Aboutly Terms and Conditions

These Aboutly Terms and Conditions together with the corresponding Services Order Form (collectively, the “Agreement”) is between Aboutly and Client. Capitalized terms used in these Terms and Conditions and not otherwise defined herein shall have the same meaning as set forth in the Services Order Form. Aboutly IS WILLING TO PROVIDE THE SERVICES, INCLUDING LICENSING THE PLATFORM, TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THESE TERMS AND CONDITIONS. BEFORE SIGNING THE SERVICES ORDER FORM, CAREFULLY READ THESE TERMS AND CONDITIONS, BY SIGNING, CLIENT IS CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. CLIENT’S USE OF THE SERVICES INDICATES CLIENT’S ASSENT TO BE BOUND BY THESE TERMS AND CONDITIONS.

1. Definitions.

1.1.  “Aggregated Data” means data and information related to Client’s use of the Services that is used by Aboutly in an aggregate and/or anonymized manner, including to compile statistical and performance information related to the Services and including deidentified Neural Network Mapping (NNM) information derived from Aboutly assessments. 1.2.  “Aboutly IP” means the Services, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Aboutly IP includes Aggregated Data and any information, data, algorithms, assessments, or other content derived from Aboutly’s monitoring of Client’s access to or use of the Services, but does not include Client Data. 1.3.  “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Platform under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Platform has been purchased hereunder. 1.4.  “Client Data” means, other than Aggregated Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services. 1.5.  “Client Report” means a report showing NNM profiles or resulting analysis for relevant End-Users based on data from any completed assessment(s), which report is generated by or through the Platform. 1.6. “Documentation” means Aboutly’s user manuals and guides relating to the Services provided by Aboutly to Client either electronically or in hard copy form. 1.7.  “End-Users” means Client’s Clients, employees, contractors, or others who are end-users of the Services. 1.8.  “Assessment Services” means the NNM, Training and Analysis offerings described in Exhibit A. 1.9.  “Platform” means the software-as-a-service offering described in the Services Order Form. 1.10.  “Services” means, collectively, the Platform and the Assessment Services. 1.11. “Services Order Form” means the written agreement, contract, email confirmation, etc between Aboutly and Client where the Services, Term, Fees, and miscellaneous agreements are outlined.  

2. Access and Use.

2.1.  Provision of Access. Subject to and conditioned on Client’s payment of Fees and compliance with all other terms and conditions of this Agreement, Aboutly hereby grants Client a non-exclusive, non-transferable (except in compliance with Section 15.4) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Client’s use will not exceed the parameters of the Platform Plan and Credit Plan as set forth in the Services Order Form, including, without limitation, the total number of Authorized Users, trainings, and NNMs referenced therein, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. 2.2.  Documentation License. Subject to the terms and conditions contained in this Agreement, Aboutly hereby grants to Client a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.4) license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services. 2.3.  Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. 2.4.  Reservation of Rights. Aboutly reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Aboutly IP. 2.5.  Suspension. Notwithstanding anything to the contrary in this Agreement, Aboutly may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if: (i) Aboutly reasonably determines that (A) there is a threat or attack on any of the Aboutly IP; (B) Client’s or any Authorized User’s use of the Aboutly IP disrupts or poses a security risk to the Aboutly IP or to any other Client or vendor of Aboutly; (C) Client, or any Authorized User, is using the Aboutly IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Aboutly’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) any vendor of Aboutly has suspended or terminated Aboutly’s access to or use of any third-party services or products required to enable Client to access the Services; or (iii) in accordance with Section 6.1 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Aboutly shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. Aboutly shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Aboutly will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension. 2.6.  Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Aboutly may monitor Client’s use of the Services and collect and compile Aggregated Data. As between Aboutly and Client, all right, title, and interest in Aggregated Data, and all intellectual property rights therein, belong to and are retained solely by Aboutly. Client acknowledges that Aboutly may compile Aggregated Data based on Client Data. Client agrees that Aboutly may (i) make Aggregated Data publicly available in compliance with applicable law, and (ii) use Aggregated Data to the extent and in the manner permitted under applicable law. 2.7.  Branded Platform. Aboutly hereby agrees to brand the Platform with Client’s name and logo as reasonably requested by Client and as further detailed in the Services Order Form.  

3. NNM Credits and Assessment Services.

3.1  Aboutly will sell to Client the NNM Credits specified in the Services Order Form in connection with Aboutly’s provided Assessment Services. Each credit gains access to one NNM interview and analysis, and is deducted upon each interview being performed. 3.2.  Interview Recordings will be retained for a period of time detailed in Exhibit A. 3.3.  Trainings and consultations will be performed in accordance with the Services Order Form and Exhibit A.    

4. Client Responsibilities.

4.1.  General. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.  

5. Support. The rights granted hereunder entitle Client to the support services as described in the Services Order Form.

 

6. Fees and Payment.

6.1.  Fees. Client shall pay Aboutly the fees (“Fees”) as set forth in the Services Order Form Attachment 1 without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the Services Order Form. If Client fails to make any payment when due, without limiting Aboutly’s other rights and remedies: (i) Aboutly may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Client shall reimburse Aboutly for all costs incurred by Aboutly in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Aboutly may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. (iv) Aboutly may at it’s sole discretion attempt to bill Client using any payment method on file after 30 days of delinquency the pro-rata amount due based on the total Fee over the total Term length. 6.2.  Payment Terms. Client agrees that on the due date of any amount due under this Agreement, Aboutly may initiate: (i) an automated clearing house (ACH) debit entry or debit card payment from the checking or savings account specified by Client in Aboutly’s billing system, or (ii) a charge to a credit card specified by Client in Aboutly’s billing system. Client agrees to provide to Aboutly, and maintain throughout the Term, accurate and current billing information, including without limitation ACH and credit card information.   6.3.  Taxes. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Aboutly’s income.  

7. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

 

8. Intellectual Property Ownership; Feedback.

8.1.  Aboutly IP. Client acknowledges that, as between Client and Aboutly, Aboutly owns all right, title, and interest, including all intellectual property rights, in and to the Aboutly IP. 8.2.  Client Data. Aboutly acknowledges that, as between Aboutly and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Aboutly a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Aboutly to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Data. 8.3.  Feedback. If Client or any of its employees or contractors sends or transmits any communications or materials to Aboutly by mail, email, telephone, or otherwise, suggesting or recommending changes to the Aboutly IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Aboutly is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby assigns to Aboutly on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Aboutly is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Aboutly is not required to use any Feedback.  

10. Personal

10.1.  As used in this Section 10, the terms “Controller”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “Process”, “Processor” and “Subcontractor” shall have the same meanings as in the EU General Data Protection Regulation 2016/679 (“GDPR”), and their cognate terms shall be construed accordingly. 10.2.  Aboutly shall process Personal Data of End-Users solely on behalf of Client for the purpose of providing the Services and as expressly authorized under this Agreement, and not for any other purpose or in any other manner, unless specifically instructed by Client in writing to do so, or as required by applicable law. When Aboutly Processes Personal Data for or on behalf of Client, Aboutly agrees: 10.2.1.  Not to disclose or transfer Personal Data to any third Party without Client’s prior express written consent, except where such disclosure or transfer is: (A) to a subcontractor that, prior to such disclosure, has (1) agreed by written contract to be bound by obligations no less onerous than the obligations set out in this Agreement, and (2) undergone a thorough assessment for compliance with these obligations conducted by Aboutly and agreed to be assessed periodically by Aboutly; or (B) to an affiliate, in which case Aboutly will require the affiliate to provide at least the same level of protection for the Personal Data as is required by Aboutly under this Section; or (C) required by applicable law. 10.2.2.  To notify Client without undue delay following Aboutly’s receipt of requests from individuals exercising rights under the GDPR or other data protection laws applicable to Client (such as rights to rectify, erase or block Personal Data) relating to Personal Data that Aboutly Processes for or on behalf of Client. By appropriate technical and organizational measures, insofar as this is possible, taking into account the nature of the Processing, Aboutly agrees to assist Client in fulfilling its obligations to respond to such communications and comply with applicable law. 10.2.3. To take appropriate technical and organizational security measures to adequately protect Client’s and its Personal Data of End-Users against misuse and loss in accordance with this Agreement and applicable law. 10.2.4.  To regularly train personnel responsible for processing Personal Data of End-Users about the obligations set forth in this Agreement, to provide an appropriate level of supervision and guidance to such personnel (including background checks where permitted by law), and to enforce disciplinary policies for personnel who fail to comply with those obligations; 10.3.  Client represents and warrants to Aboutly that it has obtained or established, or shall have obtained or established prior to any Processing of Personal Data under this Agreement, all rights or lawful basis reasonably required to Process, and to authorize Aboutly to Process on Client’s behalf, Personal Data of End-Users as contemplated by this Agreement. 10.4.  Aboutly shall, without undue delay, inform Client in the event of any actual or reasonably suspected Personal Data Breach that may involve Personal Data of End-Users. 10.5.  Aboutly shall maintain and update at least annually a Personal Data Breach incident response plan that complies in all respects with applicable laws and industry best practices for companies Processing the types of Personal Data that Aboutly will Process in connection with the applicable Order. 10.6.  Retention and Return of Personal Data. Upon termination or expiration of this Agreement, Aboutly shall, consistent with Client’s directions, return, delete or destroy all Personal Data that Aboutly obtains in connection with this Agreement, including all originals and copies of such Personal Data in any medium, and any materials derived from or incorporating such Personal Data, except that this requirement shall not apply to the extent Aboutly is required by applicable law to retain some or all of the Personal Data, or to Personal Data it has archived on back-up systems, which Personal Data Aboutly shall securely protect from any further processing and eventually delete in accordance with Aboutly’s deletion policies, except to the extent required by applicable law.  

11. Limited Warranty and Warranty Disclaimer. THE ABOUTLY IP IS PROVIDED “AS IS” AND ABOUTLY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ABOUTLY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ABOUTLY MAKES NO WARRANTY OF ANY KIND THAT THE ABOUTLY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

 

12. Indemnification.

12.1.  Aboutly Indemnification. 12.1.1.  Aboutly shall indemnify, defend, and hold harmless Client from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Client promptly notifies Aboutly in writing of the claim, cooperates with Aboutly, and allows Aboutly sole authority to control the defense and settlement of such claim. 12.1.2.  If such a claim is made or appears possible, Client agrees to permit Aboutly, at Aboutly’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue use. If Aboutly determines that neither alternative is reasonably available, Aboutly may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. 12.1.3.  This Section 12.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Aboutly or authorized by Aboutly in writing; (B) modifications to the Services not made by Aboutly; or (C) Client Data. 12.2.  Client Indemnification. Client shall indemnify, hold harmless, and, at Aboutly’s option, defend Aboutly from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Aboutly or authorized by Aboutly in writing; or (iv) modifications to the Services not made by Aboutly, provided that Client may not settle any Third-Party Claim against Aboutly unless Aboutly consents to such settlement, and further provided that Aboutly will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 12.3.  Sole Remedy. THIS SECTION 12 SETS FORTH CLIENT’S SOLE REMEDIES AND ABOUTLY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL ABOUTLY’S LIABILITY UNDER THIS SECTION 12 EXCEED THE LIMITATION OF LIABILITY AS SET FORTH IN SECTION 13 BELOW.  

13. Limitations of Liability. IN NO EVENT WILL ABOUTLY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ABOUTLY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ABOUTLY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ABOUTLY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

14. Term and Termination.

14.1.  Term. The Term of this Agreement is as set forth in the Services Order Form. 14.2.  Termination. In addition; 14.2.2.  Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; 14.2.3.  Either Party may terminate this Agreement without cause upon thirty (30) days prior written notice to the other Party (subject to the Early Termination Fee referenced in Section 14.3 below); or 14.2.4.  Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 14.3  Effect of Expiration or Termination. 14.3.1.  Except as permitted in Section 14.3.2 below, upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the Aboutly IP and, without limiting Client’s obligations under Section 7, Client shall delete, destroy, or return all copies of the Aboutly IP and certify in writing to the Aboutly that the Aboutly IP has been deleted or destroyed. 14.3.2.  Provided this Agreement is not terminated by Aboutly for cause, upon expiration or earlier termination of this Agreement, Aboutly will provide Client with access to the Platform for fifteen (15) calendar days (the “Sunset Period”) following the date of termination or expiration, solely for Client to export its Client Data. Client shall not submit any new NNMs, generate any new Client Reports, or otherwise use the Platform in any other way during the Sunset Period. 14.3.3.  No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund. 14.3.4.  If Client terminates this Agreement without cause pursuant to Section 14.2.3, Client shall pay the Early Termination Fee to Aboutly upon termination. The “Early Termination Fee” means all Fees that would have been payable to Aboutly for the remainder of the then-current Term. 14.4.  Survival. This Section 14.4 and Sections 1, 5-13, 14.3 and 15 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.  

15. Miscellaneous.

15.1.  Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Services Order Forms and Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. 15.2.  Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. 15.3.  Force Majeure. In no event shall Aboutly be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond Aboutly’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo. 15.4.  Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 15.5.  Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 15.6.  Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. 15.7.  Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Aboutly. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 15.8.  Export Regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Client Data outside the US. 15.9.  Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Client, Section 2.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.  

Exhibit A

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.  

1. Assessment Services

Aboutly will provide Neural Network Mapping (NNM) and related trainings for Client which includes interviews, analysis, report generation, trainings, and miscellaneous consultation to Client. Accordingly, Aboutly will provide Client with the following detailed services as part of the Assessment Services:

1. Interview 
2. Client or End-User will book a recorded interview with Aboutly using an Aboutly provided scheduling link.
3. Each single interview performed shall constitute a separate use of NNM Credit(s), reducing Client’s Credit Balance in the amount according to the Services Order Form Attachment 1.
4. Analysis
5. Aboutly will perform an NNM analysis on the recording in accordance with Aboutly’s optimized workflows and SOP’s.
6. Aboutly provides a multi-tier quality assurance process to optimize for accuracy with each NNM.
7. If one or more parts of an NNM are unable to be performed for any reason (“Failed Analysis”), Aboutly will deliver a notification of Failed Analysis via Email/API. Aboutly will provide a scheduling link such that the Client or End-User will be able to book a new recorded interview. Failed Analysis will be investigated on a case by case basis. If the cause of failure cannot be determined to be attributed to Aboutly, Client will bear the cost of the repeat interviews and analysis.
8. Failed Analysis costs covered by Aboutly are defined as human error by Aboutly personnel, and/or Aboutly contracted or provided software malfunctions not covered by relevant third party service agreements, such that all parts of the interview are not recorded and/or stored for analysis.
9. Failed Analysis costs covered by Aboutly are defined as NNMs that pass through its analysis and quality assurance, that later are found to contain errors attributable to a failure of this process.
10. NNM Profile Data Delivery
11. Client will receive the NNM profile data via the Aboutly Platform for the purpose of Client Report generation.
12. *Aboutly does not guarantee that data from all desired NNM profile nodes will be analyzed and reported for all assessments. Inclusion of profile nodes depend on the specifics as outlined in the Services Order Form. From time-to-time, Aboutly may introduce new profile nodes or new product offerings into Client Reports which Client may not qualify to receive under a preexisting Services Order Form.
13. Data Storage
14. The interview recordings will be kept in secure digital storage, confidential from all parties outside Aboutly, except as required by law. Aboutly reserves the right to delete all records of the recording after a period of 6 months following the date of interview.

 

5. Training and Consultation
6. Client will receive individual and/or group trainings in accordance with the Services Order Form. These may include online or in person instruction in NNM theory, interpretation, and application, coaching, or other miscellaneous consultations services.
7. Client will view during training and receive relevant training Documentation to aid in understanding and retention of NNM theory, interpretation, and application, coaching, or other miscellaneous consultations services.
8. Client may receive direct consultation from Aboutly trainers/coaches or other personnel as it relates to NNM theory, interpretation, and application with the intent to provide general advice in business, personal, or other dealings. [Insert legal disclaimer??]

 

2. Turnaround Time

Aboutly shall with best efforts attempt to process an NNM completely (from receipt of interview recording through the upload of final NNM profile data to the Platform) to within a period of 1-3 business days, and guarantees completion of this process within 7 business days.  

3. Client Responsibilities

Client will be responsible for maintaining certain business practices, systems, applications, and providing Aboutly the following information:

1. Credit Usage Forecast
2. Client will provide to the best of their ability an estimate of NNM Credit usage and timing for the purpose of Aboutly providing adequate interview and analysis capacity to meet the Turnaround Time.
3. Point of Contact
4. Client and Aboutly will each provide a designated point of contact as a liaison for all Aboutly-associated work before the start of work.
5. Date Delivery System Maintenance
6. Aboutly will not be responsible for delays in reporting or data delivery due to malfunctions or errors of systems, applications, or personnel maintained by Client.
7. Client will inform Aboutly via email or phone, of any and all issues occurring to systems, applications, or personnel maintained by Client that may affect the exchange of information, reporting, or data delivery between Client and Aboutly.