These Terms and Conditions (this “Agreement”) govern the purchase, access and use of Assembli’s Products by the Customer through Assembli’s website or other platforms. This Agreement applies to Customer’s prior, current and future access and use of Assembli’s Products.

By accessing or using Assembli’s Products, Customer acknowledges and agrees to be bound by the terms of this Agreement. 

This Agreement shall be effective on the earliest of (a) the date Customer clicks a button indicating its agreement with the terms of this Agreement, (b) the date Customer enters into an Order incorporating this Agreement, or (c) Customer’s use of Assembli’s Products (the “Effective Date”).

Assembli reserves the right to modify this Agreement from time to time by posting a modified version on its website, with such changes becoming effective when Assembli posts the modified Agreement. Each time the Customer uses the Products, the then-current version of the Agreement will apply. If Customer uses the Products after a modification of this Agreement, Customer will be bound by the terms of this Agreement as modified. It is the Customer’s responsibility to check this Agreement periodically for any changes. 

1. Definitions

“Affiliate” means any entity controlled, directly or indirectly, by, under common control with, or controlling, a party, and specifically includes without limitation, subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control. For the purposes of this definition, “control” means the power to direct, or cause the direction of, the management and policies of such an entity whether by contract, law, or ownership of the majority of the voting shares or assets of another entity.

“Aggregated Data” means Customer Data that (i) has been anonymized and cannot be associated with any person or entity, (ii) is combined with the data of other customers or additional data sources, and (iii) is presented in such a way that Customer’s or any Authorized User’s identity cannot be reasonably derived.

“Assembli” means Assembli, Inc., its Affiliates and its and their successors and assigns.

“Assembli Materials” means all Assembli proprietary materials, Intellectual Property Rights for all Products and Documentation, Assembli’s processes and methods, and/or materials distributed by Assembli during any presentations, proof of concepts, or demonstrations of the Products.

“Authorized User” means an employee, agent, contractor, or other third party authorized by Customer and/or its Affiliates to access, use, download, deploy, or install the Products.

“Customer Data” means all data or information submitted by or on behalf of Customer to the Products.

“Deployment Services” means the deployment and related services for the Products provided by Assembli to Customer as described in the Order.

“Documentation” means the documentation and usage guidelines for the Products, as updated from time to time by Assembli.

“Fees” means any fees paid or to be paid for Products under an Order.

“Force Majeure Event” means any circumstances which are unforeseeable, and beyond the reasonable control of the party affected, including but not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider or hosting facility failures or delays, hardware, software or power systems not provided by Assembli, or acts undertaken by third parties, including without limitation denial of service attacks.

“Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, in any state, country, or jurisdiction.

“Order” means a written order form/sales proposal, purchase order, or similar ordering document for Products submitted to, and approved by, Assembli.

“Products” means, collectively, the Assembli SaaS, Software, Deployment Services, and Support Services, including all Upgrades.

“SaaS” means the subscription cloud-based service provided by Assembli for the Subscription Term set forth in the Order.

“SLAs” means the Service Level Agreements provided by Assembli for each applicable Product, as set forth in Exhibit A.

“Software” means any Assembli software, utility, tool or other computer or program code provided directly or indirectly to Customer in object (binary) code only, as well as any copies (whether complete or partial) made by or on Customer’s behalf. The term “Software” also includes any updates, upgrades or other new features, functionality or enhancements to the Software made available directly or indirectly to Customer.

“Subscription Term” means the Initial Subscription Term and any and all Renewal Subscription Terms (as defined in Section 12.1), collectively.

“Support Services” means the support services provided by Assembli with respect to each applicable Product, as set forth in Exhibit B.

“Upgrades” means all cloud wide modifications, enhancements and corrections to the Products made by Assembli, including (i) corrections of failures to conform to or to operate in accordance with the Documentation; (ii) temporary and permanent error corrections delivered as part of the Support Services; and (iii) all additions, updates, new versions and releases, and new features, and changes made by Assembli in response to legal, technological or other developments. “Upgrades” does not include any additional features or enhancements made available to customers by Assembli for an additional cost.

2. Orders
   
   

   2.1 Governing Terms. Customer and its Affiliates may purchase Products through an Order.  All Orders and Customer’s access and use of the Products will be governed by the terms and conditions in this Agreement and the Documentation. If there is any inconsistency between the parts of this Agreement, the Documentation or the Order, the terms of the Order shall apply. Where a Customer Affiliate is named in an Order, that Order will create a separate agreement between that Affiliate and Assembli, incorporating the terms of this Agreement with the Affiliate deemed “Customer.” Assembli will not be obligated to provide any Products to Customer or its Affiliate(s) until Assembli receives a valid Order for such Products. 

   2.2 Non-Reliance. Customer and its Affiliates acknowledge and agree that their purchase of any Products is not contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written statements made by Assembli with respect to any future functionality or features.

   
   

3. Payment

   3.1 Fees and payment terms for any Products or services provided under this Agreement shall be set forth in the Order. 

   3.2 Unpaid Amounts. The fee shall be due and payable within thirty (30) calendar days of receipt of invoice.  In the event the fee is not timely paid, Assembli reserves the right to terminate this Agreement with five (5) calendar days’ prior written notice to Customer. Assembli may charge interest computed at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is lower, on any amounts due hereunder that are remitted after the due date.  Subscriber shall reimburse the Company for all costs of collection in seeking delinquent or unpaid fees, including reasonable attorneys’ fees and costs. 

   3.3 Taxes. Any fees charged to Customer are exclusive of taxes. Except for those taxes based on Aseembli’s net income, Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. If any withholding is required by law, Customer will pay Assembli any additional amounts necessary to ensure that the net amount that Assembli receives, after any such withholding, equals the amount Assembli would have received if no withholding had been applied. Upon request, Customer will provide documentation showing that the withheld amounts have been paid to the relevant taxing authority. Assembli’s failure to charge appropriate tax due to incomplete or incorrect information provided by Customer will not relieve Customer of its obligations under this Section 3.3. If Customer is exempt from certain taxes, Customer will provide proof of such exemption to Assembli without undue delay upon execution of the applicable Order.

   
   
   

4. Subscription Rights

   4.1 Subscription Rights. Subject to the terms and conditions in this Agreement, Assembli grants Customer and its Affiliates a limited, non-transferable, non-assignable (except as expressly provided herein), non-exclusive right to access and use the Products, and to permit their Authorized Users to access and use the Products solely for the internal business purposes of Customer and its Affiliates during the Subscription Term in accordance with the Order. 

   4.2 Access and Use of Products. Customer agrees to access and use the Products in accordance with this Agreement and the applicable Documentation, including any relevant Product usage guidelines. Customer and Assembli agree to work together in good faith to promptly address and resolve any unauthorized access or use of the Products by Customer.

   
   

5. Intellectual Property Rights

   5.1 All rights and title in and to the Products, Assembli Materials and Documentation, including all Intellectual Property Rights inherent therein, belong exclusively to Assembli and its licensors.  No rights are granted to Customer other than as expressly set forth in this Agreement. 

   5.2 All rights and title in and to the Customer Data, including all Intellectual Property Rights inherent therein, belong exclusively to Customer.  Customer grants to Assembli a nonexclusive, worldwide, perpetual, royalty free license to use (including in accordance with Section 9.1), distribute, sublicense or sell the Customer Data, or to compile such data with other data, provided that Assembli does not disclose that Customer is the source of such data.  No rights are granted to Assembli other than as expressly set forth in this Agreement.  

   
   

6. Restrictions

   6.1 Customer shall not and shall not allow or permit any third party to: 

   a) modify, copy, display, republish or create derivative works based on the Products or Assembli Materials;

   b) reverse engineer the Products; 

   c) access or use the Products to build a competitive product or service, or copy any ideas, features, functions or graphics of the Products; 

   d) use the Products in any way prohibited by applicable law or that would cause either party to violate applicable law including but not limited to: (i) sending spam or other duplicative or unsolicited messages; (ii) using the Products to send infringing, obscene, threatening, libelous, or other unlawful material; (iii) using the Products to access blocked services; or (iv) uploading to the Products or using the Products to send or store viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; 

   e) use the Products to run automated queries to external websites (because such websites may include Assembli IP addresses in their respective IP block lists); 

   f) interfere with or disrupt the integrity or performance of the Products or the data contained therein; 

   g) attempt to gain unauthorized access to the Products or its related systems or networks; 

   h) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products; 

   i) perform penetration or load testing on the Products or Assembli’s cloud without the prior written consent of Assembli and agreeing to certain conditions and requirements for such penetration or load testing;

   j) without the express prior written consent of Assembli, conduct any public benchmarking or comparative study or analysis involving the Products; and 

   k) access or use the Products from a prohibited location in violation of U.S. trade and economic sanctions, including without limitation, Cuba; Iran; North Korea; Syria; the so-called Donetsk People’s Republic, the Luhansk People’s Republic, or Crimea Regions of Ukraine; or any other country/region that becomes prohibited.

   
   
   

7. Customer Responsibilities

   7.1 Customer agrees and understands that:  

   a) Customer is responsible for all activities of its Authorized Users and for ensuring their compliance with this Agreement; and it shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (ii) prevent unauthorized access to, or use of, the Products, and shall promptly notify Assembli of any such unauthorized access or use; and (iii) comply with all applicable laws and/or regulations when using the Products;

   b) Customer is solely responsible for its Internet connection or any necessary equipment or third party licenses required for Customer to access and use the Products; and

   c) Customer is responsible for supplying Assembli with any technical data and other information and authorizations that Assembli may reasonably request to enable proper delivery of the Products.

   
   
   

8. Assembli Rights

   8.1 Assembli reserves the right to suspend Customer’s access to or download of Products in the event Customer’s use of the Products represents an imminent threat to Assembli’s network, or if directed by a court or competent authority. In such cases, Assembli will (i) suspend such Products only to the extent necessary to prevent any harm or threat to Assembli’s network (for example, blocking offending source IP addresses); (ii) make reasonable efforts to promptly contact Customer and provide an opportunity for Customer to promptly modify its server(s) configuration accordingly and/or work with Customer to promptly resolve the issues causing the suspension of such Products; and (iii) reinstate any suspended Products immediately upon resolution of its issue.

   
   
   

9. Use of Information

   9.1 Without limiting Assembli’s confidentiality and security obligations set forth in this Agreement, Assembli shall have the right to:  

   a) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer relating to the Products without restriction and without obligation to Customer (collectively “Feedback”). Assembli acknowledges that all Feedback is provided “as-is” without warranty of any type; 

   b) use information collected regarding Customer’s use of the Products for the purposes of providing, maintaining, improving, and/or analyzing the Products and complying with all legal or contractual requirements;

   c) make anonymized and/or aggregated content available to its licensors for the purpose of further developing and enhancing the Products; and

   d) develop and commercialize benchmarks, analyses and measures based on Aggregated Data.

   
   
   

10. Warranties

    10.1 Mutual Warranty. Each party represents and warrants that it has the legal power and authority to enter into this Agreement and to perform its obligations hereunder. This includes but is not limited to ensuring that the performance of its obligations will not violate any applicable laws, regulations or any other agreement to which it is bound.

    10.2 SaaS and Software Warranty. Assembli warrants that the SaaS and/or Software will (i) substantially conform to the Documentation; and (ii) be provided in accordance with the SLAs.

    10.3 Deployment Services Warranty. Assembli shall provide the Deployment Services and warrants that the Deployment Services will be performed in a professional manner in accordance with industry standards for like services.

    10.4 Support Services Warranty. Assembli shall provide the Support Services and warrants that the Support Services will be performed in a professional manner and in accordance with industry standards for similar services. However, Assembli does not guarantee that every question or problem will be resolved. Assembli’s obligation to provide Support Services excludes any services related to issues or errors which are not attributable to Assembli or its authorized agents. If, upon investigating the cause of the incident, Assembli determines that there is a defect in the Product, Assembli will provide a remedy in the form of a workaround, or another version of the Product that includes a bug fix for the defect. Customer agrees to provide reasonable support information, such as log files, configuration files and/or error messages, to assist in understanding and resolving the issue. 

    10.5 Warranty Remedies. If Customer believes the warranty in Section 10.2 or 10.3 has been breached, Customer must notify Assembli of the breach no later than thirty (30) days following the date the warranty was allegedly breached, and Assembli shall promptly correct the non-conformity at its own expense if a breach of the relevant warranty occurred. If Customer believes the warranty in Section 10.4 has been breached, Customer must notify Assembli of the breach no later than thirty (30) days following the date the Deployment Services were provided, and Assembli shall promptly correct or re-perform the Deployment Services if a breach of the warranty occurred. Without limiting any Service Credits incurred in the event Assembli does not meet the SLAs, the remedies stated in this Section are the sole remedies, and Assembli’s sole obligation, with respect to Products that fail to comply with the foregoing warranties.

    10.6 Disclaimer of Warranties. Except for the express warranties set forth herein, all Products are provided on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, Assembli expressly disclaims all warranties, conditions, representations and other terms, whether express, implied by common law, statute or otherwise, including without limitation any implied warranty of merchantability, fitness for a particular purpose, accuracy, non-infringement, or that the Products will be uninterrupted, secure, free from errors, defects or viruses. Assembli does not warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss or corruption. Assembli will not be liable for delays, interruptions, service failures or other problems inherent in the use of the Internet and electronic communications, third party platforms or other systems outside the reasonable control of Assembli.

    
    
    

11. Confidential Information

    11.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including, to the extent permitted by applicable law, the terms and conditions of this Agreement (including pricing and other terms reflected in all Orders hereunder), the Customer Data, the Products, the Assembli Materials, Assembli’s security information and reports, and each party’s respective business and marketing plans, technology, and technical information, product designs, and business processes.

    11.2 Exceptions. The obligations in this Section 11 shall not apply to any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (c) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (d) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality.

    11.3 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party may disclose Confidential Information to its employees, Affiliates, consultants, subcontractors, and/or advisors who have a need to know such Confidential Information for the purpose of performing under this Agreement and only to those who are obligated to maintain the confidentiality of such Confidential Information upon terms at least as protective as those contained in this Agreement.

    11.4 Protection. The Receiving Party will use the same level of care and discretion to avoid disclosure, publication, or dissemination of the Disclosing Party’s Confidential Information as it uses with its own similar information that it does not wish to disclose, publish or disseminate, but in no event less than a reasonable degree of care. 

    11.5 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide (i) the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and (ii) reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

    11.6 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) or the Disclosing Party reasonably believes that the Receiving Party may disclose or use any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, or if the Receiving Party is compelled to disclose (or is likely to become compelled to disclose) any Confidential Information of the Disclosing Party pursuant to Section 11.5, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.

    
    
    

12. Term and Termination

    12.1 Agreement Term. This Agreement shall continue in effect for the Subscription Term. The initial term of Customer’s subscription to the Products will begin on the start date set forth in an Order and will continue for the period of time stated therein (“Initial Subscription Term”). Prior to the end of the Initial Subscription Term, the length and pricing for a renewal term may be agreed to (a “Renewal Subscription Term”); otherwise, at the end of the Initial Subscription Term or the then-applicable Renewal Subscription Term, Customer’s subscription will automatically renew for additional one year terms (each, a “Renewal Subscription Term”) at Assembli’s then current Fees for the relevant Product.

    12.2 Termination for Cause. Either party may terminate this Agreement and any Order: (i) upon thirty (30) days written notice if the other party is in material breach of any of this Agreement and  fails to cure such material breach within the notice period; or (ii) if the other party  ceases its business operations or becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

    12.3 Effect of Termination. The following provisions shall survive the termination of this Agreement and all Orders:  Section 3 (Payment), Section 4 (Subscription Rights) other than Section 4.1, Section 5 (Intellectual Property Rights), Section 6 (Restrictions), Section 10.6 (Disclaimer of Warranties), Section 11 (Confidential Information), Section 12.3 (Effect of Termination), Section 13 (Indemnity), Section 14 (Limitation of Liability), Section 15 (Data Protection and Privacy), Section 16 (Export Control) Section 17 (Anti-Corruption), and Section 18 (General Provisions).

    
    
    

13. Indemnity

    13.1 Assembli Indemnity. Assembli shall defend Customer against any third-party claim alleging Customer’s access to, or use of, the Products as permitted hereunder infringes or misappropriates that third party’s valid United States patent, copyright, trademark or trade secret, and Assembli shall, subject to Section 14, at its expense, indemnify Customer for any damages finally awarded against Customer (including reasonable legal fees) or any amounts agreed in settlement by Assembli in connection with such claim.

    13.2 Response to Claims. If the Products, or parts thereof, become, or in Assembli’s opinion may become, the subject of an infringement claim, Assembli may, at its option: (a) procure for Customer the right to continue using the Products as set forth herein; (b) replace or modify the Products to make them non-infringing, provided that such replacement or modification does not compromise Assembli’s obligations under this Agreement; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Assembli in its sole discretion, terminate this Agreement and the applicable Order and refund Customer, on a prorated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term.

    13.3 Indemnity Exclusions. Notwithstanding the foregoing, Assembli will have no liability or obligation under this Section 13 with respect to any claim if such claim is caused in whole or in part by: (i) Customer’s use of a Product not in accordance with the Documentation; (ii) modification of a Product by anyone other than Assembli; (iii) the combination, operation, or use of any Product with any third party hardware or software where the Product would not by itself be infringing absent such combination, operation, or use; or (iv) Customer’s continued use of an infringing version of the Products after Assembli has provided a non-infringing version and notified Customer of its availability. 

    13.4 Customer Indemnity. Customer will defend and indemnify Assembli from and against any claim brought by a third party against Assembli arising from or related to Customer’s violation of Section 6 of this Agreement.

    13.5 Indemnity Procedure. The indemnification obligations in this Section 13 shall be subject to the indemnified party:  (a) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (b) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (c) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.

    13.6 This Section 13 states Assembli’s entire liability and Customer’s sole remedy with respect to any infringement of intellectual property rights by the Products.

    
    
    

14. Limitation of Liability

    14.1 Waiver of Consequential Damages. Neither party will be liable for any lost profits, revenue or savings; lost business opportunities or data; substitute goods or services; or indirect, special, incidental, consequential, punitive or exemplary damages of any kind (including damage to business reputation or goodwill).

    14.2 Limitation of Monetary Damages. Each party’s aggregate liability for all claims arising out of this Agreement and all Orders shall not exceed any actual direct damages incurred by the other party up to the total fees paid and/or payable to Assembli under this Agreement in the twelve (12) months immediately preceding the first event giving rise to liability.

    14.3 Form of Action. The exclusions and limitations in this Section 14 shall apply to the fullest extent permitted by applicable law and shall apply regardless of the form of action, whether arising from breach of contract, misrepresentation, negligence, strict liability, tort, or any other cause of action, even if the other party has been advised in advance of the possibility of such damages or losses, or if such damages or losses were reasonably foreseeable.

    
    
    

15. Data Protection and Privacy

    15.1 Customer acknowledges and agrees to the privacy and security terms of the Privacy Policy located at www.assembli.ai/privacy-policy which is incorporated into this Agreement by reference. 

    
    
    

16. Export Compliance

    16.1 Export Compliance. The Products and other software or components of the Products which Assembli may provide or make available to Customer may be subject to United States export control and economic sanctions laws and other foreign trade controls.  The parties represent that they are in compliance with applicable United States and foreign export controls, economic sanctions, and other trade controls.

    
    
    

17. Anti-Corruption

    17.1 Each party represents and warrants that it will comply with all applicable anti-corruption and anti-bribery laws, including but not limited to the U.S. Foreign Corrupt Practices Act (FCPA), the U.K. Bribery Act, and any other applicable anti-corruption or anti-bribery laws in the jurisdictions in which they operate (collectively, “Anti-Corruption Laws”). Neither party nor its affiliates, employees, agents, or representatives shall, directly or indirectly, offer, give, or promise to give any bribe, kickback, or other corrupt payment, or take any other action in violation of Anti-Corruption Laws, including, but not limited to: (i) offering, giving, or authorizing the payment or promise of money or anything of value to any government official or any person to influence official action or secure an improper advantage; (ii) offering, giving, or authorizing the payment or promise of money or anything of value to any private party in connection with the business of the other party, with the intention of obtaining or retaining business or a business advantage; or (iii) engaging in any conduct that could result in violation of Anti-Corruption Laws. 

    
    
    

18. General Provisions

    18.1 Relationship of the Parties. The parties acknowledge and agree that they are independent contractors and that nothing in this Agreement shall be construed as creating a partnership, joint venture, agency, or employment relationship between them. Neither party shall have any authority to act on behalf of the other party, nor shall either party be deemed an agent, employee, or representative of the other party for any purpose.

    18.2 Notices. Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by a recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices regarding a legal claim. Notices shall be sent to the parties at the address set forth in the Order.

    18.3 Publicity & Use of Customer’s Marks. Assembli shall have the right to use Customer’s name and logo in a factual manner for marketing or promotional purposes on Assembli’s website and in other communication with existing or potential Assembli customers. Customer agrees to reasonably cooperate with Assembli to serve as a reference upon request.

    18.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right, power or privilege under this Agreement shall constitute a waiver of that right or any other right, power or privilege. A waiver of any provision of this Agreement must be in writing and signed by the party granting the waiver.  Except as expressly stated herein, the remedies set forth in this Agreement are cumulative and in addition to, and not exclusive of, any other remedies to a party under any applicable law or in equity.

    18.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that either party may assign this Agreement in its entirety, without the consent of the other party, to (i) an Affiliate; or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 18.5 shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

    18.6 Force Majeure. Neither Party shall be liable for any failure or delay in performing an obligation under this Agreement (other than payment of all outstanding invoices and all other full or partial amounts owed under this Agreement) resulting from a Force Majeure Event. For the avoidance of doubt, Force Majeure Events shall not include: (i) financial distress or the inability of either party to make a profit or avoid a financial loss; (ii) changes in market prices or conditions; or (iii) a party’s financial inability to perform its obligations hereunder. The party affected by a Force Majeure Event shall provide prompt written notice to the other Party of the occurrence of the Force Majeure Event (in reasonable detail) and the expected duration of the event’s effect on the party. A disruption in a party’s performance due to a Force Majeure Event extending beyond sixty (60) calendar days is cause for termination of the Agreement.

    18.7 Beta Access. Customers may be invited to participate in the review and testing of pre-release versions of new tools and service enhancements which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or similar term. Customer acknowledges and understands that its participation in such pre-release testing is not required and is at Customer’s own risk, are made available “as is” basis, and may be subject to additional terms related to their use.

    18.8 Entire Agreement. This Agreement constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement.  

    18.9 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity of the remaining provisions of this Agreement. The parties agree to substitute a valid, legal, and enforceable provision that most closely reflects the intent of the invalid, illegal, or unenforceable provision. The remaining provisions of this Agreement shall continue in full force and effect.

    18.10 Governing Law and Jurisdiction. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflicts of laws rules, and will be subject to the exclusive jurisdiction of the federal and state courts located in New York, New York. Notwithstanding the foregoing, each party reserves the right to file a suit or action in any court of competent jurisdiction as such party deems necessary to protect its Intellectual Property Rights or other proprietary rights. The United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.

EXHIBIT A

Service Level Agreement

Assembli provides the Service Level Agreements and Support Services set forth below, subject to the terms and conditions set forth herein.

1. Definitions for Service Level Agreements

   Any capitalized terms not defined herein shall have the meaning as set forth in the Agreement.

   1.1 “Data Packet” means a unit of data made into a single Internet Protocol (IP) package that travels along a given network path.

   1.2 “Device” means a subscription license for the SaaS for each physical or virtual machine running an operating system on which the agent is installed.

   1.3 “DNS Transaction” means a recursive DNS query sent from Customer through its use of the DNS-Based Guest WiFi Security.

   1.4 “Excluded Applications” means Customer application(s) that are unavailable due to (a) failure by Customer’s network to forward traffic to Assembli; (b) failure by an intermediate ISP (other than Assembli’s direct ISP(s)) to deliver traffic to Assembli; (c) a Customer-implemented policy change; (d) Assembli scheduled maintenance as posted on the Trust Portal; and/or (e) a ZPA Private Service Edge deployed in Customer’s network whereby Assembli has no control of the operation and/or use of the ZPA Private Service Edge.

   1.5 “Excluded ZIA Transactions and Sessions” means Transactions and Sessions that are not processed due to (a) failure by Customer’s network to forward traffic to Assembli; (b) failure by an intermediate ISP (other than Assembli’s direct ISP(s)) to deliver traffic to Assembli; (c) a Customer-implemented policy change that causes Transactions and Sessions to drop; (d) Assembli scheduled maintenance as posted on the Trust Portal; (e) the internet traffic flowing through a ZIA Virtual Service Edge (also referred to as a “VZEN”) which is deployed in Customer’s network whereby Assembli has no access to or control of the operation and/or use of the ZIA Virtual Service Edge; and/or (f) local regulations which prevent Assembli from processing traffic for Authorized Users in certain regions.

   1.6 “Known Virus” means a virus for which, at the time of receipt of content by Assembli a signature has already been made publicly available for a minimum of one (1) hour for configuration by Assembli’s third party commercial scanner.

   1.7 “Location” means a subscription for a specific access point to the Internet in connection with the SaaS.

   1.8 “Qualified DNS Transactions” means the following: (i) the lookup is already cached by Assembli’s recursive DNS server, or if it is not cached, the response time of the authoritative DNS server is not counted as part of the Latency Agreement; and (ii) a reasonable level of service consumption (based on the number of purchased DNS Transactions per Location).

   1.9 “Qualified Transactions and Data Packets” means the following: (i) less than 1 MB HTTP or HTTPS request and response; (ii) not related to streaming applications; (iii) not subject to bandwidth management rules (QoS enforcement); and (iv) a reasonable number of Transactions and Data Packets per Seat (based on Assembli’s cloudwide average).

   1.10 “Seat” means a subscription license for the SaaS for an individual Authorized User.

   1.11 “Service Credits” means the credits incurred as a result of Assembli not meeting the applicable Service Level Agreement, as further outlined below.

   1.12 “Session” means any non-HTTP or non-HTTPS request sent to or from Customer through its use of the SaaS.

   1.13 “Transaction” means an HTTP or HTTPS request sent to or from Customer through its use of the SaaS.

   1.14 “Trust Portal” means the Assembli portal(s) located at https://trust.Assembli.com (Commercial Cloud Offerings) and https://trust.Assembli.us (Government Cloud Offerings) where Assembli posts cloudwide health and maintenance notices.

   1.15 “Workload” means a subscription license of the SaaS for a single cloud workload such as virtual machines, database services, cloud storage, and other similar Infrastructure-as-a-Service (Iaas) and/or Platform-as-a-Service (“PaaS”) resources that Customer utilizes in its public cloud environments.
   
   
   

2. General Provisions for Service Level Agreements

   2.1 In order for any of the Service Level Agreements to apply, (i) Customer must subscribe to the SaaS that provides the applicable Service Level Agreement, (ii) Customer’s network must be properly configured pursuant to the Documentation, including but not limited to being configured on a 24 X 7 X 365 basis in a manner that allows Customer to take advantage of Assembli’s redundant global infrastructure; (iii) for ZPA, at least two (2) Assembli App Connectors are required at each Customer site connecting to the SaaS; and (iv) for ZPA Private Service Edge, to the extent subscribed by Customer, at least two (2) ZPA Private Service Edge are required at each Customer site connecting to the SaaS. The Service Level Agreements do not apply to any errors or diminished performance that result from Customer’s abuse or misuse of the SaaS or other behaviors that violate the Agreement.

   2.2 The SaaS will scan as much of the traffic downloaded as technically possible; however, it may not be possible to scan items that (i) are encrypted, encapsulated, tunneled, compressed, modified from their original form for distribution, (ii) have product license protection, or (iii) are protected by the sender in ways that Assembli cannot inspect (e.g., password protected).  The foregoing items (i) through (iii) are excluded from the Service Level Agreements.

   2.3 The Service Credits set forth in the Service Level Agreements shall be Customer’s sole and exclusive remedy for any failure by Assembli to meet the applicable Service Level Agreement.  To be eligible for a Service Credit, (i) Assembli must have received all owed Fees for Customer; (ii) Customer or Partner must have reported the incident via a support ticket within twenty-four (24) hours from the start of the incident; and (iii) Customer or Partner must request a Service Credit via a support ticket within ten (10) days from the date of the incident giving rise to a Service Credit.  Assembli will research the incident(s) to determine if a Service Level Agreement was not met and provide a response to the Customer no later than ten (10) days after the end of the month in which the incident occurred.  For example, if the incident occurred on November 15th, and a support ticket was raised by Customer or Partner on or before November 25th, Assembli would respond to Customer with the Service Level Agreement calculation by December 10th. Failure to comply with (i) and/or (ii) will forfeit Customer’s right to receive a Service Credit.

   2.4 The dollar value of the Service Credit to be applied to the next invoice will be calculated by converting the Service Credit (i.e., the number of days) into the appropriate dollar number.  For purposes of example only, for a 12-month contract term with a total annual Fee of $500,000, and a Service Credit that was determined to be “3 days,” then Assembli would provide a credit to Customer or Partner equaling $4,109.59 (3 days / 365 days * $500,000) on the customer's next invoice.

   2.5 The aggregate maximum Service Credit that Assembli will issue for failing to meet any Service Level Agreements in a single calendar month will not exceed thirty (30) calendar days’ worth of paid SaaS.

   2.6 Service Credits shall not entitle the Customer to any refund or other payment from Assembli. Service Credits can only be applied against future Fees for the applicable SaaS. For avoidance of doubt, Service Credits do not apply to any SaaS that is provided free-of-charge either (i) for evaluative or proof-of-concept purposes, or (ii) as a part of a bundled SKU (e.g., the free standard ZDX included in certain ZIA and ZPA SKUs).

Service Availability Agreement

The SaaS will be available 100% of the total hours during every month Customer uses the SaaS (the “Assembli Service Availability Agreement”).  Excluded Applications are not factored into the Service Availability computation.

Failure to meet this Assembli Service Availability Agreement results in a Service Credit as follows: