restrictions are permitted by Laws and then only upon advance notice to Assistiv; (c) copy, modify, create derivative works of or remove proprietary notices from the Service or any element of the Software; (d) access (or allow a third party to access) the Service in order to benchmark, or monitor the availability, security, performance, or functionality of the Service, for any competitive purposes without Assistiv’s express, prior, written consent; (e) use the Service in a manner that Assistiv reasonably believes poses a threat to the security of Assistiv-controlled computer systems; (f) “frame” or “mirror” any content forming part of the Service; or (g) use the Service to conduct any fraudulent, malicious (including the introduction of any Virus into the Service), or illegal activities (each (a) through (g), a “Restriction”).

2.3. Trials and Betas.

Assistiv may offer optional Trials and Betas. Use of Trials and Betas is permitted only for Customer’s internal evaluation during the period designated by Assistiv on the Order Form (or if not designated or no Order Form is in place, 30 days). Either party may terminate Customer’s use of Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features never released. Notwithstanding anything else in this Agreement, Assistiv offers Trials and Betas AS-IS, with no warranty or support of any kind, and Assistiv’s liability with respect to all Trials and Betas will not exceed One-Thousand US Dollars (USD $1,000).

2.4. Users.

The Service is available to Users to whom Customer grants access to the Service under Customer’s account as more fully described in the Order Form. Customer is responsible for provisioning and managing its User accounts, for its Users’ actions through the Service and for their compliance with this Agreement. Customer and its Users are responsible to keep their login credentials secure and confidential and will promptly notify Assistiv upon learning of any compromise of User accounts or credentials.

2.5. Third-Party Products.

Customer may choose to enable integrations or exchange Customer Data with third-party services, applications, code, hardware or products (“Third Party Products”). Customer’s use of Third-Party Products is governed by its agreement with the relevant provider, not this Agreement. Customer agrees that: (a) Assistiv makes no representations and disclaims all warranties, express or implied, regarding Third Party Products; (b) Assistiv is not responsible and shall have no liability for Third Party Products or the unavailability of Third Party Products; (c) Customer is solely responsible and liable for its use of Third Party Products; (d) Assistiv is authorized to share Customer Data with providers of the Third Party Products as required for the operation of the Third Party Products provided Assistiv is not responsible for any transmission, collection, disclosure, security, modification, use or deletion of Customer Data by or through Third Party Products or their providers; and (e) Assistiv has no obligation to support any integration(s) of Third Party Products with the Services and may cease any integrations of Third Party Products at any time, in Assistiv’s sole discretion.

2.6. Suspension of Service.

Assistiv may suspend Customer’s access to the Service and related services due to any Suspension Event, but will give Customer prior notice where practicable so that Customer may seek to resolve the issue and avoid suspension. Assistiv is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Laws. Once the Suspension Event is resolved, Assistiv will promptly restore Customer’s access to the Service in accordance with this Agreement.

3. Support.

If Customer experiences any errors, bugs, or other issues (together, “Error”) in its use of the Services, then Assistiv will use commercially reasonable efforts to respond as soon as possible in order to resolve Error or provide a suitable workaround. The fee for Support is included in the cost of the subscription set forth on the Order Form. Customer will send any Support requests to Assistiv via email (to: contact@assistivlabs.com), or by means of Assistiv’s chat technology within its website (located here: https://assistivlabs.com). Customer must report an Error in reasonable detail within 30 days after discovering the issue in the Service. If Assistiv fails to resolve the Error or provide a suitable workaround within 30 days of receipt of Customer’s report of the Error, Customer may terminate the Order Form that relates to the non-conforming Service, in which case Assistiv will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. These procedures are Customer’s exclusive remedy and Assistiv’s sole liability for breach of this Section 3. The fee for support is included in the cost of the subscription set forth on the Order Form.

4. Data License & Data Protection.

4.1. License to Use Customer Data.

1. The Service enables Customers to run parallel tests to determine compatibility of websites and applications with accessibility features, functionality and compliance measures (each, a “Parallel Test”). Customer Data transmitted during a Parallel Test is automatically deleted when a User ends an active Parallel Test session with the Service unless otherwise configured by Customer or its Users.

2. In connection with its use of the Service, Customer, including its Users, will transfer Customer Data to Assistiv. Assistiv uses Customer Data to provide the Service and to create Usage Data.

3. Customer grants Assistiv a limited license during the Term to use Customer Data as provided for in this Section 4.1 and in accordance with this Agreement and the DPA.

4.2. DPA.

Assistiv will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.

4.3. Security and Privacy.

Assistiv maintains industry-standard physical, technical, and administrative safeguards in order to protect Customer Data in accordance with the Assistiv’s Security Protocols.

4.4. Usage Data.

Assistiv may collect Usage Data and use it to operate, improve and support the Service and for other lawful business purposes, including benchmarking and reports. However, Assistiv will not disclose Usage Data externally unless it is: (a) de-identified so that it does not identify Customer, its Users, or any other person; and (b) aggregated with data across other customers.

5. Fees & Taxes.

5.1. Payment.

Customer will pay the fees described in the Order Form. Unless the Order Form states otherwise, all amounts are due within 30 days after the invoice date. Late payments are subject to a charge of 1.5% per month or the maximum amount allowed by Laws, whichever is less. All fees and expenses are non-refundable except as expressly set out in this Agreement.

5.2. Taxes.

Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Order Forms, whether domestic or foreign (“Taxes”), other than Assistiv’s income tax. Fees and expenses are exclusive of Taxes.

6. Warranties & Disclaimer.

6.1. Mutual Warranties.

Each party represents and warrants that it: (a) has the legal power and authority to enter into this Agreement; and (b) will comply with all Laws that apply to its performance under this Agreement.

6.2. Customer Representations and Warranties.

Customer represents and warrants it has all rights necessary to: (a) transfer Customer Data to Assistiv via the Service; and (b) grant the licensed and rights to Assistiv in and to Customer Data as specified in this Agreement. Customer is responsible for the content and accuracy of Customer Data.

6.3. Disclaimers.

WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 6, THE SERVICE, TRIAL AND BETAS ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. ASSISTIV AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. ASSISTIV DOES NOT WARRANT THAT THE SERVICE, TRIALS OR BETAS: (A) ARE ERROR-FREE; (B) WILL PERFORM UNINTERRUPTED; OR (C) WILL MEET CUSTOMER’S REQUIREMENTS.

7. Term and Termination.

7.1. Subscription Terms.

Each Subscription Term will last for an initial 12-month period unless the Order Form states otherwise. Each Subscription Term will renew for successive periods unless: (a) the parties agree on different renewal terms on the Order Form; (b) either party notifies the other of non-renewal at least 30 days prior to the end of the current Subscription Term; or (c) Customer cancels their Subscription Term through the Services interface.

7.2. Term of Agreement.

This Agreement starts on the Effective Date and continues until the end of all Subscription Terms, unless sooner terminated in accordance with its terms (“Term”). If no Order Form and its Subscription Term is in effect, either party may terminate this Agreement for any or no reason with notice to the other party.

7.3. Termination.

Either party may terminate this Agreement (including all Order Forms) if the other party: (a) fails to cure a material breach of this Agreement within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 120 days.

7.4. Effect of Termination.

Customer’s right to use the Service and Software will cease upon any termination or expiration of this Agreement subject to this Section 7. If Customer terminates this Agreement in accordance with Section 7.3, Assistiv will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Term as of the date of such termination. Upon any termination or expiration of this Agreement, within 60 days of Customer’s written request, Assistiv will delete Customer Data from the Service and within its control, if any, and each party will delete any Confidential Information of the other in its possession or control. A party may retain Customer Data or Confidential Information in accordance with its standard backup or record retention policies, or as required by Laws, subject to Section 8 (Confidentiality).

7.5. Survival.

The following Sections will survive expiration or termination of this Agreement: 8 (Confidentiality), 9 (Ownership & Intellectual Property), 10 (Indemnification), 11 (Limitation of Liability) and 12 (Miscellaneous) as applicable.

8. Confidentiality.

8.1. Use and Protection.

As recipient, each party will: (a) use Confidential Information only to fulfill its obligations and exercise its rights under this Agreement; (b) not disclose Confidential Information to third parties without the discloser’s prior approval, except as permitted in this Agreement; and (c) protect Confidential Information using at least the same precautions recipient uses for its own similar information and no less than a reasonable standard of care.

8.2. Permitted Disclosures.

The recipient may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided it remains responsible for their compliance and they are bound to confidentiality obligations no less protective than this Section 8.

8.3. Exclusions.

The confidentiality obligations herein do not apply to information that the recipient can document: (a) is or becomes public knowledge through no fault of the recipient; (b) it rightfully knew or possessed, without confidentiality restrictions, prior to receipt from the discloser; (c) it rightfully received from a third party without confidentiality restrictions; or (d) it independently developed without using or referencing Confidential Information.

8.4. Remedies.

Breach of this Section 8 may cause substantial harm for which monetary damages are an insufficient remedy. Upon a breach of this Section 8, the discloser may seek appropriate equitable relief, including an injunction, in addition to other remedies.

8.5. Required Disclosures.

The recipient may disclose Confidential Information (including Customer Data) to the extent required by Laws. If permitted by Laws, the recipient will give the discloser reasonable advance notice of the required disclosure and reasonably cooperate, at the discloser’s expense, to obtain confidential treatment for the Confidential Information.

9. Ownership & Intellectual Property.

9.1. Assistiv Property.

As between the parties, Assistiv owns and retains all right, title, and interest in and to the Service, Software and Feedback. Except for the limited license granted to Customer in Section 1, Assistiv does not by means of this Agreement or otherwise transfer any other rights to Customer. For clarity, the Software and access to the Service are licensed, not sold, and Customer acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Service or the Software. The Service is offered as an on-line, hosted solution, and Customer has no right to obtain a copy of the Service itself.

9.2. Customer Property.

As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data. Except for the licenses granted to Assistiv in Section 4.1, Customer does not by means of this Agreement or otherwise transfer any other rights to Assistiv.

9.3. Reserved Rights.

Neither party grants the other any rights or licenses not expressly set out in this Agreement.

9.4. Feedback.

If Customer gives Assistiv feedback regarding improvement or operation of the Service or Software, Assistiv may use the feedback without restriction or obligation. All feedback is provided “AS IS” and Assistiv will not publicly identify Customer as the source of feedback without Customer’s permission.

10. Indemnification.

10.1. Indemnification by Assistiv.

Assistiv will defend Customer, and its Affiliates, against any claim, demand, suit or proceeding made or brought against Customer by a third party, and will indemnify Customer from any damages, reasonable attorney fees and costs, finally awarded to the third party claimant by a court of competent jurisdiction, or for any settlement approved in writing signed by an authorized officer of Assistiv, alleging the Service infringes or misappropriates such third party’s United States or European intellectual property rights.

If Assistiv becomes, or in Assistiv’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim, Assistiv may, at its option and expense: (a) modify the Service so that they are no longer claimed to infringe or misappropriate; (b) obtain a license for Customer’s continued use of the Service in accordance with this Agreement; or (c) terminate Customer’s subscription(s) for the Service upon 30 days’ written notice and refund Customer a pro-rata portion of any prepaid fees covering the remainder of the Subscription Term of the terminated Services.

The above defense and indemnification obligations do not apply if a claim against Customer arises from: (i) any unauthorized use, reproduction, or distribution of the Service or Assistiv’s intellectual property rights by Customer which is the subject of the claim; or (ii) any unauthorized combination of, or modification to, the Service or Assistiv’s intellectual property rights, other than as expressly approved by Assistiv that causes the underlying claim where such claim would have not occurred but for such unauthorized act.

10.2. Indemnification by Customer.

Customer will defend Assistiv, and its Affiliates, against any claim, demand, suit or proceeding made or brought against Assistiv by a third party, and will indemnify Assistiv from any damages, reasonable attorney fees and costs, finally awarded to the third party claimant by a court of competent jurisdiction, or for any settlement approved in writing signed by an authorized officer of Customer, arising from: (a) Customer’s use of the Service in violation of the Agreement; or (b) for any breach of Section 2.2 (Restrictions) or Section 6.2 (Customer Representations & Warranties). The above defense and indemnification obligations do not apply if a claim against Assistiv arises from Assistiv’s breach of the license grant to Customer Data set forth in Section 4.1.

10.3. Indemnification Process.

The indemnified parties will: (a) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (b) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties’ prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (c) provide the indemnifying party with reasonable cooperation, at the indemnified parties’ expense, in connection with the defense and settlement of the claim.

10.4. Sole and Exclusive Remedy.

This Section 10 sets forth the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the third-party claims described herein.

11. Limitation of Liability.

11.1. Disclaimer of Consequential and Related Damages.

IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

11.2. Limitation of Liability.

EXCEPT FOR (A) CUSTOMER’S BREACH OF SECTION 2.2 (RESTRICTIONS), (B) EACH PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), (C) EITHER PARTY’S BREACH OF CONFIDENTIALITY (BUT NOT RELATING TO ANY LIABILITY ASSOCIATED WITH ASSISTIV’S SECURITY OBLIGATIONS WITH RESPECT TO CUSTOMER DATA WHICH REMAINS SUBJECT TO THE EXCLUDED CLAIMS CAP), OR (D) FOR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF A PARTY (INCLUDING ITS AFFILIATES) UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER (AND ITS AFFILIATES) FOR USE OF THE SERVICE IN THE TWELVE MONTHS PRIOR TO THE CLAIM GIVING RISE TO SUCH LIABILITY.

11.3. Excluded Claims Cap.

“Excluded Claims” means any claim and/or liability associated with any breach by Assistiv of Sections 4.2 (DPA), and 4.3 (Security & Privacy), including for clarity with respect to any claim of liability associated with the DPA or the Security Protocols. ASSISTIV’S TOTAL, CUMULATIVE LIABILITY FOR ALL EXCLUDED CLAIMS WILL NOT EXCEED THE GREATER OF (A) $200,000 OR (B) THREE (3) TIMES THE TOTAL AMOUNT OF FEES PAID FOR USE OF THE SERVICE BY CUSTOMER TO ASSISTIV UNDER THIS AGREEMENT.

11.4. No Limit by Law.

THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO THE EXTENT ANY SUCH LIMITATION IS PROHIBITED BY ANY LAWS.

12. Miscellaneous.

(a) Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

(b) Governing Law and Courts. This Agreement is governed by the laws of Washington without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in Klickitat County, Washington.

(c) Notices. Except as set out in this Agreement, notices, requests and approvals under this Agreement must be in writing to the addresses on the Order Form and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); (c) one day after dispatch if by a commercial overnight delivery; or (d) upon delivery if by email. Either party may update its address with notice to the other. Assistiv may also send operational notices through the Service.

(d) Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Excluding Order Forms, terms in business forms, purchase orders or quotes used by either party will not amend or modify this Agreement; any such documents are for administrative purposes only.

(e) Order of Precedence. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and/or the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA.

(f) No Waivers and Severability. Failure to exercise any right under this Agreement will not constitute a waiver. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

(g) Force Majeure. Neither party is liable for a delay or failure to perform this Agreement due to a Force Majeure. If a Force Majeure materially adversely affects the Service for 15 or more consecutive days, either party may terminate the affected Order Form(s) upon notice to the other and Assistiv will refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. However, this Section does not limit Customer’s obligations to pay fees owed.

(h) Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

(i) No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

(j) Export Laws. Each party: (a) will comply with all export and import Laws in performing this Agreement; and (b) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a “terrorist supporting” country. Customer will not submit to the Service any data controlled under the U.S. International Traffic in Arms Regulations.

(k) Government Rights. To the extent applicable, the Service is “commercial computer software” or a “commercial item” for purposes of FAR 12.212 for and DFARS 227.7202. Use, reproduction, release, modification, disclosure or transfer of the Service is governed solely by the terms of this Agreement, and all other use is prohibited.

13. Definitions.

(a) “Affiliate” means an entity controlled, controlling or under common control with a party, where control means at least 50% ownership or power to direct an entity’s management.

(b) “Confidential Information” means information disclosed by or on behalf of one party (as discloser) to the other party (as recipient) under this Agreement, in any form, which: (a) the discloser identifies to recipient as “confidential” or “proprietary;” or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Assistiv’s Confidential Information includes technical or performance information about the Service and the Software, and Customer’s Confidential Information includes Customer Data. Information on an Order Form is each party’s Confidential Information.

(c) “Customer Data” means any data, content or materials that Customer (including its Users) submits to Assistiv via the Service, or via Third-Party Products, which may consist of, but is not limited to, third-party websites and their information, User login information and personal data such as names, e-mail addresses and phone numbers.

(d) “Documentation” means the written or online user manuals, help files, specification sheets, or other documentation regarding the Service made available to Customer by Assistiv.

(e) “DPA” means the Data Processing Agreement available at: https://assistivlabs.com/dpa.

(f) “Force Majeure” means an event beyond a party’s reasonable control such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party Internet or utility failure, refusal of government license or natural disaster.

(g) “Laws” means all applicable laws, regulations, rules, court orders or other binding requirements of a government authority that apply to a party.

(h) “Order Form” means: (i) each order document executed in writing between the parties for the purchase of a subscription to the Service; and/or (ii) the purchase of a subscription to the Service through the Service (e.g., by means of the Service interface).

(i) “Security Protocols” means Assistiv security protocols it adheres to in the provisions of the Service which are located here: https://assistivlabs.com/security.

(j) “Service” means Assistiv’s proprietary cloud service identified in an Order Form and as modified from time to time by Assistiv. The Service includes the Software and Documentation but not Third-Party Products.

(k) “Software” means the software that Assistiv develops and maintains in order to provide the Service, and all modifications, updates, upgrades thereto and derivative works thereof.

(l) “Subscription Term” means the length of the subscription for Customer’s use of the Service identified in an Order Form.

(m) “Suspension Event” means: (a) Customer’s failure to pay within the period specified in Section 5.1; and/or (b) Customer’s breach of any Restriction.

(n) “Trials and Betas” mean access to the Service (or Service features) on a free, trial, beta or early access basis.

(o) “Usage Data” means Assistiv’s technical logs and aggregated and anonymized data and information and learnings derived from Customer Data related to Customer’s use of the Service used by Assistiv for internal business purposes including to provide, develop and improve the Service. Usage Data is not Customer Data itself and does not consist of Personal Data (as defined in the DPA).

(p) “User” means anyone that Customer allows to use its accounts for the Service, who may include: (a) employees, advisors and contractors of Customer and its Affiliates; and (b) others if permitted in this Agreement, the Documentation or an Order Form.

(q) “Virus” means any software virus, malicious code or similar harmful materials.