Terms of Service
This TERMS OF SERVICE (the “TOS”) together with the Subscription Order Form, Support and Service Level Agreement, Data Processing Addendum, Business Associate Agreement, and any Statements of Work, comprise the Subscription Agreement (“SA”) by and between Creovai Inc. Inc, a Delaware company (“Creovai”) having a place of business at 10900 Research Blvd, Ste 160C, Unit #2065, Austin, TX 78759 and Subscriber (“Subscriber”). Creovai and Subscriber are sometimes referred to individually as a “Party” and collectively as the “Parties”.
1. DEFINITIONS
1.1. “Affiliates” shall mean any entity that is directly or indirectly controlled by, under common control with, or in control of a Party to this Agreement. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty percent (50%) or more of the votes in such entity, is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
1.2. “Communications” means the Subscriber call recordings, audio files, text, SMS or chat communications, surveys, cases and associated transcripts, log files and metadata received by Creovai or generated in connection with the Creovai Platform Service.
1.3. “Data” means the Communications which may be inputted by the Subscriber, authorized users, or Creovai on Subscriber’s behalf for the purpose of using the Services or facilitating the Subscriber's use of the Services. Subscriber shall own all rights, title and interest in and to all of Subscriber’s Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Subscriber’s Data.
1.4. “Documentation” shall mean the user guide and other related materials, if any, which Creovai may supply to Subscriber to facilitate use of the Creovai Platform Services.
1.5. “Fees” and/or “Payments” shall have the meaning set forth in each Subscription Order Form.
1.6. "Governmental Authority" means any governing body, regulatory organization, or legal decision-making entity.
1.7. “Hosted Services” and/or “Services” shall mean the cloud-based hosted software services and/or applications, including the facilities and environment managed or utilized by Creovai, all other software, and all servers, hardware, networks, equipment, and technology installed or used within such cloud environment to provide access and use of the Creovai Platform Services.
1.8. “Licensed Trademarks” shall mean any and all registered and common law trademarks of Creovai, Tethr or Awaken Intelligence
1.9 “Statement of Work” or “SOW” shall mean a mutually agreed upon written agreement for additional services not covered in the Subscription Order Form.
1.10. “Subscription Order Form” shall mean the Subscription Order Form to be provided by Creovai to Subscriber.
1.11. “Subscription Term” shall be the period specified in the Subscription Order Form together with any renewal period, until the Subscription Order Form is terminated or expires.
1.12. “Security Policies” shall mean Creovai ’s most current information security and privacy policies, practices, and procedure.
1.13. “Support and Service Level Agreement” or “SLA” shall mean the then standard support and service level performance standards that Creovai makes available to users of the Creovai Platform and Services.
1.14. “Creovai Platform” includes the features, capabilities, and services as set forth in the Subscription Order Form.
1.15. “Territory” shall mean the countries and geographic area identified in the Subscription Order Form where data will be processed and stored.
1.16 “Subscriber” shall mean the person or organization named in the Subscription Order Form.
2. SERVICES
2.1. General Scope. Creovai will provide Services for Subscriber in accordance with the Subscription Order Form, Support and Service Level Agreement, and any SOW.
2.2. Subscription Agreement. A subscription for Services shall be activated upon the signing of a Subscription Order Form by both Parties. The Subscription Order Form shall be governed by this TOS, provided that a Subscription Order Form may vary this TOS with respect to particular Services in accordance with the applicable Subscription Order Form. In the event of any conflict between the terms of a Subscription Order Form and the TOS, the terms of the Subscription Order Form shall prevail.
3. INVOICING AND PAYMENT
3.1. Invoicing. Subscriber shall pay to Creovai all Fees, and reimburse Creovai for all expenses, properly invoiced in accordance with the terms of each applicable Subscription Order Form, any amendments, thereto and any SOW. Creovai shall submit invoices to Subscriber in accordance with the terms of each applicable Subscription Order Form and any Statements of Work.
3.2. Payment. Unless otherwise stated in the applicable a Subscription Order Form or SOW, payments shall be made to Creovai in USD either by mail, ACH, or wire transfer within thirty (30) days of the date of invoice in accordance with the remittance information contained in the invoice. Interest shall accrue at the rate of one and one-half percent (1.5%) per month on any amounts past due. Subscriber shall notify Creovai within ten (10) days of the date of invoice if Subscriber disputes any amount contained in an invoice.
3.3. Taxes. Subscriber shall pay or reimburse all federal, state, and local taxes and assessments (exclusive of taxes on Creovai net income) or any similar taxes, duties, fees, value added taxes, tariffs, or charges imposed by any Governmental Authority arising from or measured by amounts payable to Creovai pursuant to the Subscription Order Form and SOW and this ToS or furnish Creovai with evidence acceptable to the taxing authority to sustain an exemption thereto. If Subscriber is required to withhold any amount for taxes on any payment to Creovai then the amount of Subscriber’s payment will be automatically increased to offset such amount withheld.
3.4. Subscriber Purchase Orders. Nothing contained in any purchase order will modify or add to the terms of the SA Subscription Order Form. The terms of the SA and Subscription Order Form supersede all terms and conditions contained in any documentation related to the subject matter of the SA and Subscription Order Form and expressly exclude any terms and conditions contained in any Subscriber purchase orders, quotation, invoice, or other document issued by either party.
4. UPGRADES AND UPDATES
4.1. Creovai Upgrades and Updates: Creovai may, during the Subscription Term, issue upgrades or updates to the Creovai Platform or Hosted services as necessary to support or enhance Creovai performance for all Subscribers in accordance with the Support and Service Level Agreement. Subscriber will not be required to pay any additional fees for such upgrades or updates that are made available to all Creovai Subscribers. No such upgrade or update will negatively impair the Services provided by Creovai.
4.2. Subscriber Changes, Upgrades and Updates to its Communication Platform(s): The Creovai Platform is configured to work with one or more of Subscriber’s communication platform(s) (telephony/call recording, chat, text, and case resolution in use by Subscriber as of the Effective Date. Subscriber will promptly notify Creovai of any changes, updates or upgrades in their Subscriber Communication Platforms from which Creovai receives Subscriber Communications. In the event that changes, upgrades or updates cause compatibility issues with the Creovai Platform, Subscriber will be responsible for making any modifications to it as necessary to remedy any incompatibilities with the Creovai Platform and/or the Subscriber Communications Platform(s). Creovai will work with Subscriber as reasonably necessary to accommodate any such changes. Any such modifications shall be made at Subscriber’s expense. Subscriber will assume all costs and liability related to any compatibility issues that result from changes, upgrades or updates in Subscriber Communications Platforms. Creovai shall not be responsible for any performance issues caused by such change, update, or upgrade made by Subscriber unless mutually agreed to in writing. Any disruption of Services that occur as described in this section shall not affect payments made to or due Creovai.
5. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
5.1. Subscriber Materials. Subscriber owns or has rights to Subscriber Data and all content, materials and technology supplied by Subscriber to Creovai (“Subscriber Materials”) under the SA. Subscriber hereby grants to Creovai a nonexclusive, nontransferable, limited license to use Subscriber Materials, if necessary, provided to Creovai under the terms and conditions of the SA. Subscriber reserves all other rights with respect to Subscriber Materials. Upon request of Subscriber, Creovai shall destroy or deliver to Subscriber all copies of the Subscriber Materials provided by Subscriber to Creovai that are not actively in use in performing under the SA. Except as set forth in the SA or Subscription Order Form, with respect to the foregoing license, Subscriber grants no rights or licenses under its intellectual property rights to Creovai.
5.2. Creovai Platform. As between Subscriber and Creovai, Creovai or its licensors retains all right, title, and interest in and to any intellectual property or proprietary rights in the Creovai Platform, Services and Documentation, and any derivative works created thereof, including, but not limited to, all patent, copyright, trade secret, know-how, trademark and other intellectual property rights associated therewith. Creovai shall be the exclusive owner of any and all intellectual property and proprietary rights in any algorithms, machine learning and any tools created or developed by Creovai in connection with the Creovai Platform and related Services.
Without limiting the generality of the foregoing, Subscriber will not itself, directly or indirectly (a) access the Creovai Platform or use the Services with software or means other than as described in the SA; (b) modify, port, translate, or create derivative works of the Creovai Platform or Services; (c) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, or algorithms of the Creovai Platform or Services by any means (except permitted by mandatory laws); (d) sell, lease, license, sublicense, copy, market or distribute the Creovai Platform or Services, except as expressly permitted in the SA; (e) remove any proprietary notices, labels or marks from the Creovai Platform Services, or Documentation; or (f) release to a third party the results of any benchmark testing of the Creovai Platform or Services. In no event shall anything in the SA or in Creovai conduct or course of dealing convey any license, by implication, estoppel or otherwise, under any patent, copyright, trademark, or other intellectual property right not explicitly licensed. All rights not expressly granted to Subscriber under this TOS are reserved by Creovai and/or its licensors.
5.3. Creovai Rights to Use Communications. Subscriber gives Creovai the right, and Creovai has permission to use the Communications as necessary to provide the Services. Creovai and third parties acting under the direction of Creovai may use, compile (including creating statistical and other models), annotate and otherwise analyze the Communications to develop, train, tune, enhance and improve the speech recognition, natural language understanding and other components of the Creovai Platform and Services, including but not limited to the creation of a common data base that includes common words, utterances, and phrases of multiple Creovai customers and that can be used as necessary to enhance and improve the Creovai Platform and Services. Anonymized and aggregated Communications may be used by Creovai to create use cases, success stories and best practices to share with Subscriber and others based on results of Creovai Platform and Services. Creovai may further create aggregated de-identified compilations and analyses of Communications that may be combined with words, phrases and utterances from research, other sources and customers in libraries and categories as necessary to create reports, evaluations, studies, and analyses for the purpose of building and enhancing pre-built libraries, categories, scoring models and algorithms all of which may be included in the Creovai Platform for use with Subscriber and other Creovai customers..
6. INFORMATION SECURITY, DATA PRIVACY AND COMPLIANCE
6.1. Subscriber Responsibilities. Subscriber is solely responsible for, and Creovai shall have no liability with respect to: (a) the content of all Communications utilized as part of the Creovai Platform and conveyed to users of the Creovai Platform or Services; (b) compliance with all applicable governmental, legal and regulatory requirements and laws concerning the Communications received by Subscriber and utilized with the Creovai Platform; (c) the collection of personally identifiable information of individuals obtained in providing Services or access to the Creovai Platform; (d) all Subscriber branding elements; (e) the recording or logging of calls or sessions as part of the Services or use of the Creovai Platform; and (e) obtaining all necessary consents under applicable laws and regulations in order to allow Creovai to use any personal data with the Creovai Platform in accordance with this TOS and for purposes specified in any Subscription Order Form or SOW.
Subscriber is solely responsible for: (a) ensuring that any personal data is collected, processed and disclosed fairly and lawfully by Subscriber when supplying or disclosing such personally identifiable information to Creovai , including but not limited to the obtaining of any consents required from those whose data is collected, and (b) compliance with any and all privacy laws and regulations that apply to the use of personal information that is part of any Communications.
6.2. Security. Creovai shall implement and maintain safeguards that meet then-current and relevant industry standards related to the privacy, security, and availability of Subscriber Communication including, without limitation, maintaining a written information security program that undertakes industry standard measures as reasonably necessary to safeguard and protect the Subscriber Communications from unauthorized access, loss, destruction or use. Creovai may update its Security Policies from time to time but in no event shall Creovai materially reduce the level of security protection provided Subscriber for the Subscriber Communications.
7. SUPPORT
7.1. Support and Service Levels. Creovai shall provide implementation services, support and training to Subscriber as described in the Subscription Order Form, Support and Service Level Agreement, and any SOW.
The SLA applies to commercial deployments only and not to evaluation, proof of concept, pilot, optimization, or trial deployments.
8. INDEMNIFICATION
8.1. By Creovai. Creovai shall, at its own expense, indemnify and defend or, at its option, settle, any claim or action brought against Subscriber by a third party, during the Term, to the extent it is based on a claim that the Creovai Platform directly infringes any patent, copyright or trademark, or misappropriates a trade secret, of such third party. Creovai will indemnify Subscriber against any losses, damages, and expenses that are attributable to such claim or action and are assessed against Subscriber in a final judgment. Creovai shall have the foregoing obligations only if Subscriber provides Creovai with: (a) a prompt written request to undertake the defense in such claim or action; (b) sole control and authority over the defense and settlement thereof; and (c) all available information, assistance, and authority reasonably necessary to settle and/or defend any such claim or action. Creovai shall not be responsible for any attorneys’ fees or other expenses or costs that Subscriber incurs before receipt of Subscriber’s request for indemnification or defense.
8.2. By Subscriber. Subscriber shall, at its own expense, indemnify and defend or, at its option, settle, any claim or action brought against Creovai by a third party, during the Term, to the extent it is based on a claim that is the result of Subscriber supplied Materials, Content, Communications, or a breach of any Subscriber obligations under this TOS or the SA. Subscriber will indemnify Creovai against any losses, damages, and expenses that are attributable to such claim or action and are assessed against Creovai in a final judgment. Subscriber shall have the foregoing obligations only if Creovai provides Company with: (a) a prompt written request to undertake the defense in such claim or action; (b) sole control and authority over the defense and settlement thereof; and (c) all available information, assistance, and authority reasonably necessary to settle and/or defend any such claim or action. Subscriber shall not be responsible for any attorneys’ fees or other expenses or costs that Creovai incurs before receipt of Creovai ’s request for indemnification or defense.
8.3. Limited Remedies. If the Creovai Platform becomes, or in the opinion of Creovai is likely to become, the subject of an infringement claim or action, Creovai may, at its option and in its sole discretion, discharge its obligations under this Section 8 (Indemnification) by: (a) procuring, at no cost to Subscriber, the right to continue using the Creovai Platform; (b) replacing or modifying the Creovai Platform to render it non-infringing, provided there is no material loss of functionality; or (c) if, in Creovai’s reasonable opinion, neither (a) nor (b) above are commercially feasible, terminating the related Subscription Order Form.
8.4. Exclusive Obligation. This Section 8 (Indemnification) states the sole obligation and exclusive liability of each Party (express, implied, statutory or otherwise), and the sole remedy of the other, for any third-party claims or actions of infringement of any intellectual property or other proprietary right.
9. WARRANTY DISCLAIMER
9.1. Services Agreement. Subscriber acknowledges that the Subscription Order Form, any SOW and this TOS is for ongoing services and not for the sale of any product. Creovai represents and warrants that it is authorized to provide the Services, and the Services will be provided in accordance with the Subscription Order Form or any SOW.
9.2. Disclaimer. Except as otherwise provided in the Subscription Order Form and this TOS, the Creovai Platform and Services are provided on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind. CREOVAI AND ITS SUPPLIERS SPECIFICALLY DISCLAIM (TO THE EXTENT PERMITTED UNDER THE APPLICABLE LAW) ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
9.3. Internet Connections. Creovai does not and cannot control internet connectivity. Subscriber’s connections to the internet and/or to telecommunications networks may be impaired or disrupted independent of Creovai. Although Creovai will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Creovai cannot guarantee that such events will not occur. Accordingly, Creovai disclaims any and all liability resulting from or related to such events.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. The total aggregate liability of either party and their respective officers, agents, suppliers and employees for any and all claims arising under this TOS or otherwise arising from the transactions contemplated herein, regardless of the form of action (including, but not limited to actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the aggregate fees actually paid or payable to Creovai under this TOS during the one year preceding such claim. This limitation of liability is cumulative with all Subscriber’s payments during such one-year period being aggregated to determine satisfaction of the limit. The existence of more than one claim shall not enlarge or extend the limit. The foregoing limitation shall not apply to a party’s obligations of indemnification of this TOS, breach of confidentiality obligations, or the proprietary rights license and restrictions of use.
10.2. No Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, AGENTS, SUPPLIERS AND EMPLOYEES, BE LIABLE TO THE OTHER OR ITS AFFILIATES OR THEIR RESPECTIVE OFFICERS, AGENTS, CUSTOMERS AND EMPLOYEES, FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, LOSS OF, OR LOSS OF USE OF, SOFTWARE OR DATA, LOSS OF CUSTOMERS, LOSS OF ANTICIPATED SAVINGS AND LOSS OF PROFITS, WHETHER SUCH ALLEGED DAMAGES ARE LABELED IN TORT, CONTRACT OR INDEMNITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 Applicable Law. Nothing in this Subscription Order Form or any SOW shall limit or exclude our liability for any liability that cannot be excluded or limited by applicable law (which, without limitation, includes, where the laws of England and Wales or the laws of any Governmental Authority apply, liability for death or personal injury caused by a party’s negligence or for fraud or fraudulent misrepresentation).
11. CONFIDENTIALITY
11.1 Definition. Subject to the exceptions contained in this Section, “Confidential Information” shall mean all information: (a), including third party information, disclosed by a Party or its Affiliates (the “Disclosing Party”), in whatever tangible form or otherwise, to the receiving Party or its Affiliates (the “Receiving Party”) that is clearly marked “confidential” or with some other proprietary notice, (b) disclosed orally or otherwise in intangible form by the Disclosing Party and designated as confidential or proprietary at the time of the disclosure; and (c) for Creovai , the Creovai Documentation and the Services. Any and all information that Subscriber provides will remain confidential and Creovai may only provide access to Communications to third parties acting under the direction of Creovai in order to fulfill the foregoing use of the Communications, pursuant to confidentiality agreements, or to meet legal or regulatory requirements, such as under a court order or to a government institution if required or authorized by law. Creovai will not use the names of individuals and companies to contact anyone for any reason.
Notwithstanding the above, information shall not be deemed Confidential Information to the extent that it: (i) was generally known and available in the public domain at the time it was disclosed or subsequently becomes generally known and available in the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party at the time of disclosure without any obligation of confidentiality; (iii) is disclosed with the prior written approval of the Disclosing Party; or (iv) was independently developed by the Receiving Party without any use of the Confidential Information of the Disclosing Party. The obligation not to use or disclose Confidential Information will remain in effect until one of these exceptions occurs.
11.2. Permitted Disclosure. Notwithstanding any other provision of this TOS, disclosure of Confidential Information shall not be precluded if such disclosure: (a) is in response to a valid order of a court or other governmental body, provided, however, that the responding Party shall first have given notice to the other Party hereto and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; (b) is otherwise required by law; or (c) is otherwise necessary to establish rights or enforce obligations under this TOS, but only to the extent that any such disclosure is necessary.
11.3 Use and Obligations. The Receiving Party will not use the Disclosing Party’s Confidential Information for purposes other than as provided in this TOS. The Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, disclosure, or publication of the Confidential Information to third parties as the Receiving Party uses to protect its own like Confidential Information of a like nature. Confidential Information received by a Receiving Party hereto may be disclosed to and used by such Receiving Party’s employees, agents and contractors in accordance with the terms and conditions of this TOS, and each Party shall be liable for any act or omission by its Affiliates, and its and their respective employees, agents and contractors, which, if performed or omitted by such Party, would be a breach of this TOS. Each Party agrees that its Affiliates, and its and their respective employees, agents, and contractors, shall be bound by the terms of an agreement protecting against unauthorized use or disclosure of Confidential Information that is at least as protective of the Disclosing Party’s rights as this TOS. No Confidential Information shall be disclosed to any person who does not have a need for such information.
11.4. Return of Confidential Information. The Receiving Party shall return to the Disclosing Party, or destroy, all Confidential Information of the Disclosing Party in tangible form: (i) upon the written request of the Disclosing Party; or (ii) upon the expiration or termination of this TOS, whichever comes first. In both cases, the Receiving Party shall, upon request, promptly certify in writing that it has complied with the obligations of this Section. Notwithstanding the foregoing, each Party may retain a copy of the Confidential Information in electronic format in accordance with its corporate security and/or disaster recovery procedures.
11.5 Publicity. Subscriber agrees that Creovai may identify Subscriber as a customer publicly, and use Subscriber’s name, logo, and a description of Subscriber’s use case(s) in Creovai ’s marketing materials and website, subject to Subscriber’s standard trademark usage guidelines provided to Creovai from time-to-time. The Parties may mutually agree to a press release announcing this Agreement to be issued at a mutually agreed upon time. Creovai will not issue a press release without Subscriber’s prior consent. Either Party may refer to statements made in such press release in subsequent marketing materials and advertisements.
12. GENERAL PROVISIONS
12.1. Survival. Notwithstanding anything to the contrary: Sections 1 (Definitions), Section 5.2 (Creovai Platform), 6 (Information Security, Data Privacy and Compliance), Sections 9 through 12, including all payment obligations incurred prior to or on expiration or termination, shall survive termination or expiration of this TOS.
12.2. Suspension of Services. If: (a) Creovai determines that disruptions to the Services are being caused by Subscriber misuse and such misuse is not cured within 5 business days after receiving written notice from Creovai specifically describing such misuse; (b) unlawful activities are occurring and such actions may result in liability on the part of Creovai ; (c) Creovai is prevented from providing the Services by any governmental order, direction of any Governmental Authority, or order of a court of competent jurisdiction; (d) Subscriber has failed to suspend the provision of the Services as required by any Governmental Authority or by an order of a court of competent jurisdiction, or (e) overdue amounts are not paid within fifteen (15) days of written demand, then Creovai may suspend the applicable Services immediately.
12.3. Assignment. Subscriber shall not assign or otherwise transfer its rights, obligations or remedies under this TOS, in whole or in part, to a third party unless such assignment is approved in writing by Creovai, such approval not to be unreasonably withheld or delayed. Notwithstanding the foregoing, Subscriber may assign its rights hereunder in their entirety pursuant to: (i) a merger with; (ii) the sale of substantially all of its assets to; or (iii) a consolidation with a third party; provided (a) Subscriber provides Creovai with prompt written notice of such sale, merger or consolidation, (b) the assignee agrees to be bound by all terms and conditions set forth by this TOS, and (c) the assignee is not a competitor of Creovai . Creovai shall be free to assign or otherwise transfer its rights and obligations under this TOS, in whole or in part, to a third party, provided that Creovai provides Subscriber with prompt written notice of the assignment.
12.4. Force Majeure. Except for payment obligations, nonperformance is excused if performance is made impossible by events beyond the Party’s control, such as strikes, fires, floods, acts of God, government actions, terrorism, war, supplier failures, or other uncontrollable events not due to the Party’s fault or negligence.
12.5. Notices. All notices hereunder shall be sent by the notifying Party, in writing, to the other Party at its address set forth above (or such other address as they may communicate to the notifying Party in writing), to the attention of: Creovai– Legal Department and by email (legal@Creovai.com). Notice shall be deemed delivered and effective: (i) when delivered personally, or (ii) five (5) days after posting when sent by certified mail (return receipt requested), or (iii) one (1) day after posting when sent by reputable private overnight courier (e.g., DHL, Federal Express, etc.).
12.6. Relationship Between the Parties. In all matters relating to the Subscription Order Form, any SOW and this TOS, Subscriber and Creovai shall act as independent contractors. Except as may be otherwise expressly permitted hereunder, neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity. Creovai shall at all times have the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be performed by Creovai hereunder unless otherwise provided herein. Creovai shall, at all times, be responsible for the compliance of its third parties involved in the delivery of the services with the terms and conditions of this TOS. Nothing in this TOS shall be construed to create any contractual relationship between Subscriber and any such third party, nor any obligation on the part of Subscriber, to pay or to ensure the payment of any money due any such third party.
12.7. Governing Law. This TOS shall be governed by:
- For all Subscribers based in the U.K. and Europe: the laws of England and Wales shall govern and control the SA, and the Parties irrevocably agree to the exclusive jurisdiction of the courts of England and Wales.
- For all other Subscribers: the State of Delaware, USA, without regard to the choice of law rules, and Subscriber hereby submits to the jurisdiction of the federal and state courts located in the State of Delaware and the applicable service of process. Each party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
12.8. Injunctive Relief. Each Party recognizes and acknowledges that any use or disclosure of Confidential Information by the receiving Party in a manner inconsistent with the provisions of this TOS may cause irreparable damage to the disclosing Party for which remedies other than injunctive relief may be inadequate, and the receiving Party agrees that in any request by the disclosing Party to a court of competent jurisdiction for injunctive or other equitable relief seeking to restrain such use or disclosure, the receiving Party will not maintain that such remedy is not appropriate under the circumstances. The Parties further agree that in the event such equitable relief is granted in the United States, they will not object to courts in other jurisdictions granting provisional remedies enforcing such United States judgments.
12.9. Partial Invalidity; Waiver. If any provision of this TOS or the application thereof to any Party or circumstances shall be declared void, illegal or unenforceable, the remainder of this TOS shall be valid and enforceable to the extent permitted by applicable law. In such event the Party shall make reasonable efforts to replace the invalid or unenforceable provision by a provision that, to the extent permitted by applicable law, achieves the purposes intended under the invalid or unenforceable provision. Any deviation by either Party from the terms and conditions required under applicable laws, rules and regulations shall not be considered a breach of this TOS. No failure of either Party to exercise any power or right given either Party hereunder or to insist upon strict compliance by either Party with its obligations hereunder, and no custom or practice of the Party at variance with the terms hereof shall constitute a waiver of either Party’s right to demand exact compliance with the terms of this TOS.
12.10. Entire Agreement; Headings; Counterparts. This TOS, all Statements of Work and SAs issued hereunder, and the exhibits attached thereto, constitute the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements, and undertakings between the Parties. No addition to or modification of any provision of this TOS shall be binding upon the Parties unless made by a written instrument signed by a duly authorized representative of each of the Parties. The headings to the sections of this TOS are for ease of reference only and shall not affect the interpretation or construction of this TOS.
12.11. Export Controls; Government Use. Subscriber will comply with all applicable export and import laws and regulations and, unless authorized by applicable governmental license or regulation, not directly or indirectly export or re-export any technical information or software subject to this TOS to any prohibited destination. If software or services are being acquired by or on behalf of the U.S. Government or by a U.S Government prime contractor or subcontractor (at any tier), the software, services and related documentation are “commercial items” as that term is defined at 48 C.F.R. 2.101. The software and documentation consist of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the software and documentation with only those rights set forth herein.