We are excited to have you about to start using our product. Please take the time to read the terms of service in detail and if you have any questions or feedback contact firstname.lastname@example.org.
Updated: May 16, 2023
1.1 Legal Agreement. This Customer Terms of Service Agreement (the “Agreement”) is a legal agreement between you and Autopilot, Inc. (together with our affiliates, the “Company”, “we”, “us” or “our”) setting forth, among other things, the terms and conditions for your use of, access to, downloading of, or procurement of, as the case may be: (i) the Autopilot Operations Assistant, Automations, Personalizer, Approach, Intelligent Recommendations, Autopilot API and Data Platform, Xapix Seller Reporting and other apps or APIs provided or made available by, or obtained from, Xapix or Autopilot (“Plug-in(s)”) and/or (ii) these or other online or offline services performed or made available to you by the Company from time to time, including but not limited to technical and non-technical support, consulting, Autopilot Premium Services (collectively, the “Services”); and/or (iii) your Autopilot or Xapix account (the “Account”); and/or (iv) any related client software including any updates and accompanying written documentation (the “Software”); and/or (v) any website from which any of the Plug-in, Services, or Account are available and/or accessible (the “Website”). Collectively or individually, the Plug-in, Services, Account, Software and Website may be referred to as the “Products”.
1.3 Acceptance. By using, accessing, or downloading the Products, you accept and agree to the provisions of this Agreement without any reservations, modifications, additions or deletions. If you do not agree to any provisions contained in this Agreement, you are not authorized to use the Products. You may be denied access to the Products, with or without notice to you, if you do not comply with any of the provisions of this Agreement.
1.5 Any questions you have regarding this Agreement or its terms should be directed to email@example.com
2.3. e-Commerce Platforms and Children. The Autopilot Products and Services are not designed for, and not intended to support or be used in association with either (i) commercial sales to, or commercial activities with, individuals under the age of 18, or (ii) e-Commerce Platforms that are intended or designed for interacting with individuals under the age of 18. You agree that your e-Commerce Platforms shall not be used in such a manner and that you shall take reasonable technological and administrative steps to avoid such uses.
2.4. Account. To access and use the Services and the Software, you must create an Account with a valid e-mail address. You are responsible for all activities that occur under your Account, regardless of whether the activities are undertaken by you, your employees or a third party. You will contact us immediately if you believe an unauthorized third party may be using your Account or if your Account information is lost or stolen. You may terminate your Account and this Agreement in accordance with the Section titled “Term and Termination”.
2.5. Account Information. In creating your Account, you agree to provide truthful information, including but not limited to a password as well as your name, business address and a valid email address (the “Account Information”). You agree to provide accurate Account Information and to update your Account Information as necessary to keep it accurate. You must provide us with notice to firstname.lastname@example.org if your contact details change. You acknowledge that providing any false information or statement to the Company shall constitute a material breach of this Agreement.
2.6. Support. Support services will only be available to you if you have an active Account with Autopilot. Support services will be provided through Autopilot’s Help Desk portal or by email communication to those email addresses associated with the Account. Requests for support services must be directed to email@example.com
2.7. Administrators. You will be deemed to have taken any action that occurs in association with your Account, and/or any action that you permit, assist or facilitate any person or entity to take related to this Agreement. You are responsible for any individual or entity, including but not limited to your employees, agents, representatives, and permitted contractors (each, an “Administrator”) that directly or indirectly accesses or uses your Account. You will ensure that Administrators comply with your obligations under this Agreement, and that the terms of your agreement with each Administrator are consistent with this Agreement. You are responsible and liable for any act or omission of an Administrator as if committed or omitted by you. If you become aware of any violation of your obligations under this Agreement by an Administrator, you will immediately terminate such Administrators’ access to the Products.
2.8. Third Party Content. The Services may integrate and/or interact with third party services, such as via APIs or browser extensions. For example, the Services may leverage APIs from Amazon.com., Inc., Amazon Services LLC and/or its affiliates ("Amazon") to integrate with and interact with certain Amazon services. The Amazon name and brand is a registered trademark of Amazon. Company has no affiliation, association, endorsement, or sponsorship by Amazon or any other third party services with which it integrates or interacts from time to time (“Third Party Services”). Company makes no claim, representation or warranty of any kind, type or nature concerning Company’ or any User’s compliance with any third party terms of service. It shall be each User’s sole responsibility to analyze and interpret any applicable third party terms of service (such as, without limitation, Amazon, Shopify, Google or Meta terms of service) for such User (collectively, “Third Party Terms”).
Each User is solely responsible for their interpretation of Third Party Terms and their actions relevant to compliance thereof. By using the Services, you hereby release Xapix and its affiliates and waive any and all claims or claim rights that you may have against Xapix and its affiliates, and release and indemnify Xapix and its affiliates against any claims that any third party may have against you, including with respect to your use of any Third Party Services, including if accessed or used via our Services, and with respect to Third Party Terms, applicable privacy policies or any other rules or regulations of such third parties.
Once an account has been connected to Company’s platform (through Autopilot, Xapix Software GmbH or other Company-owned entities), seller-related report data will be synced to Company’s databases on an ongoing basis, regardless of the current subscription type of the Customer, until such time that the Customer revokes API access or that the Customer requests the deletion of their account. The entities such as aggregators or agencies that Company acts on behalf of will receive a time-based access to such data. To revoke access, disable the "Seller Reporting by Xapix" app as a developer application in the "Manage your apps" section of your Amazon Seller Central account.
Without limiting the generality of the foregoing, you acknowledge and agree that in order for the Services to work with certain Third Party Services, such as Amazon’s Marketplace Web Services, you hereby grant us access to your applicable third party account(s), including without limitation your Amazon seller central account for Amazon’s Marketplace Web Services (including but not limited to the Selling Partners API), and consent to give us access to collect and use certain data found therein, including without limitation for purposes of us providing the Services, enhancing our Services, collecting and delivering market insights, predicting outcomes, and other business purposes. Such data may include without limitation sales data and information, pricing, shipping costs, and other similar information, or other information provided for the Services herein. For clarity, this information is not considered confidential information of yours for purposes of this Agreement. You represent and warrant that you have all necessary rights, consents and approvals, to grant us this access and this information for such uses.
You understand that when using the Services, you will be exposed to content from a variety of sources, and that we are not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Company, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Services.
3.1. Modifications to Products. We may change or discontinue any of the Products, add new services or tools that form part of the Products, or add, change or remove features or functionality of the Products from time to time.
4.1. Autopilot Plan. Subscription fees (in US Dollars or in another currency if authorized by Company) together with applicable Taxes (collectively referred to as “Plan Fees”) will be calculated in accordance with the applicable Autopilot Plan associated with your Account. Pricing will be as posted on the eCommerce platform where the Products are installed, subject to any alternative pricing plan agreed to in writing by you and the Company.
4.2. Fees. We will calculate and bill fees (in US Dollars or in another currency if authorized by Company) for the Products (“Plan Fee”) on a 30-day billing cycle, as calculated from the date on which you open an Account or otherwise access or download a Product, or, if you are using or accessing a free trial plan (“Trial”), your Account converts from a Trial to a non-Trial or fee-based status (“Paid Service”), or on a more frequent basis at our sole discretion (each, a “Billing Cycle”). Your first Billing Cycle will begin on the date that your Account is created, unless you are using a Trial, in which case it begins on the date that such Trial converts to a Paid Service, and this day, or the next closest day, of each month will be used as the first day of each following Billing Cycle (for example, if you create your Account on the 5th of January, your Billing Cycle will begin 30 days after and you will be billed every 30 days thereafter).
4.3. Payment. You will pay us the Plan Fees through the eCommerce platform where the Products are installed, by credit card, or, at our sole discretion, by another payment method that we support. All Plan Fees are due and payable in advance, with the first Plan Fee payment due and payable at the time you create your Account or, when your Account is created as part of a Trial Plan, when it converts to a Paid App, and thereafter on the first day of each Billing Cycle. All amounts payable under this Agreement will be made without setoff or counterclaim and without any deduction or withholding. Plan Fees for any new Products or new feature of a Product will be effective when we post updated fees and charges on the Website or to your Account, unless we expressly state otherwise in a notice to you.
4.4. Increases. We may increase the Plan Fees or add new fees and charges for any existing Product by giving you at least 14 days’ advance notice.
4.5. Payment Gateway. Your Autopilot Account must be set up to process payment using a live payment gateway and you must comply with their terms of service. Failure to comply with this Section 4.5 shall result in an immediate suspension of your Account and access to the Products, as well as a material breach of this Agreement.
4.6. Taxes. All Plan Fees and any other related fees and charges payable by you are exclusive of applicable federal, provincial, state or other applicable governmental sales, goods and services, harmonized, VAT or other taxes, duties, fees or charges now in force or enacted in the future (collectively, “Taxes”). You will provide us with any information we reasonably request to determine whether we are obligated to collect certain Taxes, including, but not limited to federal goods and services tax (“GST”), harmonized sales tax (“HST”), provincial sales tax (“PST”), or VAT, from you, including your GST, HST, PST and/or VAT number or other applicable sales or consumption tax number. If any deduction or withholding is required by applicable law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required.
4.7. Other Taxes. You are responsible for all applicable Taxes, including, but not limited to, GST, HST, PST, VAT, and/or State, Provincial, or other local sales taxes, as applicable based on the billing address you provide to us, that arise from or as a result of your use of the Products.
4.8. No Refunds. Subject only to applicable laws which may require otherwise, you acknowledge and agree that the Company does not, and will not under any circumstance be obligated to, provide refunds of any fees or charges (including, but not limited to, Plan Fees) paid by you under this Agreement for use of the Products in accordance with your Autopilot Plan or in connection with any change in your Autopilot Plan.
5.1. Autopilot Intellectual Property. As between you and us, we own and reserve all right, title and interest in and to the Products. You may not use the names, trademarks, logos and graphics files that represent the Products without our written permission. The Products contain copyrighted material, trade secrets and other proprietary material.
5.2. Patent, Copyright, Trademark Notices and Third-Party Software Licenses. The Products and documentation (except for any Third-Party Content) were designed and programmed by the Company and are subject to applicable Copyright law. All rights to such Copyright, and all other intellectual property rights in favor of the Company, are reserved, except as otherwise provided herein. The following are registered and/or unregistered trademarks of the Licensor: Autopilot, other Autopilot trademarks, service marks, graphics, and logos existing now or in the future (collectively, the “Trademarks”). The Products may contain third-party trademarks, service marks, graphics, and logos. You are not granted any right or license with respect to the Trademarks or the trademarks of any third party.
5.3. Data and Databases. The Company owns all data collected using the Products (“Collected Data”), except to the extent that prior existing ownership rights and/or applicable law preclude the Company’s title in such data. The Company owns all data generated, calculated, or derived from all Collected Data and Customer Provided Data (defined below) used by or provided to the Products (“Calculated Data”). Except as may be licensed in Section 6, the Company reserves all of its rights in the Collected and Calculated Data.
6.2. Restrictions. You agree that you will not use the Products in any manner or for any purpose other than as expressly permitted by this Agreement. Specifically, without limiting the foregoing, you agree that you will not, nor will you attempt to: (a) use the Products to reproduce, transmit, display or distribute any material that infringes the intellectual property rights of any third party including any patent, copyright, trademark, service mark, trade secret, or other proprietary right, in any medium or via any method without the Company’s express written permission; (b) use our Products in any way that violates the terms of this Agreement; (c) disassemble, decompile or otherwise reverse-engineer the Products or apply any other process or procedure to derive the source code of any software included in the Products or alter or remove any proprietary rights or copyrights notice or identification which indicates ownership of the Products; (d) copy, alter, modify or create any derivative work of the Products, except as expressly permitted herein; (e) access or use the Products in a way intended to avoid incurring charges, fees or the payment of any applicable Taxes; (f) deliver, disclose or convey to any third party, either directly or indirectly, the contents of the Software, or (g) permit or enable any third party to do any of the foregoing.
6.4. License is Conditional. The Products are owned by the Company and are protected by US, and other foreign intellectual property laws and international treaty provisions. All licenses granted to you in this Agreement are conditional upon your continued compliance with this Agreement, as well as applicable law, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement or of applicable law.
7.1. Acceptable Use Policy. Your use of the Products is also subject to our Acceptable Use Policy, as it may be updated or amended from time to time, which is incorporated by reference into and made a part of this Agreement.
8.1. Service Interruptions. Your access to and use of the Products may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Products for any reason, including as a result of power outages, system failures or other interruptions. In addition, the Company is entitled to suspend access to any portion or all of the Account at any time (i) for scheduled downtime to permit us to conduct maintenance or make modifications to any service or product, which we will endeavor, but shall not be obligated, to schedule during lower-use time periods; and/or (ii) in the event of a denial of service attack or other attack on the Account or any other event that we determine, in our sole discretion, may create a risk to the applicable service or product, to you or to any of our other customers if the service or product were not suspended; and/or (iii) in the event that we determine that any service or product is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons; and/or (iv) any violation of this Agreement (collectively, “Service Suspensions”). THE COMPANY IS NOT RESPONSIBLE IN WAY, OR LIABLE TO YOU OR ANY THIRD PARTY IN ANY WAY, FOR ANY LOSS OR DAMAGE TO YOU RESULTING FROM ANY SERVICE INTERRUPTIONS OR SERVICE SUSPENSIONS, HOWSOEVER THEY MAY BE CAUSED.
8.2. Notice of Interruptions. To the extent we are able, we will endeavor to post updates on the Account, the Website, or our Social Media channels (e.g. Linkedin, Twitter), regarding any Service Suspension and resumption of service following any such suspension.
9.1. Security. You are solely responsible for maintaining the confidentiality of your email and password associated with your Account, for restricting access to your password and to your computer while logged into the Account and for properly configuring and using the Products. You agree to accept responsibility for all activities that occur under your Account.
9.3. Encryption. Your Account Information, except for Account Information that is a credit card number, may be transferred unencrypted over one or more networks and may be changed, modified or otherwise adapted as required to meet the technical requirements of such transmission.
10.4. Your Data Protection Obligations. You hereby acknowledge and agree that your processing of any Customer Provided Data that was obtained by the Company via you, your e-Commerce Platform, or a third-party on your behalf, is and shall be in compliance with all applicable data protection or data privacy law and that, in respect of such Customer Provided Data, you shall treat all such data in accordance with such applicable data protection and data privacy laws.
10.5. Data Protection Officer. Any questions regarding the treatment of data can be directed to firstname.lastname@example.org .
10.6. Breach of this Section 10 will be deemed to be a material breach of this Agreement. You agree that you are responsible for, liable for any damages resulting from, and shall indemnify the Company in accordance with Section 14.6 herein below for, any failure to comply with any applicable data privacy laws, and all related unlawful acts or omissions in the collection and disclosure to the Company of any Customer Provided Data, to the extent that such failures, acts, or omissions relate to Collected Data that was obtained by the Company via your eCommerce Platform, and such acts or omissions are not contributed to by the Company.
10.7. Lawful Disclosures. The Company may at its sole discretion cooperate with and disclose information (including your Account Information) to any authority, government official or third party, without giving any notice to you, in connection with any investigation, proceeding or claim arising from an asserted illegal action or infringement whether related or unrelated to your use or misuse of your Account.
11.1. Feedback. In the event you elect, in connection with any of the Products, to communicate to us suggestions for improvements to the Products (collectively, “Feedback”), we shall own all right, title, and interest in and to the Feedback and we shall be entitled to use the Feedback without restriction, even if you have indicated such Feedback as confidential or restricted as to our rights or use. You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive any and all moral rights you may have in the Feedback, and agree to provide us such assistance as we may require to document, perfect, and maintain our rights in and title to the Feedback. You agree that: (a) your Feedback does not contain confidential or proprietary information; (b) the Company is not under any obligation of confidentiality, express or implied, with respect to the Feedback; (c) the Company shall be entitled to use or disclose (or choose not to use or disclose) such Feedback for any purpose, in any way, in any media worldwide; and (d) you are not entitled to any compensation or reimbursement of any kind from the Company under any circumstances.
12.1. Generally. We may suspend your right or any End User’s right to access your Account or use any portion of the Products immediately upon notice to you if we determine: (a) your or an End User’s use of or registration for the Products (i) poses a security risk to the Products or any third party, (ii) it may adversely impact the Products or the systems or the User Submitted Content or any other customer of the Company, (iii) may subject us or any third party to liability, or (iv) it may be fraudulent; (b) you are, or any End User is, in breach of this Agreement or applicable law; (c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
12.2. Effect of Suspension. If we suspend your right to access your Account or use any portion of the Products: (a) you will not be entitled to any credit of fees paid for any period of suspension; and (b) you remain responsible for all fees and charges you may have incurred through the date of suspension, except as specified elsewhere in this Agreement. Our right to suspend your Account or use of the Products is in addition to, and without prejudice to, our right to terminate this Agreement pursuant to Section 13 and any other remedies available at law.
13.1. Term. Unless otherwise agreed in writing between you and the Company, this Agreement is in effect from the earliest of the dates you access, use, or download any Product, or create an Account, until terminated by either you or the Company (the “Term”).
13.2. Termination by You. Unless otherwise agreed in writing between you and the Company, you may terminate this Agreement at any time by notifying email@example.com. Your termination notice will be effective when we receive it.
13.3. Termination by the Company for Convenience. Unless otherwise agreed in writing between you and the Company, the Company may terminate this Agreement at its sole discretion, at any time, effective immediately upon notice to you, whether for convenience or in the event you breach this Agreement.
13.4. Effect of Termination. Upon termination of this Agreement you acknowledge that all of your rights under this Agreement will immediately terminate and the Company will delete your Account. You will be responsible for any outstanding fees, charges and applicable Taxes (as previously defined) incurred by you and owing to us from the time notice is given. You are also responsible for removing any Autopilot functionality from your website, app, or platform, and you remain responsible for any acts or omissions relating to the collection or disclosure of shopper information to the Company after the termination of this Agreement and/or your Account resulting from a failure to remove such Autopilot functionality.
13.5. Surviving Obligations. All provisions of this Agreement which by their nature should survive expiration or termination shall survive the expiration or termination of this Agreement, including, without limitation, 1, 2, 4, 5, 10, 13, 14, and 16. Termination of your access to the Account and use of the Products shall not relieve you of any obligations arising or accruing prior to such expiration or termination or limit any liability which you otherwise may have to the Company, including without limitation any indemnification obligations hereunder.
14.1. “AS IS” BASIS. THE PRODUCTS ARE PROVIDED TO YOU “AS IS.” ANY USE OF THE PRODUCTS OR RELIANCE ON CALCULATED DATA OR OTHER OUTPUT OF THE PRODUCTS IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, AVAILABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE PRODUCTS WILL BE FREE FROM LOSS, DESTRUCTION, SERVICE LOSS, UNAVAILABILITY, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND THE COMPANY DISCLAIMS ANY LIABILITY RELATING THERETO. THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT USE OR RESULTS OF THE USE OF THE PRODUCTS AND SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED, OR WITHOUT ERRORS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY THE COMPANY OR OTHERS WILL CREATE A WARRANTY AND NEITHER YOU NOR ANY THIRD-PARTY MAY RELY ON ANY SUCH INFORMATION OR ADVICE.
14.2. THIRD-PARTY CONTENT. THE COMPANY IS NOT RESPONSIBLE AND DOES NOT ASSUME ANY LIABILITY FOR THIRD-PARTY CONTENT.
14.3. LIMITATION OF LIABILITY. IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR INDIRECT, DIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, AGGRAVATED, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, LOSS OF PROFITS, BUSINESS INTERRUPTION, CORRUPTION OF FILES, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO YOUR ACCOUNT OR THE PRODUCTS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE PRODUCTS, OR (III) ANY SERVICE SUSPENSION, UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE PRODUCTS FOR ANY REASON, INCLUDING BUT NOT LIMITED TO AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO ACCESS OR STORE ANY OF YOUR USER-SUBMITTED CONTENT OR OTHER CONTENT OR DATA.
14.4. TOTAL LIABILITY. IN ANY CASE, THE COMPANY’S TOTAL LIABILITY TO YOU UNDER ANY PROVISION OF THIS AGREEMENT IS LIMITED. THE COMPANY’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAID THE COMPANY UNDER THIS AGREEMENT FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM DURING THE TWO (2) MONTHS PRECEDING THE CLAIM.
14.5. APPLICATION OF LIMITATIONS. THE LIMITATIONS OF LIABILITY AND DAMAGES EXCLUSIONS OF THIS AGREEMENT APPLY TO ALL CAUSES OF ACTION AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
14.6. INDEMNITY. YOU WILL, IN ACCORDANCE WITH SECTION 14.7, INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ALL OF THEIR RESPECTIVE PRESENT AND FORMER OFFICERS, MEMBERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, HEIRS AND ASSIGNEES, FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, COSTS, DAMAGES, AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, DISBURSEMENTS, AND ADMINISTRATIVE OR COURT COSTS) (COLLECTIVELY, “LOSSES”) PAID OR INCURRED IN CONNECTION WITH CLAIMS BY ANY THIRD PARTY RESULTING FROM (A) YOUR BREACH OF THIS AGREEMENT, (B) YOUR BREACH OF SECTION 10, OR ANY APPLICABLE PRIVACY AND/OR DATA PROTECTION LAW, (C) ANY INFRINGEMENT BY YOU OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY; OR (D) A CLAIM, LIABILITY, OR OBLIGATION CLAIMED PURSUANT TO SECTION 15.6; OR (E) YOUR USE OR MISUSE OF THE ACCOUNT OR THE PRODUCTS; OR (F) OTHER ACT OR OMISSION CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
14.7. Indemnifying Party Rights and Obligations. You shall promptly inform the Company of any suit or proceeding filed or that you anticipate being filed against you and/or the Company for which the Company is entitled to indemnification hereunder. You may direct the defense and settlement of any such claim, with counsel of your choosing, and will provide the Company, at your expense, with information and assistance reasonably necessary for the defense and settlement of the claim. The Company shall have the right, but not the obligation, at its sole expense to participate in (but not to control) the defense of any such suit or proceeding. You shall not settle any such action without the written consent of the Company.
15.1. Your Equipment. You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access the Account or otherwise use the Products, including, without limitation, modems, hardware, software, and long-distance or local telephone service.
15.2. Third-Party Service Providers. You acknowledge that the Company uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Services.
15.3. Export Compliance and Restrictions. You will, in connection with your use of the Products, comply with all applicable export, import and re-export control laws and regulations. You shall not provide any Customer Collected Data or other information that is subject to any applicable export, import and re-export control laws and regulations without obtaining prior written consent from the Company.
15.4. Governing Law. The rights, duties and obligations of the parties to this Agreement and the validity, interpretation, performance and legal effect of this Agreement shall be governed and determined in accordance with the applicable laws in the State of Washington, excluding that body of law applicable to choice or conflict of law and the United Nations Convention on Contracts for the International Sales of Goods and all legislation implementing such convention. Any claims or disputes arising out of this Agreement or any Confidential Information disclosed pursuant to this Agreement may only be brought in a court of competent jurisdiction in Seattle, Washington, and the parties irrevocably and unconditionally consent to the jurisdiction of any such court and irrevocably and unconditionally waive (a) any defense of an inconvenient forum to the maintenance of any such claim or action; (b) any objection to venue with respect to any such action or claim on account of the place of residence or domicile of any party thereto; and (c) to the extent permitted by law, the right to a jury trial in connection with any action or claim arising out of this Agreement or the disclosed Confidential Information.
15.5. Equitable Remedies. The rights granted and obligations made under this Agreement are of a unique and irreplaceable nature, the loss of which will irreparably harm the Company and which cannot be replaced or compensated for by monetary damages alone. Accordingly, the Company will be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Services or any other materials issued in connection therewith or other content or material used or accessed through the Service.
15.6. No Partnership. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind the Company. You shall indemnify the Company, in accordance with Section 14.6, for any Losses resulting from any claim of agency, partnership, joint venture, or employment by any of your employees, contractors, agents, or other representative based on any alleged relationship resulting from this Agreement.
15.7. Notices. The Company may send notices to you with respect to your use of the Products or otherwise under this Agreement by sending an email message to the email address listed in your Account Information. You agree that we may provide notice to you through such means. You may provide notice to the Company under this Agreement by sending an email message to firstname.lastname@example.org. Unless otherwise stated, such notices will become effective immediately upon delivery.
15.8. No Waiver. No failure or delay by the Company in enforcing any right or exercising will be deemed a waiver of any right or remedy.
15.9. Assignment. You may not assign this Agreement or any of your obligations hereunder to any person without the prior written consent of the Company. Any such assignment or transfer in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
15.10. No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
15.11. Severability. If any provision of this Agreement, or portion thereof, is unenforceable or invalid for any reason whatever, the parties agree that modification of such provision or portion thereof shall be permitted, and such modification shall preserve as much of the provision or portion thereof as required to render such provision or portion thereof enforceable or valid, as the case may be. The parties further agree that such unenforceability or invalidity shall not affect the enforceability or validity of the remaining portions of the provision or provisions of this Agreement and such unenforceable or invalid provision or portion thereof shall be severable from the remainder of this Agreement.
15.13. ACKNOWLEDGEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT AND WILL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER ACKNOWLEDGE THAT THIS AGREEMENT REPRESENTS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US AND THAT IT SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT ORAL OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN US RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, SUBJECT TO SECTION 15.12.
For questions concerning the activities in the EU please direct your questions to Xapix Software GmbH, a wholly owned subsidiary of Autopilot, Inc, with office at Ritterstrasse 24-26, 10969 Berlin as represented by Christian Umbach via email email@example.com or +1 206 930 1652.
Definitions. For purposes of this Annex A, the terms “controller”, “processor” and “supervisory authority” have the meanings given in EU Data Protection Law; “Standard Contractual Clauses” means the Standard Contractual Clauses for Processors as approved by the European Commission under Decision 2010/87/EU in the form made accessible in Customer’s Autopilot’s Workspace; and “data importer” and “data exporter” have the meanings given in the Standard Contractual Clauses.
Subject Matter and Details of Processing. The parties acknowledge and agree that (a) the subject matter of the Processing under the Agreement is Autopilot’s provision of the Services; (b) the duration of the Processing is from Autopilot’s receipt of Customer Personal Data until deletion of all Customer Personal Data by Autopilot in accordance with the Agreement; (c) the nature and purpose of the Processing is to provide the Services; (d) the Data Subjects to whom the Processing pertains are Customer’s customers, end users or other individuals to whom Customer Personal Data pertains; and (e) the categories of Customer Personal Data are such categories as Customer is authorized to ingest into the Services under the Agreement.
Autopilot’s Compliance with Instructions. Autopilot will only Process Customer Personal Data in accordance with Customer’s instructions in this Addendum unless EU Data Protection Law requires otherwise, in which case Autopilot will notify Customer (unless that law prohibits Autopilot from doing so).
Autopilot Security Measures, Controls and Assistance
Autopilot will (taking into account the nature of the Processing of Customer Personal Data and the information available to Autopilot) provide Customer with reasonable assistance necessary for Customer to comply with its obligations in respect of Customer Personal Data under EU Data Protection Law, including Articles 32 to 34 (inclusive) of the GDPR, by (a) implementing and maintaining the Security Measures; (b) complying with the terms of Section 7 of this Addendum; and (c) complying with this Annex A.
Autopilot will grant access to Customer Personal Data only to personnel who need such access for the scope of their job duties, and are subject to appropriate confidentiality obligations. Should an employee of a Customer seek to exercise their rights under EU Data Protection Laws (e.g., rights of data access, rectification, erasure, restriction, portability and objection) in respect of any Usage Data that constitutes Personal Data then the Customer undertakes to inform Autopilot without delay and instruct their employee to contact Autopilot directly via firstname.lastname@example.org or such other email address as directed at the time.
Audits and Reviews of Compliance. To the extent applicable Data Protection Laws include a right for Customer to audit Autopilot’s Processing of Customer Personal Data, Customer will exercise such audit right, and Autopilot will fulfill its corresponding obligations, as follows:
Not more than once per calendar year and at Customer’s expense, Customer may audit Autopilot’s Processing of Customer Personal Data for compliance with its obligations under this Addendum by submitting reasonable requests for information, including security and audit questionnaires. Autopilot will provide written responses to the extent the requested information is necessary to confirm Autopilot’s compliance with this Addendum. However, if the requested information is addressed in a Third Party Report issued within the 12-month period prior to Customer’s request and Autopilot confirms there have been no material changes in the interim relevant to Customer’s request, Customer agrees to accept such Third Party Report in lieu of a written response. Any information provided by Autopilot under this Section 2.b. constitutes Autopilot’s Confidential Information under the Agreement.
If a third party is to conduct an audit under this Section 2.b., Autopilot may object to the auditor if the auditor is, in Autopilot’s reasonable opinion, not independent, a competitor of Autopilot or otherwise unqualified. Such objection by Autopilot will require Customer to appoint another auditor or conduct the audit itself.
Customer will promptly notify Autopilot of any non-compliance discovered during the course of an audit and provide Autopilot any audit reports generated in connection with any audit under this Section 2.b., unless prohibited by EU Data Protection Law or otherwise instructed by a supervisory authority. Customer may use the audit reports only for the purposes of meeting Customer’s regulatory audit requirements and confirming that Autopilot’s Processing of Customer Personal Data complies with this Addendum.
Customer shall reimburse Autopilot for any time expended by Autopilot or its Subprocessors in connection with any audits under this Section 2.b. at Autopilot’s then-current professional services rates, which shall be made available to Customer upon request. Customer will be responsible for any fees charged by any auditor appointed by Customer to execute any such audit. Nothing in this Addendum shall be construed to require Autopilot to furnish more information about its Third Party Subprocessors in connection with such audits than such Third Party Subprocessors make generally available to their customers. Nothing in this Section 2.b. shall require Autopilot to breach any duties of confidentiality.
Autopilot may (taking into account the nature of the Processing and the information available to Autopilot) reasonably assist Customer in complying with Customer’s obligations under Articles 35 and 36 of the GDPR, by (a) making available documentation describing relevant aspects of Autopilot’s information security program and the security measures applied in connection therewith; and (b) providing the other information contained in the Agreement, including this Addendum.
Data Processing Facilities. Autopilot may, subject to Section 4.b., store and Process Customer Personal Data in the United States or anywhere Autopilot or its Subprocessors maintain facilities. Subject to Autopilot’s obligations in this Section 4, Customer is responsible for ensuring that its use of the Services complies with any cross-border data transfer restrictions of EU Data Protection Law.
Privacy Shield. To the extent that Autopilot Processes any Customer Personal Data of individuals in the EU or Switzerland in the United States, then Autopilot shall protect such Customer Personal Data in accordance with the Privacy Shield Principles and Supplemental Principles of the EU-U.S. and Swiss Privacy Shield Frameworks (“Privacy Shield”). If Autopilot is unable to comply with this requirement, Autopilot shall inform Customer.
Standard Contractual Clauses. If Customer is established in the EU and transfers Customer Personal Data out of the EU to Autopilot in a country not deemed by the European Commission to have adequate data protection, and the Privacy Shield ceases to be a basis by which Customer may lawfully make such transfer to Autopilot under Chapter V of the GDPR, and no lawful alternative basis for such transfer applies, such transfer will be governed by the Standard Contractual Clauses, the terms of which are hereby incorporated into this DPA. In furtherance of the foregoing, the parties agree that:
for purposes of the Standard Contractual Clauses, (a) Customer will act as the data exporter and (b) Autopilot will act as the data importer;
for purposes of Appendix 1 to the Standard Contractual Clauses, the Data Subjects, categories of data, and the processing operations shall be as set out in Section 1.b. to this Annex A;
for purposes of Appendix 2 to the Standard Contractual Clauses, the technical and organizational measures shall be the Security Measures;
upon data exporter’s request under the Standard Contractual Clauses, data importer will provide the copies of the Subprocessor agreements that must be sent by the data importer to the data exporter pursuant to Clause 5(j) of the Standard Contractual Clauses, and data importer may remove or redact all commercial information or clauses unrelated to the Standard Contractual Clauses or their equivalent beforehand;
the audits described in Clause 5(f) and Clause 12(2) of the Standard Contractual Clauses shall be performed in accordance with Section 2.b. of this Annex A;
Customer’s authorizations in Section 6 of this Addendum (Subprocessing) will constitute Customer’s prior written consent to the subcontracting by Autopilot of the Processing of Customer Personal Data if such consent is required under Clause 5(h) of the Standard Contractual Clauses;
certification of deletion of Customer Personal Data as described in Clause 12(1) of the Standard Contractual Clauses shall be provided only upon Customer’s request; and
the Standard Contractual Clauses shall automatically terminate once the Customer Personal Data transfer governed thereby becomes lawful under Chapter V of the GDPR in the absence of such Standard Contractual Clauses on any other basis.