End Users Terms and Conditions

By execution of an Order Form referencing Acrolinx Software (the “Service”), Customer may access the Service subject to these terms which Customer accepts and agrees to be bound by and which are incorporated by reference into such Order Form.

1. Content Optimization Service. This agreement provides Customer subscription (i) access to and usage of the Acrolinx’ Internet-based content optimization service (Acrolinx Platform) and (ii) Locally Run Software and Documentation (both defined below) as further specified on an order (collectively, the Service).

2. USE OF SERVICE.

a. Customer Owned Content. All content uploaded, checked, processed, or transmitted by Customer through the Service as well as revised content (Customer Content) remains the property of Customer, as between Acrolinx and Customer. Customer grants Acrolinx the right to use Customer Content for purpose of performing under this agreement. During the term of this agreement, Customer may export its Customer Content as allowed by functionality within the Service.

b. Service Provided Revised Content. The Service provides content revision, scoring, reporting, and guidance information specific to Customer Content (Guidance) as well as some generic guidance and Documentation (defined below). Acrolinx hereby grants Customer a perpetual, irrevocable non-exclusive, transferable license to copy, distribute, create derivative works, modify, publicly perform and display, and otherwise use such Guidance for any business purpose. Acrolinx will destroy any such Guidance stored in its systems within 60 days of the termination of the applicable order.

c. Contractor Access and Usage. Customer may allow its contractors to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.

d. Customer Responsibilities. Customer must keep its passwords secure and confidential. Customer is solely responsible for Customer Content and all activity in its accounts in the Service. Customer must use commercially reasonable efforts to prevent unauthorized access to its accounts. Customer must notify Acrolinx promptly of any such unauthorized access. Customer may use the Service only in accordance with the Service’s online Help Center, Documentation, and applicable law. As Locally Run Software operates in Customer’s environment and connects to the Acrolinx Platform, Customer must use industry standard anti-virus and anti-malware software and update without undue delay the Locally Run Software when updates are made available to Customer. Customer must use software approved by Acrolinx to connect to the Acrolinx Platform.

e. Acrolinx Support. Acrolinx provides customer support for the Service under the terms of Acrolinx’ Customer Support Policy (Support) which is located at https://www.acrolinx.com/Customer-Support-Policy, and is incorporated into this agreement for all purposes.

f. Disclaimer. The Acrolinx linguistic analytic engine supports a wide range of styles, rule sets, and languages. Customer is aware that the degree of refinement and the content analysis within the Service may vary. Customer is solely responsible for the final decision regarding following or modifying Guidance or Customer Content.

ACROLINX DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE ACROLINX TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, ACROLINX DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

3. Payment. Customer pays all fees as specified on the order within 30 days of receipt of an invoice. Customer pays all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement. Customer makes all payments under this agreement via Electronic Funds Transfer (EFT) to an account specified by Acrolinx. All amounts payable shall be in the currency of the United States.

4. MUTUAL CONFIDENTIALITY.

a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, whether before or after signature, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Acrolinx’ Confidential Information includes without limitation the Service, its user interface design and layout, pricing information, security-related information of Acrolinx and its partners and service providers, most Locally Run Software (defined below), and large parts of the Documentation (defined below).

b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its affiliates, employees, and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

5. ACROLINX PROPERTY.

a. Reservation of Rights. The software, workflow processes, underlying algorithms, user interface, designs, Locally Run Software and Documentation, and other technologies provided by Acrolinx as part of the Service are the proprietary property of Acrolinx and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with Acrolinx. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Locally Run Software and Documentation. Acrolinx reserves all rights unless expressly granted in this agreement.

b. Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or their related systems or networks; (v) disassemble, decompile or reverse engineer the Service or Locally Run Software and Documentation, or any part thereof, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Service or Locally Run Software and Documentation by any means whatsoever; or (vi) access the Service or use the Locally Run Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.

c. Locally Run Software and Documentation. As part of the Service, Acrolinx provides Customer with client, connection, and integration software running as desktop application or web application on Customer’s local computers allowing a user to process content with the Acrolinx Platform (Locally Run Software). Acrolinx further provides Customer with the Service documentation, sample data, marketing materials, training material, and other material provided through the Service or by Acrolinx (Documentation). Acrolinx grants Customer a non-exclusive, non-transferable license during the term of each order and subject to the terms of the order, to operate and copy Locally Run Software and Documentation including all generally available updates solely in connection with the Service.

d. Statistical Data. Acrolinx may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate Customer’s data or Customer Content or identify Customer’s Confidential Information or include Customer’s name (Statistical Information). Acrolinx retains all intellectual property rights in Statistical Information.

6. SUSPENSION.

a. Suspension. Acrolinx may temporarily suspend the Service or remove the applicable Customer Content, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. Acrolinx may temporarily suspend the Service for unpaid invoices. Acrolinx will attempt to contact Customer before of any suspension.

7. LIABILITY LIMIT.

a. Exclusion of indirect Damages. Neither party is liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records, or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility of such damage or loss.

b. TOTAL LIMIT ON LIABILITY. Except for indemnity obligations, the total liability of a party arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed ttwice the aggregate amount paid or payable by Customer under the applicable order within the 12-month period preceding the event that gave rise to the liability.

8. INDEMNITY.

a. Defense of Third Claims. Acrolinx will defend or settle any third party claim against Customer to the extent that such claim alleges that Acrolinx technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer, promptly notifies Acrolinx of the claim in writing, cooperates with Acrolinx in the defense, and allows Acrolinx to solely control the defense or settlement of the claim. Costs. Acrolinx will pay infringement claim defense costs incurred as part of its obligations above, and Acrolinx negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then Acrolinx may modify the Service, procure the necessary rights, or replace it with the functional equivalent at no additional cost to Customer. If Acrolinx determines that none of these are reasonably available, then Acrolinx may terminate the Service and refund to Customer any prepaid and unused fees. Exclusions. Acrolinx has no obligation for any claim arising from: Acrolinx’ compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Content; or technology or aspects not provided by Acrolinx. This section contains Customer’s exclusive remedies and Acrolinx’ sole liability for intellectual property infringement claims.

b. By Customer. If a third party claims against Acrolinx that any part of the Customer Content infringes or violates that party’s patent, copyright or other right, Customer will defend Acrolinx against that claim at Customer’s expense and pay all costs, damages, and attorney’s fees, that a court finally awards or that are included in a settlement approved by Customer, provided that Acrolinx: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in, the defense and any related settlement.

9. GOVERNING LAW AND FORUM. Any dispute between the parties or relating in any way to the subject matter of this agreement is governed by the laws of Massachusetts, USA (without regard to conflicts of law principles). Any suit or legal proceeding must be exclusively brought in the federal or state courts for Boston, Massachusetts, USA, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

10. OTHER TERMS.

a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral, or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it or the parties agree to it as part of an online process, e.g. a digital signature process. No waiver is effective unless the party waiving the right signs a waiver in writing.

b. No Assignment. Neither party may assign or transfer this agreement to a third party, except: this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of all or substantially all the assets, of a party. Customer may, without Acrolinx prior written approval, assign this agreement to a majority owned affiliate of the Customer.

c. Independent Contractors. The parties are independent contractors with respect to each other.

d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events. In the event of a force majeure event that prevents, hinders, or delays an Acrolinx performance for more than 30 days, the Customer may terminate the applicable order or this agreement upon notice to Acrolinx without regard to any notice provisions set forth herein.

e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

f. No Additional Terms. Acrolinx rejects additional or conflicting terms of any Customer form-purchasing document.

g. Order of Precedence. If there is an inconsistency between this agreement and an order concluded by both parties, the order prevails.

h. Survival. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.

i. Feedback. If Customer provides feedback or suggestions about the Service, then Acrolinx (and those Acrolinx allows to use its technology) may use such information without obligation to Customer.

j. Legal Compliance. Customer warrants compliance with all applicable laws and regulations.

k. Data Protection Addendum. To the extent required by applicable law, Acrolinx provides the Service under Acrolinx’s data processing addendum located at https://www.acrolinx.com/dpa, which is incorporated into this agreement for all purposes. For the Addendum, “Company” is defined to be Customer and “Main Principle Agreement” is defined to be this SaaS Agreement.

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