1. Definitions
Any capitalized term used but not otherwise defined in this Agreement has the meaning ascribed to it as set forth below.
“Aggregate Data” means Customer Data and any data derived from Customer Data or Customer’s access to or use of the Platform that has been aggregated and de-identified by Assembly in a manner that does not reveal any personal information and cannot reasonably be used to identify Customer as the source or subject of such data.
“Agreement” means the GTC together with the applicable Order incorporating the GTC.
“Assembly Materials” means, collectively, the Deliverables, Documentation and Platform, including all improvements, enhancements and modifications thereto and derivative works thereof. For the avoidance of doubt, “Assembly Materials” exclude Input and Output.
“Claim” means any dispute or claim arising from or relating to this Agreement, including the validity, applicability or interpretation of this Agreement.
“Confidential Information” means information that a party discloses to the other party in connection with this Agreement that the party identifies in good faith as confidential or proprietary or, given the nature of the information or the circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary. Confidential Information includes non-public information that a party discloses in connection with this Agreement relating to: Intellectual Property; technology; know-how; prototypes; current and future products and services; processes; customers; vendors; suppliers; employees; contractors; business plans and methods; research and development; promotional and marketing activities; finances; pricing; contracts and business arrangements; and other business affairs.
“Credentials” means any user account, password and other authentication credential associated with access to or use of the Platform by Customer.
“Customer” means the party identified as “Customer” in the Order.
“Customer Data” means any data that Customer submits, uploads, emails, transmits or otherwise makes available through the Platform.
“Customer Facility” means any Credential or account, hardware, system or other facility within Customer’s custody or control.
“Deliverable” means any work product or other material created by or on behalf of Assembly that Assembly provides to Customer as part of Services.
“Disclosing Party” means the party disclosing Confidential Information to the other party.
“Documentation” means Assembly’s then-current user manual and technical documentation for the Platform that Assembly makes generally available to customers.
“Emergency Security Issue” means any access to or use of the Platform by: (a) Customer that disrupts or is reasonably likely to disrupt the availability of the Platform to other users; or (b) any unauthorized third party through access to or use of any Customer Facility.
“Exception” means any: (a) access to or use of the Platform by Customer or through any Customer Facility in any manner that does not comply in all material respects with the terms and conditions of this Agreement; (b) access to or use of the Platform by Customer in combination with any hardware or software not provided by Assembly or approved as set forth in the Documentation; (c) modification to the Platform by or on behalf of Customer not made or authorized by Assembly; (d) corruption, inaccuracy or other defect of Customer Data as provided by Customer; (e) failure by Customer to give all required notices and obtain all necessary consents (including all required permissions from Intellectual Property holders) for processing of Customer Data in accordance with this Agreement; or (f) Security Breach occurring with respect to Customer Data within Customer’s custody or control.
“GTC” means these General Terms and Conditions.
“Implementation Services” means the initial implementation, configuration and integration services (if any) that Assembly will provide to Customer in connection with the Platform as set forth in the Order.
“Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); sui generis database rights; trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.
“Module” means an add-on module, feature, integration or other component for performing a specific function or set of functions not included as part of the base Platform, as specified in the Order. If the Order specifies that a particular Module is included, then such Module will be deemed to be part of the Platform under such Order.
“Order” means a sales order, including any SOW attached thereto, incorporating the GTC for Customer to obtain access to and use of certain Assembly offerings specified in the sales order.
“Platform” means Assembly’s proprietary, cloud-based Neos case management platform for customizing, automating and streamlining legal case workflows.
“Process” and “process” (each as used in relation to data) means to employ any operation on data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Professional Services” means any training, development or other professional services that Assembly will provide to Customer as set forth in an SOW.
“Receiving Party” means the party receiving Confidential Information from the other party.
“Security Breach” means any: (a) unauthorized processing of Customer Data; or (b) breach of the physical, technical, administrative or organizational safeguards implemented by a party to protect Customer Data against unauthorized processing.
“Services” means Implementation Services, Support and Professional Services.
“SOW” means a statement of work attached to an Order for Customer to obtain Professional Services as specified in the statement of work.
“Suggestion” means any suggestion, comment, idea, improvement or other feedback relating to any Assembly Materials that Customer elects to provide or make available to Assembly.
“Support” means the maintenance and support services that Assembly will provide to Customer as set forth at https://assemblysoftware.com/maintenance-and-support-schedule.
“Territory” means the United States of America and its territories, unless otherwise specified in the Order.
2. Grant of Rights
(a) Access and Use. During the term of the Order and subject to Customer’s compliance in all material respects with the terms and conditions of this Agreement: (i) Assembly shall use commercially reasonable efforts to provide Customer with access to and use of the Platform; and (ii) Assembly hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Platform and Documentation for Customer’s internal business purposes.
(b) Third-Party Components. Some components of the Platform may be provided with or incorporate third-party components licensed under open source license agreements or other third-party license terms, in which case such license agreements or other third-party license terms apply with respect to such components.
(c) No API Access. Assembly, in its sole discretion, may make available certain application programming interfaces (APIs), software development kits (SDKs), connectors or other tools for developers to connect other platforms or services to the Platform or build add-on modules or functions to the Platform (collectively, “Development Tools”). This Agreement does not grant any rights for Customer to access or use Development Tools. Any access to or use of Development Tools by Customer is subject to Assembly’s approval, which Assembly may grant or deny in Assembly’s sole discretion, and additional terms and conditions.
3. Services
(a) Implementation Services. Assembly shall provide Customer with Implementation Services (if any) as set forth in the Order.
(b) Professional Services. From time to time, Assembly may provide Customer with Professional Services as set forth in an SOW. Each SOW will specify, among other terms the parties deem relevant: (i) a description of the Professional Services and any Deliverables that Assembly will provide; (ii) the schedule for performance; and (iii) the fees that Customer will pay and the schedule for payment.
(c) Acceptance Testing. Assembly shall provide each Deliverable to Customer for testing pursuant to the procedure set forth in the Order. If the Order does not specify any such testing procedure, the testing procedure in this Section 3(c) will apply. Upon Assembly’s completion of a Deliverable, Assembly shall provide the Deliverable to Customer for testing. If Customer determines that a Deliverable fails to conform in any material respect to the specifications for the Deliverable set forth in the Order, Customer shall give Assembly written notice of such non-conformance, specifying in detail the manner of non-conformance (each, a “Notice of Deficiency”) within 10 days after Assembly provides the Deliverable to Customer for testing (the “Testing Period”). The Deliverable will be deemed accepted by Customer if: (i) Customer gives written notice of acceptance (email to suffice); (ii) Customer makes production use of the Deliverable; or (iii) the Testing Period for the Deliverable concludes without Customer giving a Notice of Deficiency to Assembly. If Customer issues a Notice of Deficiency within the Testing Period, Assembly shall use commercially reasonable efforts to resolve any non-conformance identified in the Notice of Deficiency and resubmit the Deliverable to Customer for testing pursuant to this Section 3(c). Upon acceptance of a Deliverable pursuant to this Section 3(c), the Deliverable will be deemed to be part of the Platform, and the terms and conditions herein applicable to the Platform will apply in the same manner to the Deliverable.
(d) Change Order. From time to time, a party may request changes to the Implementation Services or Professional Services. Upon such request, the parties shall discuss a change order to incorporate any changes requested and any appropriate changes to the Order, including any changes to the schedule for performance or fees (each, a “Change Order”). No Change Order will be binding unless it has been accepted in writing by both parties.
(e) Customer Responsibilities. Customer shall perform the tasks and fulfill the responsibilities specified in each Order as tasks and responsibilities that Customer has the obligation to perform or fulfill (collectively, “Customer Responsibilities”). Customer acknowledges and agrees that Assembly’s performance of Services and Assembly’s completion of Deliverables are subject to: (i) Customer fulfilling Customer Responsibilities in all material respects in a timely manner; (ii) the assumptions set forth in the Order remaining valid in all material respects; and (iii) Customer obtaining all licenses and consents required from third parties with respect to any materials provided by Customer that are required for use by Assembly to fulfill its obligations hereunder.
(f) Support. During the term of each Order, Assembly shall provide customer with Support for the Platform under such Order.
4. AI Tools
(a) Description. The Platform may provide Customer with access to and use of certain AI tools that may assist Customer in analyzing data, generating output, and performing other automated functions (collectively, “AI Tools”). Customer’s use of any AI Tool is entirely at Customer’s sole discretion, and the Platform will not implement any results Customer obtains from A use of AI Tools on behalf of Customer unless Customer directs the Platform to do so.
(b) Input and Output. Customer may provide input through AI Tools (“Input”) and receive output from AI Tools based upon Customer’s input (“Output”). As between Customer and Assembly, and to the extent permitted by applicable law, Customer retains Customer’s ownership rights in Input, and Customer owns the Output. In addition to the right and license you grant with respect to Customer Data, Customer hereby specifically grants Assembly and its service providers a royalty-free, fully paid-up, non-exclusive right and license to: (i) use, reproduce, adapt, display and distribute Input as necessary to generate Output; and (ii) use, reproduce, adapt, display and distribute Output through the Platform as directed by Customer.
(c) Output Not Unique. Due to the nature of artificial intelligence generally and generative artificial intelligence specifically, Output may not be unique and other users may receive similar output from AI Tools based upon the input they provide. Customer acknowledges and agrees that Customer’s ownership of Output does not extend to output other users receive from AI Tools based upon the input they provide, and Assembly may provide output to other users based upon the input they provide that is similar to Customer’s Output.
(d) Disclaimer. Customer acknowledges and agrees that Output is not intended to be and should not be used as a substitute for legal analysis and judgment. Customer should not assume, and Assembly does not represent and warrant, that Output will be accurate and complete. Customer further acknowledges and agrees that: (i) artificial intelligence and machine learning are emerging technologies that are rapidly changing and may be prone to errors; (ii) Customer will independently evaluate Output for accuracy and appropriateness for Customer’s use case, including through human review as appropriate, before using or sharing Output; and (iii) Customer will not use or share Output in any way that is misleading or offensive, harms others, or violates applicable law.
5. Conditions and Restrictions
(a) Restrictions. Except as expressly permitted under this Agreement, Customer shall not itself, nor may it permit any other party to: (i) reproduce, distribute, modify, translate, adapt or create derivative works based upon any Assembly Materials; (ii) reverse engineer, decode, decompile, disassemble or otherwise attempt to access or derive any source code or architectural framework of any Assembly Materials consisting of software; (iii) access or use any Assembly Materials for purposes of benchmarking or developing, marketing, selling or distributing any product or service that competes with or includes functions and features substantially similar to any Assembly Materials; (iv) ping or otherwise transmit commands or queries to the Platform for any purpose other than as contemplated herein; (v) rent, lease, lend, sell or sublicense any Assembly Materials, or otherwise provide access to or use of any Assembly Materials as part of a service bureau or similar fee-for-service purpose; (vi) submit, upload, email, transmit or otherwise make available through or to the Platform any material that violates another party’s Intellectual Property or other proprietary rights; or (vii) access or use any Assembly Materials in any way that does not comply with all applicable laws and regulations.
(b) Technical Requirements. Except to the extent expressly covered by Services, Customer shall be solely responsible for obtaining, configuring and maintaining any hardware, network connectivity and third-party software or services required for Customer to access or use the Platform, including computers, mobile devices, operating systems, web browsers and storage devices.
(c) Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. If Customer becomes aware of any unauthorized access to or use of the Platform through use of Customer Facilities, Customer shall promptly give written notice to Assembly of such unauthorized access or use and make reasonable efforts to eliminate such unauthorized access or use. Customer shall implement and adhere to appropriate administrative, technical and physical security policies and procedures and access control methodologies to safeguard access to and use of the Platform through Customer Facilities. All such measures must comply with prevailing industry standards but must in no case consist of less than reasonable care.
(d) Compliance. Assembly does not offer and does not purport to offer any legal, accounting, financial, medical or other professional advice, including any advice for complying with any laws, rules, regulations, best practices or other requirements (collectively, “Compliance Requirements”). Customer shall be solely responsible for determining which Compliance Requirements are applicable to Customer and taking appropriate measures to comply with such requirements. Assembly does not represent or warrant and expressly disclaims any representation or warranty that access to or use of the Platform will ensure that Customer complies with any Compliance Requirements.
6. Fees and Taxes
(a) Fees. Customer shall pay Assembly the applicable fees set forth in each Order pursuant to the payment terms set forth therein. If an Order does not set forth payment terms, payment will be due within 30 days after the date Customer receives the applicable invoice. Any payment not received by Assembly from Customer when due will incur interest at the rate of 1.5% per month or the maximum amount permitted by law, whichever is lower. Unless otherwise specified, all fees set forth in an Order are denominated and due in United States dollars.
(b) No Decrease. During the term of this Agreement, Customer may not decrease the number of authorized users specified in the Order or make any change to the Order that results in a diminution in the fees due under the Order without Assembly’s written consent.
(c) Reconciliation. If the Order specifies access on a per-user basis, the number of Customer users with access to the Platform will be counted based upon the number of Customer users who have been assigned Credentials. Assembly will review Customer’s user count monthly. If Customer’s user count for any month exceeds the number allotted for Customer in the Order, Assembly will invoice Customer the amount due for such overage, and Customer shall pay such amount upon invoice.
(d) Taxes. Any and all amounts payable hereunder by Customer are exclusive of any value-added, sales, use, excise or other similar taxes (collectively, “Taxes”). Customer shall be solely responsible for paying all applicable Taxes, except for any Taxes based upon Assembly’s net income. If Assembly has the legal obligation to collect any Taxes, Customer shall reimburse Assembly upon invoice by Assembly. If Customer is required by applicable law to withhold any amount from its payments to Assembly under this Agreement and pay such amount to a tax authority, Customer shall: (i) deduct such amount from its payments to Assembly under this Agreement and pay such amount to the applicable tax authority, taking reasonable and lawful measures to minimize the amount paid to the tax authority; and (ii) provide Assembly with an official receipt or other appropriate documentation of such payment to the tax authority.
7. Intellectual Property
(a) Assembly Ownership. As between Assembly and Customer, Assembly owns all rights, title and interest (including all Intellectual Property) in and to Assembly Materials.
(b) Customer Ownership. As between Customer and Assembly, Customer owns all rights, title and interest (including all Intellectual Property) in and to Customer Data.
(c) Suggestions. If Customer provides any Suggestion to Assembly, Customer hereby grants Assembly a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made such Suggestion for any lawful purpose, without credit or compensation to Customer.
(d) Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright, trademark, patent or other proprietary notices or disclaimers that appear on or within Assembly Materials.
(e) Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.
8. Data Protection and Security
(a) Notices and Consents. Customer shall give all required notices and obtain all necessary consents (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Platform or otherwise providing Customer Data to Assembly. Customer shall not submit, upload, email, transmit or otherwise make available through or to the Platform any data not owned by Customer or for which Customer does not have all necessary authorization to submit, upload, email, transmit or otherwise make available through or to the Platform.
(b) Purpose of Processing. During the term of this Agreement, Customer hereby grants Assembly and its service providers a worldwide, royalty-free, non-exclusive license to process Customer Data, but only: (i) as necessary for Assembly to provide Customer with access to and use of the Platform in accordance with this Agreement; or (ii) in a manner consistent with Customer’s written instructions.
(c) Aggregate Data. Customer acknowledges and agrees that Assembly may collect or generate Aggregate Data in connection with Customer’s access to or use of the Platform. Customer hereby grants Assembly a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to process Aggregate Data for any lawful purpose.
(d) Protection and Security. Assembly and Customer shall each implement and maintain appropriate administrative, technical and physical security policies and procedures and access control methodologies consistent with prevailing industry standards, but in no case less than reasonable care, to: (i) safeguard Customer Data within its custody or control against any Security Breach; and (ii) comply with all laws and regulations, including all privacy and data security laws and regulations, applicable to its processing of Customer Data.
(e) Security Breach. If either party becomes aware of a Security Breach, it shall promptly (but in no case more than 48 hours after it becomes aware of such Security Breach) give the other party notice of the Security Breach, provided that it may delay providing such notice to the extent required by applicable law or the instructions of a law enforcement agency.
(f) Third-Party Providers. The Platform may offer integrations with third-party providers (collectively, “Third-Party Providers”) that provide products or services through integrations with the Platform, such as payment services, online messaging, document management and retrieval, calendaring and audiovisual communications (collectively, “Third-Party Offerings”). Use of Third-Party Offerings is optional, and Customer can choose which Third-Party Offerings (if any) to use. If Customer chooses to use any Third-Party Offering, then Customer hereby consents to Assembly providing the applicable Third-Party Provider with access to and use of Customer Data for processing by the Third-Party Provider in accordance with Customer’s instructions. Any such access to or use of Third-Party Offerings and processing of Customer Data by Third-Party Providers is subject to the applicable Third-Party Provider’s terms and conditions and privacy policy, and Assembly will have no liability with respect to any such access to or use of Third-Party Offerings or processing of Customer Data by Third-Party Providers.
9. Confidential Information
(a) Maintenance and Use. Receiving Party shall maintain Confidential Information in strict confidence, using the same degree of care that it uses to protect the confidentiality of its own confidential information of like nature, but in no case less than reasonable care. Receiving Party shall not: (i) use or disclose Confidential Information other than as necessary to exercise its rights or fulfill its obligations under this Agreement; or (ii) modify, adapt, reverse engineer, decode, decompile or disassemble Confidential Information, or create any derivative work based upon Confidential Information, except as expressly permitted under this Agreement.
(b) Access. Receiving Party shall restrict access to and use of Confidential Information to its directors, officers, employees, contractors, agents and legal and financial advisers who: (i) have a legitimate need to know Confidential Information; (ii) are informed of the confidential nature of Confidential Information; and (iii) are bound by obligations with respect to Confidential Information that are consistent with, and at least as restrictive as, those imposed by this Agreement.
(c) Exclusions. The duties of confidentiality imposed by this Section 9 do not apply to any information to the extent that it: (i) is known or becomes known to the public in general, other than as a result of a breach of this Agreement or any other confidentiality agreement; (ii) was known by or in the lawful possession of Receiving Party prior to receipt from Disclosing Party; (iii) is or has been independently developed or conceived by Receiving Party without use of or reference to Confidential Information; or (iv) is or has been provided or made known to Receiving Party by a third party without a breach of any obligation of confidentiality to Disclosing Party.
(d) Required Disclosures. Receiving Party may disclose Confidential Information as required to comply with the order of a governmental entity that has jurisdiction over Receiving Party or as otherwise required by law, provided that Receiving Party: (i) notifies Disclosing Party of such required disclosure in advance (to the extent permitted by law) to provide Disclosing Party with an opportunity to seek a protective order; and (ii) takes reasonable steps to minimize the extent of any such required disclosure.
10. Term, Suspension and Termination
(a) Term. The term of this Agreement will be as set forth in the Order.
(b) Suspension. Assembly reserves the right to suspend Customer’s access to or use of the Platform in the event of an Emergency Security Issue. Assembly shall use commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue.
(c) Termination. Notwithstanding anything to the contrary, either party may terminate this Agreement: (i) upon a material breach of this Agreement by the other party if such breach remains uncured 30 days after the party gives the other party written notice of the breach; or (ii) by either party if the other party becomes insolvent or bankrupt; becomes the subject of any proceeding under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
(d) Events Upon Termination. Upon expiration or termination of this Agreement for any reason: (i) all rights granted by Assembly under this Agreement terminate immediately, provided that, except in the event of termination by Assembly pursuant to Section 10(c)(i), Customer may continue to access the Platform for a limited time solely for the purpose of retrieving Customer Data in accordance with the decommission schedule then in effect as posted at https://assemblysoftware.com/decommission-and-terms-schedule; (ii) Customer shall immediately cease all access to and use of all Assembly Materials; and (iii) each party shall immediately cease all use of the other party’s Confidential Information and return or destroy all copies of such Confidential Information that are within its custody or control.
(e) Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement will survive such expiration or termination, including Sections: 5(a) (Restrictions); 6 (Fees and Taxes); 7 (Intellectual Property); 8 (Data Protection and Security); 9 (Confidential Information); 10(d) (Events Upon Termination); 10(e) (Survival); 11 (Representations and Warranties); 12 (Indemnification); 13 (Disclaimer of Warranties); 14 (Limitation of Liability); and 15 (Miscellaneous).
11. Representations and Warranties
(a) General. Assembly and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) its execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) its entry into and performance of this Agreement will not conflict with any provision of law or its certificate of incorporation, bylaws or comparable organizational documents; (iv) no action by any governmental entity is necessary to make this Agreement valid and binding upon it; and (v) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.
(b) Services Warranty. Assembly represents and warrants to Customer that Assembly shall perform Services in a competent and workmanlike manner. Customer’s exclusive remedy and Assembly’s sole obligation with respect to any breach of the foregoing representation and warranty will be for Assembly to reperform the affected Services in compliance with the foregoing representation and warranty, failing which Assembly shall refund to Customer the fees paid by Customer for the applicable Services.
12. Indemnification
(a) Assembly Indemnification. Assembly agrees that Customer shall have no liability and Assembly shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of an unaffiliated third party (collectively, “Losses”) asserting that any Assembly Materials infringe the Intellectual Property of such third party. Notwithstanding anything to the contrary, Assembly shall have no obligation to indemnify, defend or hold Customer harmless against any Loss to the extent arising from an Exception. If any part of Assembly Materials becomes the subject of a claim, or Assembly reasonably determines that any part of Assembly Materials is likely to become the subject of a claim, asserting that Assembly Materials infringe the Intellectual Property of a third party, Assembly may, in its sole discretion: (i) procure a license as necessary for Customer to continue use of Assembly Materials in accordance with this Agreement; (ii) modify or replace Assembly Materials to avoid infringement, provided that Assembly Materials as modified or replaced retain materially the same or better features and functionality; or (iii) terminate the Order (or portion thereof) for Assembly Materials and provide a pro rata refund of the fees paid by Customer to Assembly for the applicable Assembly Materials. This Section 12(a) sets forth Customer’s sole and exclusive remedy with respect to any Losses to the extent arising from any action or claim of an unaffiliated third party asserting that any Assembly Materials infringe the Intellectual Property of such third party.
(b) Customer Indemnification. Customer agrees that Assembly shall have no liability and Customer shall indemnify, defend and hold Assembly harmless against any Loss to the extent arising from any Exception or Customer’s breach of this Agreement.
(c) Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim, provided that failure of the indemnified party to give such prompt written notice will not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 12, except to the extent the indemnifying party has been prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim, provided that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation. The indemnified party shall have the right to retain its own counsel at its own expense to participate in the defense or settlement of any indemnified claim.
13. DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES (EXCEPT AS SET FORTH IN SECTION 11), EXPRESS OR IMPLIED, INCLUDING: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (b) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT ACCESS TO OR USE OF SUCH PRODUCTS AND SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE ACCURACY AND COMPLETENESS OF ALL DATA AND RESULTS SUBMITTED TO OR OBTAINED FROM THE PLATFORM BEFORE TAKING OR OMITTING ANY ACTION BASED UPON SUCH DATA OR RESULTS AND FOR ENSURING ITS COMPLIANCE WITH COMPLIANCE REQUIREMENTS.
14. LIMITATION OF LIABILITY
(a) DISCLAIMER. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF (OR INABILITY TO USE) THE PRODUCTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF ASSEMBLY MATERIALS, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
(b) DAMAGES. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO ASSEMBLY UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
(c) EXCLUSIONS. THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 14(a) AND 14(b) DO NOT APPLY WITH RESPECT TO A PARTY’S FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, VIOLATION OF LAW OR INDEMNIFICATION OBLIGATIONS UNDER SECTION 12.
15. Miscellaneous
(a) Independent Contractors. The relationship between Assembly and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party without the express prior written consent of such other party.
(b) U.S. Government Matters. Notwithstanding anything to the contrary, Customer shall not provide to any person or export or re-export or allow the export or re-export of any Assembly Materials or any direct product of Services (collectively “Controlled Subject Matter”) in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the generality of the foregoing sentence, Customer acknowledges and agrees that it shall not, and it shall not permit any other party to, use, export or re-export the Controlled Subject Matter in or to jurisdictions outside the Territory or in or to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), including in or to any national or resident of an Embargoed Country, or any entity on the United States Department of Treasury’s List of Specially-Designated Nationals or the United States Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the United States Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Assembly are “commercial items” and, according to DFAR section 252.227 7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government is governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.
(c) Notice. Except as expressly provided otherwise in this Agreement, notices given under this Agreement will be in writing and personally delivered by hand, sent via an internationally-recognized courier service, mailed by first-class certified mail (return receipt requested), or sent via email to the address for each party set forth below. Notices will be deemed to have been given: (i) if personally delivered by hand, when delivered (with written confirmation of delivery); (ii) if sent via an internationally-recognized courier service or by first-class certified mail (return receipt requested), when delivered (as shown in the records of the courier or postal service, as applicable); or (iii) if sent via email, on the date such email is transmitted, provided that any notice sent by email after 5:00 p.m. local time for the recipient will be deemed received on the next business day.
To Assembly
Assembly Software
Attention: VP Customer Success
1550 Madruga Ave., Ste 409
Coral Gables, FL 33136
To Customer
As set forth in the Order.
(d) Assignment. Customer may not assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without the prior written consent of Assembly, which consent will not be unreasonable withheld or delayed. Assembly may assign this Agreement, or assign or delegate any right or obligation hereunder, by operation of law or otherwise, without Customer’s consent. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Interpretation. For the purposes of this Agreement: (i) the words “such as,” “include,” “includes” and “including” will be deemed to be followed by the words “without limitation;” (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
(f) Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between the terms and conditions of the GTC and any Order, the terms and conditions of the GTC will take precedence and control except as expressly and unambiguously stated otherwise in the Order.
(g) Amendment. This Agreement may not be amended except in a writing executed by an authorized representative of each party.
(h) Choice of Law. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of Delaware and the laws of the United States of America applicable therein, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted by any state) are specifically excluded from application to this Agreement.
(i) Forum for Disputes. Any Claim will be brought only in a court of competent jurisdiction in Wilmington, Delaware. Each party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Claim.
(j) Severability. If any provision of this Agreement is held to be invalid or unenforceable under applicable law, then such provision will be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.
(k) No Waiver. The failure of either party to require strict performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter, nor will the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of any provision of this Agreement or of any breach or default hereunder must be set forth in a written instrument signed by the party against which such waiver is to be enforced.
(l) Force Majeure. Neither party will be liable for any failure to perform under this Agreement to the extent due to any cause beyond the reasonable control of the party invoking this provision, including any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental entity, epidemic, pandemic, public health crisis, destruction of production facilities or insurrection.
(m) Updates. Assembly may periodically update the GTC and will provide Customer with written notice of such update (email or notice delivered via the Platform to suffice). Customer may review the latest version of the GTC by accessing the URL for this page. To the extent permitted by applicable law, Customer will be bound by any such update to the GTC upon posting by Assembly and Customer’s continued access to or use of the Platform after the effective date for the update specified in the notice provided by Assembly.
(n) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.