Terms of Service

1.     Definitions.  All capitalized terms used and not otherwise defined in the Agreement shall have the respective meanings ascribed to such terms in Section 13.  This Agreement includes any Order Form entered into by the Parties and any and all additional terms and conditions referenced within this Agreement or any Order Form, such as the Algoma Documentation and, if applicable, the Service Level Agreement.

2.     Services.

2.1     Access.  Subject to the terms and conditions of this Agreement, and provided Customer timely pays all fees due under this Agreement, Algoma will make the Services available to Customer, for Customer’s use solely as described below. 

2.2     Authorized Users; Credentials.  The Services may only be accessed by individuals authorized by Customer to access the Services (each, an “Authorized User”).  Customer shall be solely responsible for managing, verifying, and monitoring each Authorized User and ensuring that every Authorized User complies with this Agreement.   

3.     Customer Responsibilities.

3.1     Customer Data.  Customer is not permitted to send Personal Information to or through the Services.  As between Customer and Algoma, and their respective Affiliates, Customer is solely responsible and liable for the accuracy, completeness, validity, authorization for use (including transmission) and integrity of all Customer Data, regardless of form or format.  Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under this Agreement is lawful.  Algoma shall have no responsibility whatsoever to verify the completeness or accuracy of any Customer Data, to compare any Customer Data with any other records, information or data in Algoma’s custody or control or to audit or investigate the completeness or accuracy of Customer Data in any manner and for any purpose. The utility of the Services is dependent on the quality and quantity of Customer Data made available to Algoma.

3.2     Compliance.  Customer is solely responsible for compliance with all laws and regulations with respect to Customer’s use, and the use by Authorized Users, of the Services and their functionality.  Customer shall not use the Services in any manner that (a) is misleading, fraudulent or negligent or (b) infringes any third party’s rights.  Customer represents and warrants to Algoma that all Customer Data: (i) is owned by Customer or provided with the express consent from any applicable Authorized User, individual, or other third party holding any ownership rights (including intellectual property rights) over, or privacy rights in, such data; and (ii) does not violate the rights of any person or entity, including intellectual property rights and rights of publicity, privacy, or under applicable law. 

3.3     Certain Restrictions.  Customer shall not use the Services in whole or in part for any purpose except as expressly permitted under this Agreement.  Without limiting the foregoing, Customer (whether itself or through a third party) shall not, and Customer shall ensure that no Authorized User shall, (a) decompile, decode, disassemble, or otherwise reverse engineer the Services or any component thereof; (b) copy, in whole or in part, the Services or any component thereof other than for limited back-up purposes (if applicable) and provided that all original proprietary marks and legends are reproduced in the copy; (c) modify, enhance, create derivative works of, combine with other programs, or otherwise change the Services; (d) employ any scraping method; (e) develop or have developed any product or service using or based on any component of the Services; (f) sublicense, sell, rent, lease, transfer, transmit, distribute or otherwise make available the Services or any component thereof or provide service bureau or timeshare services using the Services or any component thereof.

4.     Ownership.

4.1     Services.  As between Algoma and Customer, title to, and ownership of the Services, including all patents, copyrights and other intellectual property rights applicable thereto and any improvements or derivative works thereof, shall at all times remain solely and exclusively with Algoma and its licensors. Nothing contained herein shall be construed as granting Customer any rights in or to the Services, other than the right to use the Services as expressly stated herein.  Algoma has the right to generate and use Usage Data and to improve its Services, including through the use of aggregated Customer Data, provided that Algoma must at all times keep Customer Data confidential in accordance with Section 10.

4.2     Customer Data.  As between Customer and Algoma, Customer shall retain title to and ownership of all Customer Data.  Customer hereby grants to Algoma and its relevant service providers a limited, nonexclusive, royalty-free, right and license, to access, store, reproduce, display, handle, perform, transmit, test, modify, process, combine with other data, and otherwise use Customer Data (a) as necessary or reasonably useful for performance of Algoma’s obligations and/or exercise of Algoma’s rights under this Agreement; and (b) as required by applicable law.

4.3     Feedback.  The Parties acknowledge and agree that Algoma may solicit and Customer may provide to Algoma suggestions, ideas, enhancement requests, feedback, recommendations, or other information relating to the Services (the “Feedback”).  Customer hereby grants to Algoma an irrevocable, perpetual, worldwide, royalty-free right and license to use the Feedback for any purpose.

5.     Fees; Expenses; Payment Terms.

5.1     Fees.  Customer shall pay Algoma the fees in accordance with the schedule set forth in the applicable Order Form. Unless otherwise set forth on an Order Form, all fees are payable up front on an annual basis; all fees are nonrefundable (except in the event of a termination of this Agreement due to Algoma’s uncured material breach, in which case a pro-rata refund of pre-paid annual subscription fees may be provided).  For fees based on Services usage, Customer hereby agrees to pay all such fees accrued through use of the Services, at the rates and on the terms as may be set forth in the Order Form or displayed within the Services from time to time.

5.2     Payment Terms.  Payment terms are described in Order Forms.  In the absence of any specific description that overrides this Section 5.2,  invoices are payable within thirty (30) days after the date of invoice. Late payments are subject to a 1.5% per month compounding interest finance charge, without limitation to Algoma’s other remedies.

5.3     Tax.  The payment obligations set forth in this Agreement are exclusive of all sales, use, value-added, privilege, excise or similar taxes or duties levied upon Customer.  Customer shall be solely responsible for paying any applicable taxes levied or based on its use of the Services provided under this Agreement, exclusive of taxes levied on Algoma’s income.  Algoma may, but is not obligated to, invoice Customer for any such taxes and remit any payments made on any such invoice directly to the appropriate taxing authorities.  Customer is responsible for obtaining and providing to Algoma any certificate of exemption or similar document required to exempt any transaction from sales, use or similar tax liability.  All amounts are quoted and payable in US dollars, unless otherwise noted, and are exclusive of taxes.

6.     Representations and Warranties; Disclaimers.

6.1     Mutual.  Each Party hereby represents and warrants to the other that: (a) it has all requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated hereby; and (b) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of such Party and do not conflict with or violate any agreement with any third party or with its organizational documents.

6.2     Customer.  Customer represents and warrants that it has the right to transmit or have transmitted the Customer Data to the Services, to permit the Customer Data to used by Algoma in each case as contemplated by this Agreement. 

6.3     Algoma.  Algoma represents and warrants to and for the benefit of Customer that the Services shall perform in all material respects in accordance with the Algoma Documentation.  Algoma’s sole obligation under this warranty, and Customer’s sole and exclusive remedy for any breach of this warranty, shall be for Algoma to use commercially reasonable efforts to repair or replace, at its option, the defective Services in response to Customer’s written report of nonconformity received by Algoma.

6.4      

6.5     Disclaimer of Warranties.  EXCEPT FOR THE WARRANTIES EXPLICITLY MADE BY ALGOMA IN THIS AGREEMENT, (i) ALGOMA AND ITS LICENSORS OR SERVICE PROVIDERS EXCLUDE AND DISCLAIM ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  ALGOMA PROVIDES THE SERVICES AND ALL OTHER PERFORMANCE HEREUNDER “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND EXCEPT AS EXPRESSLY STATED HEREIN, (ii) ALGOMA DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT IT WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER AND (iii) ALGOMA AND ITS LICENSORS OR SERVICE PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE PRODUCTS OR SERVICES OF THIRD PARTIES THAT ALGOMA MAY SUPPLY TO CUSTOMER FOR USE IN CONNECTION WITH THE SERVICES.

6.6     Additional Disclaimers.  Customer acknowledges and agrees that artificial intelligence is probabilistic in nature and that therefore Algoma cannot guarantee that the Services or their output will be complete or accurate. 

6.7     Third Party Materials.  Notwithstanding anything to the contrary in this Agreement:

(a)       To the extent Algoma provides access to any Third Party Materials, or includes any Third Party Materials as part of the Services, such Third Party Materials are provided on an “as is” basis.  Algoma does not make any representations or warranties, express or implied, including any warranties or conditions of merchantability or fitness for a particular purpose with respect to any Third Party Materials.

(b)       To the maximum extent permitted by applicable law, Algoma shall not have any liability for any direct, indirect, special, consequential or incidental damages arising from or in connection with the use or performance of any Third Party Materials, including penalties imposed by any government.  This limitation will apply even if any remedy fails of its essential purpose.

(c)        Algoma does not have any indemnification or support obligations with respect to Third Party Materials. 

6.8     Compliance with Law.  Each Party agrees in the performance of its duties hereunder, to comply with all applicable federal, state, and local laws and regulations as applicable to each.  To the extent Algoma believes any actual or pending change in law, regulation, or enforcement would materially change Algoma’s legal or commercial exposure with respect to this Agreement, Algoma may initiate a renegotiation of any relevant part of this Agreement with Customer; if Algoma and Customer cannot arrive at a negotiated solution within thirty (30) days after Algoma initiates such renegotiation, Algoma may terminate this Agreement for convenience without further liability (in which case Algoma shall return to Customer any pre-paid subscription fees for Services not yet rendered).

7.     Limitation of Liability.

7.1     CERTAIN DAMAGES.  IN NO EVENT SHALL ALGOMA OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR LICENSORS OR THIRD PARTY SERVICE PROVIDERS HAVE ANY LIABILITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE LIABILITY, LOSS OR DAMAGES INCURRED BY CUSTOMER, ANY CUSTOMER OF CUSTOMER OR ANY OTHER PERSON OR ENTITY CLAIMING BY OR THROUGH CUSTOMER, ARISING FROM OR OCCASIONED BY OR THROUGH THE USE BY CUSTOMER OR ANY END USER OF THE SERVICES, OR THE ACCESSIBILITY OR INACCESSIBILITY THERETO, WHETHER CLAIMED UNDER CONTRACT, TORT, OR ANY OTHER LEGAL THEORY EVEN IF ALGOMA OR ANY OF SUCH OTHER PERSONS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THESE DAMAGES.

7.2     AGGREGATE CAP.  EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 BELOW, THE MAXIMUM AGGREGATE LIABILITY OF ALGOMA AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS AND THIRD PARTY VENDORS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF SUCH CLAIMS, SHALL BE THE LESSER OF (i) THE ACTUAL DAMAGES SUSTAINED BY CUSTOMER WITH RESPECT TO SUCH CLAIMS OR (ii) THE FEES ACCRUED BY CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE LAST ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.

8.     Indemnification Obligations.

8.1     Customer Indemnification Obligations.  Customer agrees to defend, indemnify and hold harmless Algoma, and its Affiliates, licensors, and service providers, and all officers, directors, employees and successors and assigns thereof (“Algoma Indemnified Parties”) from and against all claims, demands, proceedings, suits and actions and all liabilities, losses, expenses and costs (including any reasonable legal fees and expenses relating to Algoma’s defense) arising from: (a) the alleged or actual use or misuse of the Services by Customer or its Authorized Users; (b) the unauthorized access or use of the Services or other systems of Algoma (including its Affiliates) by or through Customer (including any Authorized Users or their accounts); (c) Customer Data, Models (if applicable), or Customer Platforms (if applicable); or (d) any claim of infringement, misappropriation, or violation of any other proprietary right by any Customer Data, Model (if applicable), or Customer Platform (if applicable); provided, however, that Customer shall not be obligated to indemnify the Algoma Indemnified Parties to the extent that the damages result from a breach by Algoma Indemnified Parties of its obligations under this Agreement.

8.2     Algoma Indemnification Obligations.

(a)       Subject to the provisions of this Section 8.2(a) and the indemnification process set forth in Section 8.3, Algoma agrees to defend Customer and its Affiliates, successors, officers, directors, employees and assigns (“Customer Indemnified Parties”) from and against any action or proceeding brought by a third party against the Customer Indemnified Parties to the extent such action or proceeding results directly from a claim by such third party that  the Customer Indemnified Parties’ use of the Services in accordance with and as permitted under this Agreement infringes that third party’s registered patent or registered copyright, in each case enforceable in the United States (an “Infringement Claim”). Algoma will indemnify and hold harmless the Customer Indemnified Parties for those costs and damages (including reasonable attorneys’ fees, experts’ fees and court costs) (collectively, “Damages”) that a court fully and finally awards against the Customer Indemnified Parties in any such action or proceeding that are directly and specifically attributable to such indemnifiable claims defended by Algoma or those Damages agreed to in a monetary settlement of such action or proceeding reached by Algoma on the Customer Indemnified Parties’ behalf.  For clarity, Algoma has no obligation or liability with respect to any claim that arises with respect to Third Party Software.

(b)       In the event that the Services become or are likely to become the subject of an Infringement Claim, Algoma may (or, in the event of an injunction that prohibits Customer from using the Services, Algoma shall), at its option: (i) modify or replace the affected parts so the Services become non-infringing or (ii) if the foregoing cannot reasonably be accomplished, refund the fees pre-paid by the Customer to Algoma and terminate this Agreement without further liability.

(c)        Algoma shall have no obligation to indemnify any Customer Indemnified Parties with respect to any claim to the extent caused by a Customer Indemnified Party’s: (i) unauthorized modification of the Services; (ii) combination, operation or use of the Services with non-Algoma services, program(s) or data (including Third Party Materials); (iii) use of other than the latest unmodified release of the Services if such infringement could have been avoided by use of the latest unmodified release; (iv) use of the Services by any Customer Indemnified Party beyond the scope of the express rights and licenses granted in this Agreement; or (v) breach of this Agreement or violation of law.  Where an Infringement Claim arises with respect to third party products or services, Algoma’s sole obligation is to pass through to Customer any indemnity that may be available to Customer under the terms and conditions of the agreement between Algoma and such third party vendor.

8.3     Indemnification Process.  If either Party requests indemnification pursuant to Section 8 (“Requesting Party”), it shall give notice to the Party from which indemnification is requested (“Requested Party”) promptly after the receipt of any claim that may be indemnifiable hereunder and afford the Requested Party the opportunity to control the defense and approve any compromise, settlement, litigation or other resolution or other disposition of such claim; provided, however, that: (a) if the Requested Party fails or elects not to either defend or settle any such claim, the Requesting Party may defend the claim, and keep the Requested Party informed of the progress of such claim; or (b) settle the claim for a commercially reasonable result and consult with the Requested Party before agreeing to a settlement amount.  The Requesting Party shall have the right to participate in the defense of any such claim with its own counsel and shall be responsible for all fees and costs associated with the same.

9.     Trademarks; Publicity.  Any use of the name or any trade name, trademark or service mark of a Party or any of its Affiliates in any promotion, advertising or other similar materials or in any publicity or news releases by the other Party or any Affiliate of the other Party shall be subject to the prior written approval of the first Party and its Affiliates, as the case may be.  Notwithstanding the foregoing, (i) Algoma has the right to announce its business relationship with Customer via a press release (including the use of Customer’s logo) and on Algoma’s website and in other commercial materials, and (ii) Algoma shall have the right to use Customer’s name and logo (in accordance with Customer’s standard guidelines to the extent provided to Algoma) to publicly disclose (including on client lists published on Algoma’s website) that Customer is a user of Algoma’s services, or to present such name and logo as part of the Services under this Agreement.  From time to time Customer shall provide a quote from a senior executive for Algoma’s use, attesting to Customer’s experience with the Services.

10.   Confidential Information.

10.1  Acknowledgement.  Each Party (the “Recipient”) acknowledges and agrees that all Confidential Information of the other Party (the “Disclosing Party”) (a) is and shall remain the sole and exclusive property of the Disclosing Party, (b) is critical to the Disclosing Party’s competitive position in the marketplace, and (c) is valuable, trade secret property.  With respect to Personal Information, such Confidential Information is or may be subject to certain laws and regulations governing the privacy and security of such Personal Information.  Each Party agrees to safeguard Confidential Information against unauthorized access, acquisition, use or disclosure.  Each Party agrees that it and its Representatives (as defined below) or Affiliates to whom it discloses Personal Information pursuant to this Agreement has implemented and will maintain a written information security program containing administrative, technical and physical safeguards for the protection of Personal Information that are designed to (x) ensure the security and confidentiality of Personal Information; (y) protect against any anticipated threats or hazards to the confidentiality, security, or integrity of Personal Information; and (z) protect against any unauthorized access to, acquisition of, or use of such Personal Information not authorized pursuant to this Agreement, including, but not limited to, any access or use that could result in substantial harm or inconvenience to either Party.

10.2  Restrictions on Use and Disclosure.  Notwithstanding any other provision of the Agreement, the Recipient agrees that it will (a) hold in confidence and not disclose to any third party other than its Representatives (as defined below) any Confidential Information of the Disclosing Party; (b) protect such Confidential Information against unauthorized use or disclosure with at least the same degree of care that Recipient uses to protect its own Confidential Information, but in no case less than a reasonable degree of care; (c) use the Disclosing Party’s Confidential Information only as provided for in this Agreement; and (d) limit access to the Disclosing Party’s Confidential Information to its Representatives having a need to know such Confidential Information and who are bound by confidentiality obligations substantially similar to those contained herein.  The Recipient shall be liable to the Disclosing Party for any breach by any of its Representatives of the terms and conditions contained herein.

10.3  Personal Information.  Both Parties agree that Confidential Information will not be disclosed, given, bartered, sold, traded, transferred or exchanged in any way to a third party except as specifically permitted herein (other than due to a change of control of the applicable Recipient) and if this were to occur, it would be a material breach of this Agreement, unless such Party otherwise has the independent right to engage in any of the foregoing activities outside of this Agreement.

10.4  Required Disclosure.  If the Recipient or any of its Representatives is required to disclose in connection with any proceeding, or otherwise becomes legally compelled to disclose, any Confidential Information, the Recipient shall provide the Disclosing Party (at the Disclosing Party’s expense) prompt prior written notice and reasonable assistance so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Agreement.  The Recipient shall not, and shall not permit its Representatives to, oppose any action by the Disclosing Party to obtain a protective order or other appropriate remedy.  If such a protective order or other remedy is not obtained, or if the Disclosing Party waives compliance with this Section 10, the Recipient (or such Representative required to disclose Confidential Information) may disclose such Confidential Information, but only such Confidential Information as it is legally required to disclose to avoid contempt or other penalty or to comply with such request or requirement of the governmental authority, all in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded all such Confidential Information.

10.5  Representatives.  The Recipient may disclose or otherwise make available Confidential Information of the other Party to its attorneys, accountants, employees, officers, directors, agents, representatives, subcontractors or other persons performing Recipient’s obligations or exercising its rights under this Agreement, in each case who need to know such Confidential Information (“Representatives”). Whenever Confidential Information is permissibly shared under this provision, each Party agrees that it will be disclosed to such Representative(s) subject to confidentiality obligations at least as restrictive as those between the Parties in this Agreement.

10.6  Return of Confidential Information.  Upon termination of this Agreement, promptly upon written request by the Disclosing Party, the Recipient shall return to the Disclosing Party all Confidential Information in Recipient’s possession or control, including all copies thereof, in whole or in part, or upon written agreement of the Disclosing Party, shall destroy such Confidential Information and provide an affidavit to the Disclosing Party of such destruction.  If the Recipient is unable to delete, purge or destroy any Confidential Information from the Recipient’s storage or archival media, Recipient shall notify the Disclosing Party in writing, specifying the information and location thereof, and shall retain such Confidential Information only on its storage or archival media, and shall not otherwise access or use it.  The Recipient may retain Confidential Information as required by applicable law.  Any information so retained must be protected consistent with the terms herein for so long as it is maintained.

10.7  Data Security.  Algoma shall adhere to its security policies as described at [URL] (or any successor website).

11.   Term.  The rights and obligations herein shall be effective on the effective date of the applicable Order Form and shall continue for the period outlined in the applicable Order Form (the “Term”). 

12.   Termination.

(a)       Either Party shall have the right to terminate this Agreement immediately following the occurrence of any of the following: (i) Customer’s failure to pay any fees or expenses under this Agreement and the failure to pay has not been cured within ten (10) days following Customer’s receipt of written notice from Algoma, or (ii) a Party’s material breach of a material obligation under this Agreement that is not cured within thirty (30) days from notification in writing from the non-breaching Party specifying the breach.

(b)       Either Party shall have the right to terminate this Agreement if the other (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed, dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

12.2  Suspension.  If Customer is delinquent on any payment, or otherwise upon Algoma’s reasonable good faith belief that tortious, criminal or otherwise illegal activity may be associated with Customer’s or an Authorized User’s use or access of the Services, or that any such use or access may be taking place in a manner that constitutes a breach of this Agreement, Algoma may, without limitation to any other remedy, upon prior written notice (if reasonably possible or as soon as possible thereafter) to Customer describing in reasonable detail such alleged activity, without incurring any liability, temporarily suspend the use of and access to the Services pending investigation and resolution of the issue or issues involved.  The Parties agree to promptly cooperate in good faith to address such issues, and if applicable, restore use and access.

12.3  Effect of Termination.  Upon termination of this Agreement for any reason: (a) Customer’s and all Authorized Users’ access to and use of the Services shall cease as of the effective date of termination; and (b) provided the termination was not duly effected by Customer under Section 15(a), all fees that would otherwise become due and payable for the remainder of the Term under this Agreement shall become due and payable sixty (60) days after the effective date of termination.

13.   Definitions

13.1  “Affiliate” of a Party means any other entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party.  For the purpose of this definition, “control” means the ownership of more than fifty percent (50%) of the voting securities of an entity, and with respect to not-for-profit entities, the right to designate or appoint, directly or indirectly, 50% or more of such entity’s members, directors, governors, trustees or other governing body.  “Controlled by” and “under common control with” have correlative meanings.

13.2   “Confidential Information” means all technical, business and other information of any kind of a Party furnished or disclosed to the other Party from time to time, before or during the Term (as defined below), that (a) is designated by such Party as confidential or proprietary; (b) would reasonably be viewed as confidential to such Party or a third party; (c) would reasonably be viewed as having value to a competitor of such Party; or (d) if disclosed, accessed or used without authorization, would cause a material adverse impact on such Party’s business, operations or security. Without limiting the generality of the foregoing, Confidential Information of Algoma includes the Services, the Algoma Documentation and all data and information regarding the activities of Algoma’s business.  Notwithstanding the foregoing, Confidential Information does not include information that a Party can document (x) is or has become known in the public domain without breach by such Party of any obligation to the other Party or any other person or entity; (y) was in the lawful, authorized possession of such Party prior to disclosure by the other Party; or (z) was independently developed by such Party without reference to, or use of, any Confidential Information of the other Party, as evidenced by its prior written records.

13.3  “Customer Data” means any and all (a) data and information in any form that is inputted, submitted, uploaded or otherwise transferred by or on behalf of Customer or any Authorized User to the Services; and (b) data produced as a result of the Services processing the data and information described in (a) above. 

13.4  “Algoma Documentation” means the standard published materials authorized and distributed by Algoma to its customers that describe the use of the Services.

13.5     “Personal Information” or “PII” means: (a) information or data that identifies or can be used to identify an individual (including an individual’s name, signature, mark, address, email address, telephone number, Social Security number, driver’s license number, or any other unique identifier); (b) information or data that can be used to authenticate an individual (including unique access codes, passwords, personal identification numbers, answers to security questions, biometric data, or other unique personal identifiers); (c) Protected Health Information (“PHI”) as defined by HIPAA limited to the information created, received, maintained or transmitted by or to Algoma; or (d) any other information or data as defined by applicable privacy and/or data security laws or regulations.  For clarity, Usage Data is not Personal Information or PHI.

13.6  “Services” means the service provided by Algoma of making its proprietary software available to Customer on a hosted, software-as-a-service basis, as described in the Algoma Documentation.

13.7     “Third Party Materials” means software,  systems, documentation, and/or any other materials or technology that are publicly available, or are owned or distributed by third parties, and in each case that are incorporated into, provided with, or utilized by the Services, or otherwise used in connection with the Services.

13.8     “Usage Data” means any data other than Customer Data which is generated by Authorized Users’ use of the Services.

14.   Miscellaneous.

14.1  Assignment.  This Agreement shall be binding upon the Parties’ respective successors and permitted assigns.  Customer shall not assign its rights or obligations under this Agreement without the prior written consent of Algoma. Nothing herein shall prohibit Algoma from: (i) engaging Affiliates, licensors, subcontractors and third party service providers to perform its obligations under this Agreement, in which case Algoma shall require such Affiliates, licensors, subcontractors and third party service providers to comply with all applicable Algoma obligations hereunder or (ii) assigning this Agreement, and its rights and obligations hereunder, to an Affiliate of Algoma, or to any subsidiary or division of Algoma, or in connection with the sale of all or substantially all of its assets to which this Agreement relates, or to a successor in connection with a merger.  

14.2  Notices.  Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if: (i) delivered personally; (ii) mailed by certified or registered mail return receipt requested, postage prepaid; or (iii) sent by overnight guaranteed delivery service, and addressed to the Party’s proper address as set forth on the relevant Order Form or to such other address or addressee as either Party may from time to time designate to the other by written notice.  Any such notice or other communication shall be deemed to be given as of the date it is delivered to the recipient.

14.3  Governing Law.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without reference to the conflict of laws provisions thereof.  In any action to enforce this Agreement or arising out of this Agreement, the Customer consents to the jurisdiction of and venue in the federal and state courts in New York, NY, for the adjudication of all matters relating hereto or arising hereunder.  The parties unconditionally waive their respective rights to a jury trial for any claim or cause of action arising out of or relating to, directly or indirectly, this Agreement, any of the related documents, or any dealings between them arising out of or relating to the subject matter of this transaction or any related transactions.

14.4  Force Majeure.  Algoma cannot ensure uninterrupted or error-free service or access to the Services.  There may be periods where access to the Services is delayed, limited or not available.  Except for any payment obligations hereunder, the performance of either Party under this Agreement may be suspended to the extent and for the period of time that such Party is prevented or delayed from fulfilling its obligations due to causes beyond its reasonable control (including acts of God, acts of terrorism, cyberattacks of any kind, acts of civil or military authority, including government priorities, new legislation or regulatory requirements, strikes or other labor disturbances, fires, floods, pandemics or epidemics, wars or riots, or failure of third party software or infrastructure that is not under Algoma’s direct control).

14.5  Modifications. No modification, amendment, supplement to or waiver of this Agreement or any of its provisions shall be binding upon the Parties unless made in writing and duly signed by both Parties.  A failure or delay of either Party to: (a) insist upon the performance of any terms or conditions of this Agreement; or (b) exercise any rights or privileges conferred in this Agreement shall not be construed as waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect.

14.6  Severability.  In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable provision, which, being valid, legal and enforceable, comes closest to the intention of the Parties underlying the invalid, illegal or unenforceable provision.

14.7  Entire Agreement.  The terms and conditions of any and all Order Forms, referenced terms, and other attachments to this Agreement are incorporated herein by this reference and shall constitute part of this Agreement as if fully set forth herein.  This Agreement constitutes the entire agreement between the Parties and supersedes all previous or contemporaneous agreements, promises, representations, whether written or oral, between the Parties with respect to the subject matter hereof.  Algoma is not bound by any term or condition that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, that differs from or adds to the Agreement unless specifically agreed to in writing by Algoma. 

14.8     Interpretation.  The word “including” and its grammatical variations shall be deemed to be followed by “without limitation”.  Unless the context otherwise requires, the word “or” shall be deemed to mean “and/or”.  “Will” shall be deemed to mean “shall”.  “Such as”, “for example” and “e.g.,” shall each be deemed to mean “for example, but without limitation”.  Headings in this Agreement are to assist the reader and do not constitute a part hereof.

14.9     Independent Contractors.  The relationship of the Parties shall be that of independent contractors.  Any employee, servant, subcontractor or agent of Algoma who is assigned to provide services under this Agreement shall remain at all times under the exclusive direction and control of Algoma and shall not be deemed to be an employee, servant, subcontractor or agent of Customer.  Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity, except as specifically provided herein.

14.10  Surviving Terms.  In addition to this Section 14.10, the provisions of Sections 4, 5, 6.4 through 6.7, 7, 8, 10, 12.3, 13 and 14  and any other obligation under this Agreement which is to survive or be performed after termination of this Agreement shall survive the termination of this Agreement.