Automated Operations Service Subscription Terms

These Subscription Terms (together with an Order Form, the “Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below), and is an agreement between Automated Operations, LLC (“AO,” “we,” “us,” or “our”) and you or the entity you represent (“Customer” or “you”). This Agreement takes effect when you sign an Order, click an “I Accept,” “Sign up” or similar button or check box presented with these terms or, if earlier, when you access or use the Service (the “Effective Date”). By accepting this Agreement, you agree to be legally bound by its terms. AO does not provide services to any government or quasi-governmental entities outside of the United States. You represent to AO that you are lawfully able to enter into contracts (e.g., you are not a minor), and you do not represent a government or quasi-governmental entity outside of the United States. If you are entering into this Agreement for an entity, such as the company you work for, you represent that you have legal authority to bind that entity.

1. Definitions.

   1. “Acceptable Use Policy” means AO’s Acceptable Use Policy currently published at https://www.monitormountain.com/aup/, as it may be updated from time to time.

   2. “Affiliate” means, with respect to a party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such party; “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect ownership of more than 50% of the voting securities of a business entity.

   3. “Applicable Laws” means any and all governmental laws, rules, regulations or orders that are applicable to a particular Party’s performance under this Agreement.

   4. “Authorized User” means an individual employee, agent or contractor of yours or your Affiliate’s, who is authorized by you or the applicable Affiliate to access and use the Service pursuant to the terms of the applicable Order and this Agreement.

   5. “Customer Data” means the data, content and other material that you and/or any Authorized User run on or through the Service, cause to interface with the Service, upload to the Service, or otherwise transfer, process, use or store in connection with the Service.

   6. “Documentation” means such technical and operations documentation as AO may make available at https://docs.monitormountain.com/, or such alternate or successor website as AO may designate from time to time.

   7. “Lab Services” means a product, service or functionality provided by AO that may be made available to you to try at your option which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.

   8. “Local Software” means the software, in executable form only, which AO makes available for download and installation on Customer-controlled devices in order to access or collect data from Customer’s systems when applicable for Customer’s use of the Service, and all updates and revisions of such software.

   9. “Non-AO Material” means any third-party material identified in an Order, any publicly available client libraries written by third parties to support use of the Service, and any Non-AO Services.

   10. “Non-AO Services” means systems, software and hosted services provided by you or by a third party to which the Service supports integrations or other connections.

   11. “Order” means a separate (a) online order for a Service completed and submitted by you through AO website and accepted by AO, or (b) written order for a Service pursuant to this Agreement executed by both AO and Customer.

   12. “Service” means the subscribed service offering(s) listed in the applicable Order. The features and functionality of Service may be modified, enhanced or otherwise changed from time to time, provided such change does not result in a material adverse change to the applicable Service (in its entirety) as it existed at the Effective Date.

   13. “Service-Specific Terms” means terms and conditions, in addition to those set out in this Agreement and an Order, that apply to a particular Service, as provided at the time of execution of the Order and updated from time to time. If a term in the applicable Service-Specific Terms conflicts with, or is different than, a term in this Agreement, then the Service-Specific Terms will prevail.

2. Use of Service; Software.

   14. Subject to the terms of this Agreement, the Acceptable Use Policy and the applicable Order, AO authorizes you and your Affiliates to access and use the Service and Documentation solely for your internal, business use, by and through Authorized Users. This authorization is limited, nonexclusive and (subject to Section 14.3) nontransferable. You will be liable for the actions or omissions of your Affiliates and Authorized Users as if you had acted or failed to act.

   15. Subject to the terms and conditions of this Agreement and the execution of an Order authorizing the use of Local Software, AO grants Customer a limited, non-exclusive, non-transferable license to reproduce, install on computers owned or controlled by Customer, and use the Local Software only for Licensee’s internal use in connection with its ordinary business operations using the Service. AO may also make other software applications or libraries available from time to time, which shall be subject to the terms of the license agreement(s) referenced in the applicable help, notices, about or source files.

   16. Non-AO Services and Material.

   17. Evaluation. Any free trial or evaluation of the Service is provided free of charge only until the earlier of (a) the end of the free trial period AO has identified; (b) the start date of any subscription to such Service purchased by You; or (c) termination of the trial period by AO at its sole discretion. Trial or evaluation may be subject to additional terms and conditions. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. AO stores Customer Data submitted by Customer during trials or evaluations of the Service in the same manner and subject to the same security precautions as Customer Data submitted during paid subscriptions; provided, however, that any Customer Data stored in the Service, and any configurations or customizations made to the Service by or for Customer, during a trial or evaluation period will be permanently lost at the end of the trial or evaluation unless Customer purchases a subscription to the Service or exports such Customer Data (to the extent such functionality is available), before the end of the trial or evaluation.

   18. Lab Services. From time to time, AO may make Lab Services available to Customer. Customer may choose to try such Lab Services at its sole discretion. Lab Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Lab Services are not considered a “Service” under this Agreement; however, all restrictions, disclaimers, AO’s reservation of rights and Customer’s obligations concerning the Service shall apply equally to the use of Lab Services. Unless otherwise stated, any Lab Services trial period will expire upon the earlier of (a) twelve (12) months from the trial start date or (b) the date that a version of the Lab Services becomes generally available without the applicable Lab Services designation. AO may discontinue or change Lab Services at any time in AO’s sole discretion and may never make them generally available.

3. Requirements and Restrictions.

   19. You shall be solely responsible for providing, installing and maintaining at your own expense all equipment, facilities and services necessary to enable Authorized Users’ access and use of the Service.

   20. You are solely responsible for ensuring the security and confidentiality of all user IDs, passwords and other credentials associated with your Service usage. Without limiting the foregoing, you shall use commercially reasonable efforts to prevent unauthorized access or use of the Service, and shall contact AO promptly if: (a) any user information, password or other credentials related to the Service is lost, stolen or disclosed to an unauthorized person; or (b) you reasonably believe the Service has otherwise been compromised.

   21. Customer shall use the Service exclusively for proper and legal purposes. In connection with its use of the Service and all instructions to AO concerning the processing of data using the Service, Customer will comply with all Applicable Laws, and all policies of and Customer agreements with the owner or operator of any platform with which Customer integrates (or requests that AO integrate) the Service. Customer shall not use the Service to collect or process any data in the “special categories of personal data” under the General Data Protection Regulation (Regulation (EU) 2016/679), or that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which AO and Customer operate, such as (by way of example only) government-issued identification numbers, financial account numbers, nonpublic personal information governed by the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, the Financial Services Modernization Act of 1999 and applicable regulations, and the standards promulgated by the PCI Security Standards Council. Customer shall not use the Services to transmit any bulk unsolicited commercial communications.

   22. No provision of this Agreement includes the right to, and you shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Service or Local Software; (b) modify or create any derivative work based upon the Service or Local Software; (c) engage in, permit or suffer to continue any copying or distribution of the Service or Local Software; (d) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code or any underlying elements of, any software that is part of the Service or the Local Software (except to the specific extent such restriction is limited under directly Applicable Laws, and then such activities may be undertaken only to the extent strictly necessary and after Customer has requested and failed to receive under reasonable terms assistance from AO to resolve the matter sought to be addressed by such activities); (e) access the Service for benchmarking or performance testing; (f) access the Service or Local Software in order to build, or assist a third party to build, a competitive solution; (g) remove, obscure or alter any proprietary notice related to the Service or Local Software; or (h) use or permit others to use the Service or Local Software other than as described in this Agreement, the Acceptable Use Policy, and Documentation, or for any unlawful purpose, including the infringement or violation of any third-party rights of any kind.

   23. In the event AO believes that you are violating any of the terms set forth in this Section 3, in addition to any other remedies available at law or in equity (including termination pursuant to Section 9), AO will have the right to suspend your (or any Authorized User’s) access to and use of the Service for so long as is reasonably necessary to address such potential violation. AO shall use commercially reasonable efforts to notify you of any such suspension by email and in advance (except in urgent or emergency situations), and will work with you in good faith to resolve the potential violation.

4. Service Availability, Maintenance and Support.

AO shall use commercially reasonable efforts to: (a) make the Service available for access and use by Authorized Users over the Internet, (b) provide support in the use of the Service through the Service itself and by email and other means selected by AO in accordance with AO’ then-current policies, and (c) provide access to new features or performance improvements in the Service if and when AO makes any such features or improvements generally available to its subscriber base at no additional charge. If Customer’s subscription includes service-level commitments for Service availability and Support, and the Order accordingly specifies that a Service Level Agreement applies, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached to or referenced in the Order The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and AO’s entire obligation, with respect to any service-level violation.

5. Data and Security.

   24. You hereby grant AO a worldwide, non-exclusive, royalty-free right and license to use, reproduce, transmit, perform, display and store Customer Data for the purposes of the provision and support of the Service for your benefit. Further, AO may additionally: (a) use Customer Data to maintain, evaluate, develop and improve its products and services subject to the confidentiality obligations contained in Section 8; and (b) retain, use and disclose Customer Data in aggregate form only, not attributable to you, for research and marketing purposes.

   25. AO shall use reasonable industry standard security measures to protect Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure.

6. Proprietary Rights.

   26. Subject only to the limited rights expressly granted in this Agreement, as between you and AO, you will retain all right, title and interest in and to the Customer Data and all intellectual property rights therein.

   27. You may provide AO with bug reports, suggestions or other feedback related to the Service (collectively, “Feedback”). By submitting any such feedback, you hereby grant to AO a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate any Feedback into the Service or other AO offerings.

   28. The Service, together with all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, user interfaces, techniques, methods, applications, libraries, documentation or other technology and materials of any kind, or any enhancement thereto, used or made available by AO to you or any Authorized User in connection with the Service and Support, constitute or otherwise involve valuable intellectual property rights of AO and all right, title and interest in and to the foregoing will, as between the parties, be owned by AO. No title to or ownership of the Service, or any intellectual property rights associated therewith, is transferred under this Agreement and AO reserves all rights not otherwise expressly granted herein.

7. Payments.

   29. Recurring fixed payments for the use of the Service are invoiced for the Order Term (and each Renewal) in advance. Variable payments for overages or other services provided by AO are invoiced monthly in arrears. You shall pay to AO the amounts specified in each Order in accordance with its terms and this Agreement within 30 days of the date of each AO invoice. All amounts shall be paid in U.S. dollars and shall be nonrefundable and fully earned when paid except as expressly set forth in Sections 9.3 or 11.1. In all other cases, and regardless of whether you and your Authorized Users access or use the Service at the levels reflected in the Orders or otherwise, you are responsible for paying all amounts specified in the Orders through expiration of the applicable Order Terms. You must assert any payment dispute in writing within 10 days of your receipt of the invoice giving rise to the dispute and pay all undisputed amounts timely. AO will not exercise its suspension or termination rights or apply late fees if you dispute the applicable charges reasonably and in good faith, pay all undisputed charges timely, and provide reasonable cooperation to resolve the dispute. Except in the event of such good faith disputes, all unpaid invoices past due are subject to a late charge equal to the lesser of 1.5% per month or the maximum such charge allowed by law.

   30. Effective upon the first anniversary of the Effective Date and up to one time per calendar year thereafter (or, if an Order Term is longer than one year, then up to one time for each Renewal), AO may increase then current pricing for the Service by written notice not fewer than 45 days prior to the commencement of a Renewal. If you object to the increase, then you must notify AO of your intention not to renew the Order within 30 days of your receipt of notice of the increase from AO. Failure to timely notify AO shall be deemed to constitute consent to the applicable fee increase.

   31. If you are paying using a credit card or any digital payment method supported by AO, you authorize AO to charge your account for the Service using that payment method. You must keep all information in your billing account current to ensure that all amounts are charged to the appropriate account and are timely paid. If you notify AO to stop using a previously designated payment method and fail to designate an alternative, AO may immediately suspend use and access to the Service. Any notice from you changing your billing account will not affect charges AO submits to your billing account before AO reasonably can act on your request. Notice (including email) from our third-party credit card processor declining your credit card or otherwise relating to your account will be deemed valid notice from AO.

   32. Taxes. All fees and amounts set forth in the Orders are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). You shall be solely responsible for all Taxes other than any Taxes imposed by the taxing authorities in AO’s jurisdiction on AO’s income, personnel or assets.

8. Confidentiality.

   33. As used in this Agreement, “Confidential Information” means any information disclosed by one party, its Affiliates, business partners or their respective employees, contractors or agents (the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that the Discloser is obligated to keep confidential; (c) Customer Data; and (d) the terms of this Agreement. However, Confidential Information does not include any information that: (i) was known to the party that receives any Confidential Information (the “Recipient”) without a confidentiality obligation prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.

   34. Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The Recipient shall protect Confidential Information of the Discloser against any unauthorized use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against unauthorized use or disclosure, but in no event shall use less than a reasonable standard of care to protect such Confidential Information. The Recipient shall use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (a) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement; (b) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (c) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations. These obligations of confidentiality shall survive expiration or termination of this Agreement.

9. Term and Termination.

   35. An Order may state a term for that Order (the “Order Term”). In the event an Order does not specify a term, then the initial Order Term will run from the Order’s effective date for 30 days. Except as otherwise specified in the Order, Customer’s subscription to the Services will automatically renew for successive terms equal in length to the initial Order Term (each, a “Renewal” and together with the initial Order Term, the “Term”) until either party notifies the other of its intent not to renew fifteen (15) days prior to the end of the then current Term. Unless this Agreement is terminated earlier in accordance with the terms of this Agreement, the term of this Agreement will continue through the expiration or earlier termination of the last Order to be in effect.

   36. AO may terminate any Order or suspend Service upon written notice to you if you fail to pay any amount due under the Order, and such failure continues more than 10 days after AO’s delivery of written notice. In addition, either party may terminate this Agreement and all Orders, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach (if capable of cure) remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.

   37. Upon expiration or earlier termination of an Order: (a) all rights granted to you with respect to the Service and Support under such Order will terminate effective as of the effective date of termination; (b) AO shall have no obligation to provide the Service to you or Authorized Users after the effective date of the termination; and (c) you shall pay to AO any amounts payable for the use of the Service through the effective date of the termination, together with all other amounts in accordance with the Order and Section 7, or if you have terminated this Agreement or an Order for AO’ material breach, AO will refund to you a pro rata share of any unused amounts prepaid by you under the applicable Orders for the Service on the basis of the remaining portion of the current Order Terms. For up to 30 days from the effective date of termination an Authorized User designated by you will be permitted to continue to access and download (not more than once during such period) the information that is stored in the Service database as of the effective date of termination, provided that (i) you have paid all amounts due under this Agreement; (ii) the designated Authorized User shall not otherwise access or use the features or functionality of the Service; and (iii) such access and use shall otherwise continue to be subject to the terms and conditions of this Agreement.

10. Warranty; Disclaimers.

    38. Each party hereby represents and warrants to the other that the representing party has the authority to enter into and perform this Agreement, and such party’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any Applicable Laws.

    39. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT. THE SERVICE, SUPPORT AND ALL OTHER ITEMS MADE AVAILABLE BY AO ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. AO SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

    40. ANY TRIAL OR EVALUATION USE OF THE SERVICE OR ANY USE OF LAB SERVICES IS AT CUSTOMER’S OWN RISK. ANYTHING ELSE IN THE AGREEMENT NOTWITHSTANDING, AO EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE LAB SERVICES, AND THE SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS, AND WILL HAVE NO LIABILITY FOR ANY CLAIM, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE LAB SERVICES, OR THE SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS.

11. Indemnification.

    41. Subject to Section 11.4, AO agrees to defend you, your Affiliates and your respective employees, officers and directors (collectively, “Customer Indemnitees”), against any third-party claim, action, proceeding or suit alleging that use of the Service in accordance with this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”), and will indemnify the Customer Indemnitees against any damages awarded or settlements payable to such third party. If the Service becomes, or in AO’s opinion is likely to become, the subject of a Customer Infringement Claim, AO may in its discretion and at its own expense: (a) obtain for you the right to continue using the Service; (b) modify the Service so that it no longer infringes or misappropriates; or (c) terminate this Agreement and all Orders and issue a pro rata refund of any unused amounts prepaid by you under the applicable Orders for the Service on the basis of the remaining portion of the current Order Terms.

    42. AO will have no liability for any Customer Infringement Claim to the extent it arises from: (a) your use of the Service in a manner inconsistent with its intended use under the Documentation; (b) your breach of this Agreement; (c) Customer Data; (d) technology, data or materials not provided by AO, including the combination of any such technology, data or materials with the Services; (e) AO’s compliance with your specifications or instructions; or (f) your use of the Service after AO notifies you to discontinue use due to an Customer Infringement Claim. THE OBLIGATIONS IN THIS SECTION 11 STATE AO’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.

    43. Subject to Section 11.4, you agree to defend, AO, its Affiliates and their employees, officers and directors (collectively, “AO Indemnitees”), against any and all third-party claim, action, suit or proceeding arising out of or relating to Customer Data or your (or an Authorized User’s) use of the Service, breach of this Agreement or violation of Applicable Law, and will indemnify the AO Indemnitees against any damages awarded or settlements payable to such third party.

    44. A Customer Indemnitee or AO Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other party (each, an “Indemnifying Party”), in writing of any Action for which it seeks indemnification and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnitee shall grant the Indemnifying Party control of the defense and settlement of the Action. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. An indemnitee’s failure to perform any obligations under this Section 11.4 will not relieve the Indemnifying Party of its obligations under the remainder of this Section 11 (as applicable) except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnified Party’s written consent if such settlement shall require action or payment by the Indemnified Party.

12. Limitations of Liability.

EXCEPT FOR AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 11 AND DAMAGES ARISING OUT OF EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 8, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, CONTRACTORS, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AO’ CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO AO BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICE, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

13. Marks; Publicity

    45. Identification of Customer. AO may identify Customer, by name and (upon Customer’s approval) by logo, as a customer of the Service, all on AO’s website and in AO’s other marketing materials.

    46. Case Study. Provided Customer is satisfied with the Service, AO may develop a case study for public dissemination and marketing use by AO describing the benefits Customer has derived from the Service. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.

14. Miscellaneous.

    47. Customer agrees to comply fully with: (a) all relevant anti-corruption laws and regulations, and (b) all export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Service, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (i) used for any purposes prohibited by the such export laws and regulations.

    48. You acknowledge and agree that AO shall provide legal notices to you by email at the address associated with your Order. You shall provide legal notices to AO by email to [email protected], with a duplicate copy sent via registered mail, return receipt requested, to the following address: Automated Operations LLC, Attn: Legal, 2443 Fillmore St #380-7856, San Francisco, CA 94115, or such other address as AO may direct from time to time on its website. You must specify in all such notices that the notice is being given under this Agreement. Notices other than emailed notices will be deemed given and received upon delivery or refusal to accept delivery. Emailed notices will be deemed given and received upon receipt of a non-automated response. Ordinary operational notices may be provided by email or through the Service, and will be deemed received when sent.

    49. Either you, so long as you remain current in the payment of all amounts when due, or AO may transfer this Agreement as a whole to a successor-in-interest in connection with any merger, consolidation or reorganization, or a sale of all or substantially all of the transferring party’s business or assets relating to this Agreement. Neither party may otherwise transfer its rights or obligation under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent, and any purported assignment in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. For the avoidance of doubt, nothing in this paragraph prevents either party from engaging subcontractors in connection with the ordinary course of its business, including in fulfilling its obligations hereunder, provided that each party shall remain liable hereunder for the actions and omissions of such subcontractors as if it had acted or failed to act.

    50. The Service is provided to the U.S. Government as “commercial computer software,” “commercial computer software documentation,” and “technical data” as such terms are used in 48 C.F.R. 12.211 and 12.212, and may only be provided to the United States government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.211 and 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense consistent with the policies set forth in 48 C.F.R. 227.7201-1 and 227.7202-3.

    51. The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another. There are no third-party beneficiaries to this Agreement.

    52. AO shall have no liability to you, Authorized Users or third parties for any failure or delay in performing any obligation under this Agreement due to circumstances beyond its reasonable control.

    53. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law principles or the United Nations Convention on Contracts for the Sale of Goods. Any legal action or proceeding arising under or relating to this Agreement shall be brought exclusively in the state or federal courts located in Santa Clara County, California, USA, and the parties expressly consent to personal jurisdiction and venue in those courts. In any action or proceeding to enforce rights or recover amounts due under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.

    54. The Agreement is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications and agreements between the parties relating to the subject matter of the Agreement. If a term in an Order conflicts with a term in these Subscription Terms, the provisions of these Subscription Terms will prevail unless the term in the Order specifically states that it will prevail. Any terms and conditions of any other instrument issued by you in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Additionally, this Agreement supersedes any confidentiality or non-disclosure agreement previously entered into by the parties with respect to your or an Affiliate’s evaluation of the Service or otherwise with respect to the Service. The failure of AO to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect.

    55. AO may modify these Subscription Terms or the Acceptable Use Policy at any time by posting a revised version to our website at the same URL as the original version(s), and providing notice to you by email or through the Service user interface. Any such modifications will become effective starting with the first Renewal (or the second Renewal if 31 days or shorter) after AO has posted or otherwise informed Customer of the revision prior to the deadline for giving non-renewal notice. Any other amendment or modification to the Agreement must be in writing signed by both parties

    56. Any Order may be executed in counterparts (including by fax, PDF or similar format), each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.