TERMS OF SERVICE
01.06.2025
These Terms of Service (including Annexes and Appendices hereto, “Terms“) is made between you (“Customer” or “you“) and Adapty Tech Inc., 2093 Philadelphia Pike #9181 Claymont, DE 19703, or other legal entity identified on the Order Form (“ADAPTY“, “we”, “us”) (each a “Party“, together, the “Parties“) and governs Customer’s use of the FunnelFox software (including upgrades thereto and any related content, application programming interface (hereinafter – “API”), software development kits, documentation, and software tools) available at https://funnelfox.com/ (hereinafter – “FunnelFox Software”) and the products, services, and features we provided by us to you (collectively, the “Service”).
These Terms set out the basis on which ADAPTY provides you with the Services and on which you may use them. Please note that (1) our Privacy Policy which can be found on [https://funnelfox.com/] (hereinafter referred to as the “Privacy Policy”) and (2) Data Processing Agreement available at [https://funnelfox.com/] (hereinafter referred to as the “Data Processing Agreement”) form an integral part of these Terms.
By assent to these Terms, you agree to accept and to be bound by (1) these Terms, (2) the Privacy Policy, and (3) Data Processing Agreement at all time. If you do not agree with one of these, please do not use our Services.
As pertains to the Service,
(1) the “Effective Date” of the Terms is the earlier of the date of (a) clicking the respective button or checkbox at the time you register an account or by creating an account; or (b) by accessing or using FunnelFox Software in the free trial offered by us; or (c) the effective date of the first Order Form between you and ADAPTY referencing these Terms.
(2) the “Term” of the Terms shall be as of the Effective Date until you or we terminate your account and/or the expiration or termination of the last outstanding Order Form. “Order Form” means the ADAPTY ordering document governed by the Terms that is signed by ADAPTY and you and specifies the products or offerings procured by you. For the avoidance of doubt, any Order Form is an integral part of the Terms.
FOR THE AVOIDANCE OF DOUBT, WE MAY PROVIDE SEPARATELY OTHER SERVICES NOT MENTIONED HEREINAFTER (INCLUDING, BUT NOT LIMITED TO, ANY CONSULTING AGREEMENTS, GROWTH PRODUCT MANAGEMENT AGREEMENTS, AND OTHERS) (“CUSTOMIZED SERVICES”) AS WELL AS ANY SOFTWARE PRODUCTS THAT COULD BE A PART OF FUNNELFOX SOFTWARE AND MAY IMPOSE DIFFERENT PRICING POLICIES FOR THESE CUSTOMIZED SERVICES AND/OR SOFTWARE PRODUCTS. THESE CUSTOMIZED SERVICES AND SOFTWARE PRODUCTS ARE SUBJECT TO THESE TERMS AND ANY SEPARATE AGREEMENT AND/OR ORDER FORMS.
IF YOU ARE USING OR ACCESSING THE SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO AND SHALL BE LIABLE TO ADAPTY FOR ANY VIOLATIONS UNDER THE TERMS BY YOU OR SUCH ENTITY. THE RIGHTS GRANTED UNDER THESE TERMS ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
WE RESERVE THE RIGHT TO PROVIDE FREE TRIAL ACCESS TO THE FUNNELFOX SOFTWARE FOR ANY PERIOD AND ON ANY TERMS AS WE MAY DETERMINE APPLICABLE (“FREE TRIAL”). WE ARE ENTITLE TO REMOVE OR CANCEL THE FREE TRIAL AT ANY TIME FOR ANY REASON FROM ANY CUSTOMER.
1. LICENSE & RESTRICTIONS
1.1. From the moment of acceptance of these Terms and signature of the corresponding Order Form (if applicable) and for the Term ADAPTY grants to Customer a non-sublicensable, non-transferable, non-exclusive, non-assignable and revocable right to access and use the Services and FunnelFox Software as part of the Services in accordance with the Terms, and solely for Customer’s internal business purposes. Customer will not be provided with and shall have no right to any software code.
The Services may include features that work with Customer’s or a third party’s web-based, mobile, or other software application that is made available by Customer or its Authorized Users ("Third-party Applications"). To use these features, the Customer or its Authorized Users might need to obtain access to these Third-party Applications from their providers and grant us access to their accounts on these Third-party Applications.
ADAPTY reserves the right to suspend Customer’s access to the Services for scheduled maintenance (with prior notice) or emergency maintenance (with or without prior notice). We reserve the right to modify the Service, introduce new features, discontinue the Service or its features, or impose usage limits at any time without prior notice. Additionally, we may temporarily or permanently terminate, downgrade, suspend, or restrict your access to the Service without prior notice or liability for any reason, including if we determine that you have violated any terms of these Terms.
The Customer is responsible for Authorized Users’ use of the Services in accordance with the Terms. “Authorized Users” means the Customer and their respective employees, contractors, consultants or other legal representatives registered in FunnelFox Software (through customized link provided to the Customer by ADAPTY) with their contact e-mails that are used for communication with ADAPTY.
1.2. Among other things, you and Authorized Users agree not to do any of the following (directly or indirectly):
to provide access to the Services to any third party (except Authorized Users) or otherwise permit a third party (except Authorized Users) to examine, use or benefit from the Services;
to copy, modify, or reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or the FunnelFox Software; modify, translate, display, republish, or create derivative works based on the Services or FunnelFox Software;
to use the Services in breach of any applicable laws, regulations, embargoes, restrictive measures;
access, store, or transmit any viruses, spam, or duplicative messages, or any material that is unlawful or harmful;
to use the Services so as to: (i) try to gain unauthorized access to or disrupt any service, device, data, account or network, (ii) send or store any content that is unlawful, abusive, or obscene, or (iii) send, store, or use any content in a manner which infringes ADAPTY’s or any third-party Intellectual Property Rights. For the purpose of these Terms “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
to sell, rent out, lease, license, distribute, market, exploit the Services or any of their parts commercially;
to create, use and/or distribute automated or macro-command computer programs, robots, bots or other copying programs and software applications and/or use of FunnelFox Software mirror sites;
to use false information, use another user's account, assign someone else's identity, or provide false information about other individuals and legal entities within or during the use of the Services;
attempt to obtain an access password, account information or other information from any user, and/or sell, rent, share, provide for use and/or otherwise transfer to third parties the right to use your account and/or the ability to access it and/or otherwise provide third parties with the opportunity get benefits using your account;
not to comply with the requirements of ADAPTY’s representatives and/or impersonate an employee or representative of ADAPTY or affiliated companies, partners and/or agents of ADAPTY;
to remove, alter, disable or circumvent any copyright and trademark notice or other author and manufacturer information, notices or labels contained on or within the Services.
1.3. The rights granted under these Terms apply only to the Customer entity that registers an account and/or enters into the applicable Order Form. You may not extend your rights in relation to your account and/or under any Order Form to your affiliates unless otherwise agreed in the Order Form.
1.4. Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”).
2. CUSTOMER’S CONTENT AND FEEDBACK
2.1. To the fullest extent allowed by law, you agree to take full responsibility for any data, applications, files, information, or materials you input into the FunnelFox Software by or on behalf of the Customer (hereinafter – “Customer Content”) while using the Services. Additionally, you agree not to use the Services to submit any Customer's Content that violates these Terms including but not limited to violation of any Intellectual Property Rights.
2.2. You retain ownership of your Customer's Content. However, you are solely responsible for any of your Customer's Content that may be lost or become unrecoverable through your use of the Services. We are not obligated to store, maintain, or provide you with a copy of your Customer's Content.
2.3. By providing Customer’s Content to the Services, you grant ADAPTY a non-exclusive, royalty-free, transferable, sub-licensable, worldwide right and license to use, modify, reproduce, display your Customer’s Content on the Service for the limited purposes of operating and providing the Service to you.
2.4. OUR POLICY REGARDING SPECIFIC TYPES OF CUSTOMER CONTENT (E.G., HEALTH INFORMATION, CHILD INFORMATION) IS SEPARATELY ADDRESSED IN THE PRIVACY POLICY.
2.5. Customer may from time to time provide ADAPTY suggestions or comments for enhancements or improvements, new features or functionality, or other feedback (“Feedback”) regarding the Services. ADAPTY will have full discretion to determine whether to proceed with the development of any requested enhancements, new features, or functionality. ADAPTY will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with us (or our affiliates) products and services. By sending your Feedback you grant ADAPTY a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit any Feedback provided to us without restriction or compensation to you.
3. OWNERSHIP RIGHTS
3.1. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NO PROPERTY RIGHTS OR OTHER PROPERTY RIGHTS TO THE SERVICES AS WELL AS FUNNELFOX SOFTWARE; YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL SUCH RIGHTS ARE AND WILL ALWAYS BE VESTED IN ADAPTY IN FURTHERANCE OF ITS INTERESTS. Except for the rights expressly licensed to you hereunder, all title, ownership rights and Intellectual Property Rights in and to the Services including FunnelFox Software (including, without limitation, all text, graphics, all messages or items of information and any other elements which are part of the FunnelFox Software individually or in combination) and any and all copies thereof are owned by us or its licensors.
3.2. You may not give, purchase, sell, trade, exchange, market, offer for sale, license, assign or otherwise transfer your rights, responsibilities or obligations under these Terms, whether in whole or in part, without the prior written consent of ADAPTY, as well as modify, create derivative works, commercialize, or otherwise exploit the FunnelFox Software unless subject to separate, express written terms provided by us permitting such conduct. Any attempt to do so shall be null and void.
3.3. The FunnelFox Software is safeguarded by a comprehensive framework of legal protections, including national and international laws, copyright treaties, and conventions. These protections ensure that the Intellectual Property Rights of the FunnelFox Software are upheld globally. ADAPTY, its affiliated companies, partners and licensors may enforce their rights in the event of any breach of these Terms.
3.4. The FunnelFox Software may contain certain licensed materials and, in that event, ADAPTY, its affiliated companies, partners and licensors have the right to enforce their rights in the event of any violation of these Terms. Any reproduction or representation of these licensed materials in any manner and for any reason is prohibited without ADAPTY prior permission and, if applicable, ADAPTY’s licensors and representatives. Except as expressly set forth in these Terms, all rights not granted hereunder to you are expressly reserved by ADAPTY.
4. FEES AND PAYMENT
4.1. Fees will be invoiced according to the then-current pricing available at [×] unless otherwise stated in the separate Order Form. The separate Order Form may require the payment of additional fees in the case of (i) exceeding the usage limitations of the FunnelFox Software, and/or (ii) exceeding the monthly tracked revenue threshold received by the usage of the FunnelFox Software, as both (i) and (ii) clauses may be defined in the separate Order Form signed between the Parties. For these tracking purposes Customer shall provide ADAPTY with complete and accurate billing and relevant information.
4.2. FOR AVOIDANCE OF DOUBT, WE RESERVE THE RIGHT TO DECLARE PAYMENT OF ADDITIONAL FEES NOT MENTIONED IN CLAUSE 4.1. ABOVE AS MAY BE DEFINED IN THE SEPARATE ORDER FORM SIGNED BETWEEN THE PARTIES.
4.3. All payment obligations are noncancelable, and all amounts paid are non-refundable.
4.4. All Fees are billed monthly (unless otherwise agreed in the separate Order Form) starting from 1) the date of the first payment, or 2) the Start Date (as this term may be specified in the separate Order Form), whichever is earlier (“Payment Due Date”). All payments shall be made in the currency indicated in the Order Form in full and cleared funds without any set-off, counterclaim, deduction, or withholding (except for any deduction or withholding required by law) on or within ten (10) business days after the Payment Due Date (unless otherwise agreed in the separate Order Form).
4.5. If payment has not been made under clause 4.4. above, then without limiting any other right or remedy available to ADAPTY, ADAPTY reserves the right to charge a late fee of 0.1% of the invoice amount per day (“Late Fee”), which in any case cannot exceed the amount indicated in the invoices for the previous two months. If the Customer has been invoiced for only one month, the amount of that invoice shall be doubled for the purposes of this clause 4.5. Prior to charging Late Fee, ADAPTY may but is not obliged to contact the Customer regarding the delinquency and verify receipt of the applicable invoice.
4.6. All sums payable under the Terms are exclusive of value-added tax (VAT) or any other direct, transactional, or local sales taxes, for which Customer shall be responsible.
4.7. If Customer believes that ADAPTY has billed Customer incorrectly, Customer must contact ADAPTY no later than five (5) days after receipt of invoice in order to receive an adjustment. Inquiries should be directed to ADAPTY’s contact email set forth in the applicable Order Form or on the website.
4.8. ADAPTY reserves the right to change the Fees or applicable charges and to institute new charges and fees. Updated fees shall be applicable to the existing Customer after the renewal of the current Term (if applicable). Notwithstanding the above, new charges and fees shall apply to the existing Customer if ADAPTY provides prior notice to the Customer at least thirty (30) calendar days before application of renewed charges and fees. If the existing Customer does not consent to the application of updated charges and fees, it may unilaterally terminate the Terms as of the date on which updated charges and fees become applicable to the existing Customer.
5. ACCOUNT
5.1. In order to use the Services, the Customer must register for an account through customized link provided to the Customer by ADAPTY. To create an account, the Customer will be required to provide certain information and the Customer will establish a username and a password. The Customer agrees to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. ADAPTY reserves the right to suspend or terminate Customer’s account if any information provided during the registration process or thereafter proves to be inaccurate, not up-to-date, or incomplete. The Customer is responsible for maintaining the security of the Equipment, its account, and passwords. Customer agrees not to disclose its password to any third party and to take sole responsibility for any activities or actions under its account, whether or not Customer has authorized such activities or actions. The Customer shall immediately notify ADAPTY of any unauthorized use of its account. Customer is responsible for all activity occurring under Customer’s account(s).
6. LIMITED WARRANTY AND DISCLAIMERS
6.1. CUSTOMER AGREES THAT ADAPTY HAS MADE NO EXPRESS WARRANTIES, ORAL OR WRITTEN, TO CUSTOMER REGARDING THE SERVICES OR RESULTS FROM USING THE SERVICES AND THAT THE SERVICES ARE BEING PROVIDED TO THE CUSTOMER ‘AS IS’ WITHOUT WARRANTY OF ANY KIND. ADAPTY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION ADAPTY DOES NOT WARRANT: (a) THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (b) THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS; (c) THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE; (d) THAT THE SERVICES WILL ALWAYS BE AVAILABLE, UPDATED OR UPHELD BY ADAPTY.
6.2. ADAPTY is not responsible for any delays, delivery failures, or other loss or damage resulting from the transfer of data over communications networks and facilities that are not owned or directly controlled by ADAPTY. The Customer acknowledges that the FunnelFox Software may be subject to problems inherent in the use of such communications facilities.
6.3. In the event of any loss or damage to Customer Content, Customer’s sole and exclusive remedy shall be for ADAPTY to use reasonable commercial endeavors to restore the lost or damaged Customer Content from the latest backup.
6.4. ADAPTY can take additional obligations in relation to Services in case a service level agreement (as separate provisions within the Order Form) has been executed between the Parties.
7. INDEMNITY
7.1. Subject to clause 7.2., ADAPTY, at its sole expense, agrees to defend Customer against any third party claim that the FunnelFox Software directly infringes a third party’s Intellectual Property Right (“Infringement Claim”), and indemnify Customer from the resulting direct costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement; provided that: (a) Customer promptly notifies ADAPTY in writing of the Infringement Claim; (b) ADAPTY has sole control of the defense and all related settlement negotiations; (c) Customer provides ADAPTY with the information, assistance and authority to enable ADAPTY to perform its obligations under this Section 7; and (d) Customer makes no admission of liability and does not compromise the ability of ADAPTY to defend the claim. The Customer may not settle or compromise any Infringement Claim without the prior written consent of ADAPTY.
7.2. ADAPTY shall have no liability or obligations for an Infringement Claim pursuant to this Section 7 to the extent that it results from: (a) modifications to the FunnelFox Software made by a party other than ADAPTY; (b) the combination, operation or use of the FunnelFox Software with non-ADAPTY products and services; (c) Customer’s use of the FunnelFox Software; or (d) use of third-party software, technology or any derivatives or other adaptations thereof not embedded by ADAPTY into the FunnelFox Software. This Section 7 sets out Customer’s sole and exclusive remedies and ADAPTY’s entire liability with respect to claims subject to indemnification under this Section 7, including claims for infringement or violation of third-party Intellectual Property Rights by the FunnelFox Software.
7.3. The Customer agrees to indemnify, hold harmless and defend ADAPTY, at the Customer’s expense, from any and all third-party claims, actions, proceedings, and suits brought against ADAPTY or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, court costs, reasonable attorneys’ fees and other litigation expenses) incurred by ADAPTY or any of its officers, directors, employees, agents or affiliates, arising out of, or relating to (i) the Customer’s breach of the Terms including license use limitations under Section 1; (ii) the Customer’s breach of sanctions and export controls provision under clause 12.11, (iii) the Customer’s use of the Services in violation of applicable laws, rules or regulations and the Terms; or (iv) Customer Content .
8. LIMITATION OF LIABILITY AND DAMAGES
8.1. SUBJECT TO CLAUSES 8.2, 8.3, AND 8.4, EACH PARTY’S TOTAL AGGREGATE LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), BREACH OF STATUTORY DUTY, STRICT LIABILITY, OR OTHER THEORY, WITH RESPECT TO ALL SUBJECT MATTER RELATING TO OR ARISING OUT OF THE TERMS SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND PAYABLE TO ADAPTY (WHETHER OR NOT INVOICED) UNDER THE TERMS IN THE YEAR PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
8.2. SUBJECT TO SECTIONS 8.3 AND 8.4, NEITHER PARTY WILL BE LIABLE FOR ANY: (A) INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; (B) LOSS OF REVENUES; (C) LOSS OF PROFITS; (D) LOSS OR INACCURACY OF DATA.
8.3. NOTHING IN THE TERMS SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
8.4. IF ANY CLAIM ARISES BY REASON OF A LIABILITY THAT IS FUTURE, CONTINGENT, AND/OR UNQUANTIFIABLE, NEITHER PARTY SHALL NOT BE UNDER ANY OBLIGATION TO MAKE ANY PAYMENT FOR SUCH CLAIM UNTIL SUCH TIME AS THAT LIABILITY BECOMES AN ACTUAL LIABILITY OR IS CAPABLE OF BEING QUANTIFIED. NEITHER PARTY SHALL NOT BE ENTITLED TO REIMBURSEMENT OR RESTITUTION MORE THAN ONCE IN RESPECT OF ANY PARTICULAR LOSS OR DAMAGE SUFFERED IN RESPECT OF THE SAME CLAIM.
9. CONFIDENTIALITY AND PROPRIETARY INFORMATION
9.1. A Party (the “Receiving Party”) may receive Confidential Information of the other Party (the “Disclosing Party”) and the Receiving Party shall keep all such Confidential Information confidential and protect it by using the same level of care and discretion that the Receiving Party uses with respect to its own confidential information, which will be in no case less than reasonable care and discretion.
9.2. The Receiving Party shall not use the Confidential Information for its own purposes other than as provided in the Terms nor disclose Confidential Information to any person other than such Party’s Authorized Users, or ADAPTY’s subprocessors and subcontractors who have a need to know that Confidential Information to ensure and assist in the performance of our obligations under the Terms provided that the Receiving Party remains responsible for the confidentiality of the information.
9.3. Without limiting the foregoing, either Party may disclose Confidential Information to a government authority if that disclosure is: (a) required by law or (b) necessary to exercise its rights or perform its obligations under and in accordance with the Terms.
9.4. “Confidential Information” means information of a confidential or proprietary nature (including, but not limited to, trade secrets and information of commercial value), including without limitation, pricing, software, source code and underlying technical or business information, client’s information (including, but not limited to, client buying habits or cycles, payment history, client’s contacts name, address, email address, telephone number, health state or any other information not generally available to the public), which relates to the Disclosing Party that is disclosed or provided to the Receiving Party, either directly or indirectly, in writing, orally or by inspection or by other forms, by or on behalf of the Disclosing Party (or by any of its officers, directors, employees, agents or affiliates) pursuant to the Terms; provided, however, that Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is input into the FunnelFox Software or (v) is independently developed by the Receiving Party.
9.5. The Parties hereto agree that the failure of any Confidential Information to be labeled, identified or otherwise marked as confidential or proprietary information shall not affect its status as Confidential Information.
9.6. This Section shall apply during the Term, and for three (3) years after the Term termination or expiry, while the Receiving Party shall comply (and shall procure that its officers, directors, employees, agents or affiliates comply) with the foregoing obligations until the information at issue is no longer Confidential Information as described herein.
9.7. The Parties have the right to enter into a separate non-disclosure agreement. In case of conflict between such non-disclosure agreement and this Section, the non-disclosure agreement shall prevail.
10. TERMINATION AND SUSPENSION
10.1. Without affecting any other right or remedy available to it, either Party may terminate the Terms with immediate effect by giving written notice to the other Party if the other Party breaches a material obligation under the Terms and/or Order Forms that has not been cured (if curable) within twenty (20) calendar days of the effective date of such written notice requiring the remedy of such breach (the “Correction Period”)or either Party (a) announces cessation of its entire business or becomes insolvent; (b) elects to dissolve and wind-up its business; (c) makes a general assignment for the benefit of creditors; or (d) petitions for or appoints (or a third party causes to be appointed for itself) a receiver, custodian or trustee to take possession of all or substantially all of that Party’s property.
10.2. For the avoidance of doubt, the Correction Period shall not apply to the Customer’s breach of any payment obligations (or any parts thereof). In the event of such a breach, the Correction Period shall be reduced to five (5) business days provided that all other terms of clause 10.1 above remain in effect.
10.3. ADAPTY may terminate or suspend Customer’s access to the Services, without prior notice or liability, at any time and for any reason, including if (a) Customer’s account is past due, or (b) Customer’s use of the Services breaches Section 1 or harms, unduly burdens or impairs performance of the Services without prejudice to ADAPTY’s other remedies in respect of the applicable breach.
10.4. Upon termination of the Terms, the rights granted under Section 1 will terminate and Customer shall promptly destroy all ADAPTY’s Confidential Information and ADAPTY will remove Customer’s access to the Services. All Order Forms sha be considered terminated in case of termination of the Terms.
10.5. If the Terms are terminated by Customer with no fault of ADAPTY or due to a material breach by Customer, then Customer shall pay in full all outstanding fees (including any additional fees) as defined in clause 4.1 payable through the remainder of the term of each outstanding Order Form or if Customer has prepaid any fees, then those fees are nonrefundable. If the Terms are terminated by ADAPTY with no fault of the Customer or due to a material breach by ADAPTY, then ADAPTY shall refund Customer on a pro-rata basis any prepaid fees.
10.6. Termination or expiry of the Terms shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Terms which existed at or before the date of termination or expiry. ADAPTY shall be under no liability in respect of any claim and any such claim shall be wholly barred and unenforceable unless notice of a such claim shall have been served upon ADAPTY by within no later than the first anniversary of the Terms termination, provided that the liability of ADAPTY against which any claim specified in such notice shall have been made shall absolutely determine and cease (if such claim has not been previously satisfied, settled or withdrawn) if legal proceedings in respect of the claim shall not have been commenced by being both properly issued and validly served on ADAPTY within 6 months after giving of such notice.
11. GOVERNING LAW AND JURISDICTION
11.1. The Terms shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions.
11.2. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The International Expedited Procedures of the International Centre for Dispute Resolution shall apply regardless of the amount in dispute. The place of arbitration shall be Dover, Delaware, USA, however, the Parties agree that in case an oral hearing is necessary, it shall be conducted via video, audio, or other electronic means. The language of the arbitration shall be English. Except as may be required by law, neither a party nor its representatives may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.
12. GENERAL
12.1. Entire agreement. The Terms constitute the entire agreement and understanding between the Parties with respect to the subject matter of the Terms and the Services, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written relating to that subject matter. To the extent there is any conflict or inconsistency between the Terms and any Order Form signed by both Parties, the Order Form shall prevail to the extent of any such conflict or inconsistency.
12.2. Modifications. ADAPTY may change these Terms from time to time at its discretion. The date on which the Terms were last modified will be updated at the top of these Terms. ADAPTY will provide Customer with reasonable notice prior to material amendments or modifications taking effect, either by emailing the email address or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Services after the effective date of the revised Terms, such access and use will constitute Customer’s acceptance of the revised Terms beginning at the next renewal period or, if Customer enters into a new Order Form with ADAPTY, as of the date of execution of such Order Form.
12.3. Use of Customer’s logo in marketing. By using the Services, Customer gives ADAPTY the right to use Customer’s company name and logo, including registered as a trademark, in any of ADAPTY’s marketing materials and on the website, and agrees to participate in a case study that may be published on ADAPTY’s website and/or in any marketing materials unless otherwise agreed by the Parties.
12.4. Waiver. Any waiver of any provision of the Terms must be in writing and will not be deemed a waiver of any other provision.
12.5. Third-party rights. The Terms does not confer any right or benefit on any person who is not a Party to it and no one other than a Party to the Terms, their successors, and permitted assignees shall have any right to enforce any of the terms of the Terms, except where expressly provided otherwise.
12.6. Assignment. The Customer may not assign the Terms without ADAPTY’s prior written consent. ADAPTY may freely assign its rights under the Terms. These Terms are binding upon, and inure to the benefit of the Parties and their respective successors and assigns.
12.7. Severability. Each provision of the Terms shall be considered severable such that if any provision or clause conflicts with any existing or future law or regulation, or is held to be illegal, unenforceable, or invalid by a court, the other provisions of the Terms shall be limited or modified to the minimum extent necessary to make it valid, legal and enforceable and so that the Terms shall otherwise remain in effect.
12.8. Notice. Either Party will deliver all notices, approvals, or other communications required or permitted under the Terms, including those regarding modifications to the Terms, via e-mail (in each case to the email address stated in the Order Form). For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted. ADAPTY may also deliver all notices by posting to the website or Customer’s account.
12.9. Force majeure. A delay by either Party in performing its obligations will not be a breach of the Terms if caused by an event beyond the reasonable control of such Party. The affected Party will notify the other Party of such an event and resume performance as soon as possible. If force majeure lasts more than thirty (30) days, either Party is entitled to terminate these Terms giving a written notice to the other Party via email. For the avoidance of doubt, these Terms shall be deemed terminated from the receipt of this notice by the other Party.
12.10. Independent contractors. Nothing in the Terms is intended to create a joint venture, partnership, agency, or employment relationship between the Parties.
12.11. Sanctions and export controls. Customer must not access, use, import, or export the Software: (i) in or relating to any country or territory that is the subject or target of comprehensive trade or economic sanctions imposed by the U.S. government (currently, Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, and the Donetsk People’s Republic or Luhansk People’s Republic); (ii) for the benefit or on behalf of any person listed in any Sanctions-related list of designated persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State (including OFAC’s List of Specially Designated Nationals and Blocked Persons), or any person owned 50 percent or more by such person; or (iii) otherwise in violation of any U.S. sanction, embargo, prohibition or restriction.