BY ACCESSING OR USING ANY SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO.
This Peruse Terms of Service(s) (“Agreement”) is entered into by and between Peruse (as defined below) and the entity or person placing an order for or accessing any Service(s) ("Subscriber" or "you"). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Forms (as defined below)that reference this Agreement.
The "Effective Date" is the date which is the earlier of (a) Subscriber’s initial access to any Service(s) (as defined below) through any online provisioning, registration or order process or (b) the effective date of the first Order Form referencing this Agreement. This Agreement will govern Subscriber’s initial purchase on the Effective Date as well as any future purchases made by Subscriber that reference this Agreement.
Modifications to this Agreement: From time to time, Peruse may modify this Agreement. Unless otherwise specified by Peruse, changes become effective for Subscriber upon renewal of the then-current Subscription Term (as defined below) or entry into a new Order Form after the updated version of this Agreement goes into effect. Peruse will use reasonable efforts to notify Subscriber of the changes through communications via Subscriber’s account, email or other means. Subscriber may be required to click to accept or otherwise agree to the modified Agreement before renewing aSubscription Term or entering into a new Order Form, and in any event continued use of any Service(s) after the updated version of this Agreement goes into effect will constitute Subscriber’s acceptance of such updated version.
1. "Acceptable Use Policy" means Peruse’s acceptable use policy, attached as Exhibit 1.
2. Account means Subscriber’s account in the applicable Service(s) in which Subscriber stores and processes Subscriber Data and Documents.
3. "Affiliate" means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership”means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
4. API is any application programming interface that is included in or with the applicable Service(s) that is made available to Subscriber by Peruse for installation on end user computers and devices.
5. "Confidential Information" shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Subscriber Data will be deemed Confidential Information of Subscriber without any marking or further designation. All Peruse Technology and the terms and conditions of this Agreement will be deemed Confidential Information of Peruse without any marking or further designation. Confidential Information shall not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
6. "Contractor" means the independent contractors and consultants permitted by Subscriber to serve as Users of the Service(s).
7. "Disclosing Party" is defined in Section 5 (Confidential Information).
8. "Document(s)" means a single digital file consisting of up to three (3) pages in either pdf or image form. Documents in excess of three (3) pages are treated as a separate Document. For example, a single digital file that is 4-6 (four to six) pages is considered two (2) Documents and a single digital file that is 7-9 pages is considered three (3) Documents.
9. "Documentation" means Peruse’s documentation and usage guides for the applicable Service(s) made generally available through the Service(s), as updated from time to time.
10. "Excluded Claims" means (a) a party’s breach of its obligations in Section 5 (Confidential Information) (but excluding obligations and/or claims relating to Subscriber Data); and (b) liability which, by law, cannot be limited.
11. "Feedback" is defined in Section 4.1 (Peruse Technology).
12. "Fees" means the fees payable by Subscriber for the applicable Service(s), as set forth in an Order Form.
13. "HIPAA" means the Health Insurance Portability and Accountability Act, as amended and supplemented.
14. "HIPAA Data" means any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations.
15. "Peruse" means Peruse Technology LLC.
16. "Peruse Technology" is defined in Section 4.1 (Peruse Technology).
17. "Order Form" means the Peruse ordering document executed by both Subscriber and Peruse or that is electronically provisioned and accepted which specifies the Service(s) being provided by Peruse and that is governed by this Agreement.
18. "Receiving Party" is defined in Section 5 (Confidentiality).
19. "Service(s)" means a Peruse software-as-a-service offering and related service offerings made generally available and ordered by Subscriber as set forth in an OrderForm (which may include, the ability to upload Documents to the Service(s) via text, email and/or API).
20. "Subscriber Data" means any data, including data in a Document, that is uploaded by or on behalf of Subscriber to the Service(s) for storage and management.
21. "Subscription Term" means the set term designated on an Order Form.
22. "Taxes" means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Peruse.
23. "Usage Data" means query logs, and any data (other than Subscriber Data) relating to the operation, support and/or about Subscriber’s use of the Service(s).
24. "User" means the persons designated and granted access to the Service(s) by or on behalf of Subscriber, including its and its Affiliates’ Contractors.
1.1. Service(s) Provision and Access; API. Peruse will make the Service(s) available to Subscriber for the Subscription Term solely for internal use by Subscriber and its Users (i) for Subscriber’s business purposes; and/or (ii) to provide Subscriber-offered product(s) or service(s) used in connection with the Service(s); each of which, in accordance with the terms and conditions of this Agreement, the Documentation, and the Order Form. Subscriber may permit its Contractors to serve as Users provided that any use of the Service(s) by each such Contractor is solely for the benefit of Subscriber. Subscriber shall be responsible foreach User’s compliance with this Agreement. To the extent use of a Service(s) requires Subscriber to install or use an API, Peruse grants to Subscriber a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription Term to use the API internally in connection with Subscriber’s and its Affiliates use of the Service(s), subject to the terms and conditions of this Agreement and the Documentation.
1.2. Affiliates. Subscriber Affiliates may purchase Service(s) from Peruse by executing an Order Form which is governed by the terms of this Agreement. This will establish a new and separate agreement between the Subscriber Affiliate and the Peruse entity signing such Order Form. If the Subscriber Affiliate resides in a different country than Subscriber, then the Order Form may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
1.3. Compliance with Applicable Laws. Peruse will provide the Service(s) subject to its obligations under laws and government regulations applicable to Peruse’s provision of the Service(s) to its Subscribers generally, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of personal data, without regard toSubscriber’s particular use of the Service(s) and subject to Subscriber’s use of the Service(s) in accordance with this Agreement.
1.4. General Restrictions. Except as otherwise set forth in the applicable Order Form, Subscriber will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available any Service(s) to a third party or in a service bureau or outsourcing offering; (b) use any Service(s) to provide, or incorporate any Service(s) into, any graph database service for the benefit of a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to any Service(s), except to the extent expressly permitted by applicable law (and then only upon advance written notice to Peruse); (d) remove or obscure any proprietary or other notices contained in any Service(s); or (e) use any Service(s) in violation of the Acceptable Use Policy.
2.1. Rights in Subscriber Data. As between the parties, Subscriber or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Subscriber Data as provided to Peruse. Subject to the terms of this Agreement, Subscriber hereby grants to Peruse anon-exclusive, worldwide, royalty-free, perpetual and irrevocable right to process the Subscriber Data to provide the Service(s) to Subscriber, as may be required by law, to improve Peruse’s machine-learning and artificial-intelligence technologies and to use Subscriber Data in aggregated, non-personally identifiable form. The Service(s) may include functionality provided by third-party sub-processors and Subscriber consents to Peruse’s use of these sub-processors and to their processing of the Subscriber Data.
2.2. Usage. To the extent that Peruse receives any Subscriber Data regarding Subscriber’s Users for purposes of registering for or using the Service(s), Peruse will also process personal data in compliance with this Section, Subscriber instructions and in accordance with Peruse's privacy policy located at peruse.ml/general-8 or peruse.ml/privacy.
2.3. Use Obligations.
(a) In General. Subscriber’s use of the Service(s) and all Subscriber Data will comply with applicable laws and government regulations. Subscriber is solely responsible for the accuracy, content and legality of all Subscriber Data. Subscriber warrants that Subscriber has and will have sufficient rights in the Subscriber Data to grant the rights to Peruse under this Agreement and that the Subscriber Data will not violate the rights of any third party. Subscriber is responsible for providing legally adequate privacy notices to its Users that use any Service(s) and obtaining any necessary consent from such Users for the processing of the Subscriber Data and the storage, use, and transfer of Subscriber Data, including providing any required notices and obtaining any required consent under applicable laws. Subscriber represents to Peruse that Subscriber has provided all necessary privacy notices and obtained all necessary consents. Subscriber is responsible for notifying Peruse in the event that any Subscriber Data stored by the Service(s) must be deleted under applicable law.
(b) HIPAA Data. Subscriber agrees not to upload any HIPAA Data or protected health information (PHI) to any Service(s) that would render Peruse a Business Associate under HIPAA.
(c) Consumer Data. Subscriber agrees not to upload to any Service(s) information relating to a customer or consumer of a financial institution under GLBA (15 U.S.C. §§ 6801–6809) or its equivalent.
Marketing. Upon written approval of Subscriber, Peruse may use and display Subscriber's name, logo, trademarks, and service marks on Peruse's website and in Peruse's marketing materials in connection with identifying Subscriber as a Subscriber of Peruse. Upon Subscriber's written request, Peruse will promptly remove any such marks from Peruse's website and, to the extent commercially feasible, Peruse's marketing materials. Peruse may ask Subscriber from time to time, to participate, at Subscriber's option, in a case study, press release and/or cooperate with Peruse in speaking to the media, and to speak at a future Peruse event.
4.1. Peruse Technology. Subscriber agrees that Peruse or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Service(s), all Documentation and API, and any and all related and underlying technology and documentation; and any derivative works, modifications, or improvements of any of the foregoing, including any Feedback that may be incorporated (collectively, "Peruse Technology"). Except for the express limited rights set forth in this Agreement, no right, title or interest in any Peruse Technology is granted to Subscriber. Further, Subscriber acknowledges that the Service(s) is offered as an online, hosted solution, and that Subscriber has no right to obtain a copy of the underlying computer code for any Service(s), except (if applicable) for the API in object code format. Notwithstanding anything to the contrary herein, Peruse may freely use and incorporate into Peruse’s products and Service(s) any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Subscriber or by any users of the Service(s) relating to Peruse’s products or Service(s) ("Feedback").
4.2. Usage Data. Notwithstanding anything to the contrary in this Agreement, Peruse may collect and use Usage Data to develop, improve, support, and operate its products and Service(s). Peruse may not share any Usage Data that includes Subscriber’s Confidential Information with a third party except (i) in accordance with Section 5 (Confidentiality) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that Subscriber and Subscriber’s Users cannot be identified.
Each party (as "Receiving Party") will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the "Disclosing Party") for any purpose outside the scope of this Agreement, and (ii) except as other wise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party shall, to the extent legally permitted, provide Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6.1. Fees and Payment. All payments under this Agreement shall be made within thirty (30) days of invoice date in currently available funds or as otherwise set forth in an Order Form. Order Forms may specify a per Document fee, a minimum number of Documents that will be processed during a given period and/or minimum monthly Fees. If Subscriber prepays any Fees in advance to process a certain number of Documents and processes more Documents than it has paid, Peruse will invoice Subscriber the shortfall in the next calendar month. Except as expressly set forth in this Agreement, all payment obligations are non-cancelable and Fees are non-refundable. If Subscriber issues a purchase order upon entering into an Order Form, then: (i) any such purchase order submitted by Subscriber is for its internal purposes only, and Peruse rejects, and in the future is deemed to have rejected, any purchase order terms to the extent they add to or conflict in anyway with this Agreement or the applicable Order Form and such additional or conflicting terms will have no effect, (ii) it shall be without limitation to Peruse’s right to collect Fees owing hereunder, (iii) it shall be for the total Fees owing under the applicable Order Form, and (iv) on request, Peruse will reference the purchase order number on its invoices (solely for administrative convenience), so long as Subscriber provides the purchase order at least ten (10) business days prior to the invoice date.
6.2. Taxes. Fees do not include Taxes. Subscriber is responsible for paying all Taxes associated with its purchases hereunder including without limitation all use or access of the Service(s) by its Users. If Peruse has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section, Peruse will invoice Subscriber and Subscriber will pay that amount unless Subscriber provides Peruse with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Peruse, except as required by applicable law, in which caseSubscriber will increase the amount payable as necessary so that, after making all required deductions and withholdings, Peruse receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Peruse’s request, Subscriber will provide to Peruse its proof of withholding tax remittance to the respective tax authority.
6.3. Payment Disputes. Peruse will not exercise its rights to terminate for breach or to suspend for non-payment with respect to non-payment by Subscriber if Subscriber is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute; provided, that Subscriber continues to pay any undisputed portion of the charges. If the parties are unable to resolve such a dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or inequity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
7.1. Term. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with its terms. If there is no Order Form currently in effect, either party may terminate this Agreement upon written notice to the other party. Each Order Form will automatically renew for the same periods of time as the initial Subscription Term of each Order Form, unless a party notifies the other party of its intent not to renew prior to the renewal date and unless expressly stated otherwise in the OrderForm or in this Agreement.
7.2. Termination. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party and is not dismissed within sixty (60) days. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
7.3. Other Termination and Suspension of Service(s) In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Peruse reserves the right to suspend provision of Service(s) orto terminate the Service(s); (a) if Subscriber is thirty (30) days or more overdue on a payment, (b) if Peruse deems such suspension necessary as a result of Subscriber’s breach of Sections 1.4 (General Restrictions) or 2.3 (Use Obligations), (c) if Peruse reasonably determines suspension is necessary to avoid material harm to Peruse or its other Subscribers, including if the Service(s) is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Peruse’s control, (d) as required by law or at the request of governmental entities, or (e) if Subscriber is processing less than one hundred (100) Documents per month in its Service(s) Account for three (3) consecutive months.
7.4. Effect of Termination. Upon written notice to Peruse, Subscriber will have up to thirty (30) calendar days from termination or expiration of this Agreement to request a copy of Subscriber’s Documents. After Peruse provides such copy, Peruse shall have no further obligation to make Subscriber’s Documents available after termination of this Agreement and may thereafter promptly delete the Documents. After termination, Subscriber will have no further access to Documents and shall cease use of and access to the Service(s) (including any related Peruse Technology) and delete all copies of API, Documentation, any Service(s) passwords or access codes, and any other Peruse Confidential Information in its possession.
7.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 0 (Definitions), 1.4 (General Restrictions), 2.1 (Rights in Subscriber Data), 4 (Intellectual Property), 5 (Confidentiality), 6.1 (Fees and Payment), 6.2 (Taxes), 7 (Term and Termination), 8.3 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation of Remedies and Damages), and 12 (General Terms).
8.1. Service(s) Warranty. Peruse warrants that: each Service(s) will materially conform to the specifications set forth in the applicable Documentation. As Subscriber’s sole remedy, Peruse will use commercially reasonable efforts to correct such non-conformity. This warranty will not apply if the error or non-conformance was caused by misuse of the Service(s) modifications to the Service(s) by Subscriber or any third-party, or third-party hardware, software, or Service(s) used in connection with the Service(s).
8.2. Mutual Warranty. Each party warrants that it has validly entered into this Agreement and has the legal power to do so.
8.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH SERVICE, ANY SOFTWARE, AND SUPPORT ARE PROVIDED “AS IS” AND PERUSE MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. PERUSE DOES NOT WARRANT THAT THE USE OF ANY SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR ACCURATE IN RECOGNIZING ALL DOCUMENTS AND/OR SUBSCRIBER DATA OR INFORMATION CONTAINED THEREIN OR INFORMATION DERIVED THEREFROM, NOR DOES PERUSE WARRANT THAT IT WILL REVIEW THE SUBSCRIBER DATA FOR ACCURACY.
During a Subscription Term, Peruse will provide Subscriber with its standard support offerings. Subscriber acknowledges that the Service(s) are hosted on Amazon Web Service(s) (AWS), and AWS makes service level commitments to Peruse.
10.1. Indemnification by Peruse. Peruse will defend Subscriber against any claim by a third party alleging that any Service(s), when used in accordance with this Agreement, infringes a copyright, or patent issued as of the Effective Date in a country that is a signatory to the Berne Convention of such third party and will indemnify and hold harmless Subscriber from and against any damages and costs awarded against Subscriber or agreed in settlement by Peruse (including reasonable attorneys’ fees) resulting from such claim. If Subscriber’s use of the Service(s) results (or in Peruse’s opinion is likely to result) in an infringement claim, Peruse may either: (a) substitute functionally similar products or Service(s); (b) procure for Subscriber the right to continue using the Service(s); or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement, or the applicable Order Form and refund to Subscriber the unused Fees that Subscriber has pre-paid for the applicable Service(s). The foregoing indemnification obligation of Peruse will not apply to the extent the applicable claim is attributable to: (1) the modification of the Service(s) by any party other than Peruse or based on Subscriber’s specifications or requirements; (2) the combination of the Service(s) with products or processes not provided by Peruse; (3) any use of the Service(s) in non-conformity with this Agreement; or (4) any action arising as a result of Subscriber Data, or components not provided by Peruse. This Section sets forth Subscriber’s sole remedy with respect to any claim of intellectual property infringement.
10.2. Indemnification by Subscriber. Subscriber will defend Peruse against any claim by a third party arising from or relating to any Subscriber Data, Subscriber Materials or any Subscriber-offered product or service used in connection with the Service(s) or any claims or losses arising out ofSubscriber’s acts or omissions (including, without limitation, any acts or omissions taken that are based on any results or Document recognition generated from use of the Services) and will indemnify and hold harmless Peruse from and against any damages and costs awarded against Peruse or agreed in settlement by Subscriber (including reasonable attorneys’ fees) resulting from such claim.
10.3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this Section 10 shall not relieve the indemnifying party of its obligations under this Section 10, however the indemnifying party shall not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this Section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials), or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably with held, conditioned or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
EXCEPT AS TO “EXCLUDED CLAIMS,” TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT:
(A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, COSTS OF DELAY, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE;
(B) SUBJECT TO SUBSECTION (C) BELOW, EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE), SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY SUBSCRIBER TO PERUSE IN THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER FORM(S) TO WHICH SUCH LIABILITY RELATES (“GENERAL LIABILITY CAP”);
(C) THE PARTIES AGREE THAT THIS SECTION 11 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; AND
(D) THE APPLICABLE MONETARY CAPS SET FORTH IN THIS SECTION 11 SHALL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL SUBSCRIBER AFFILIATES HAVE EXECUTED A SEPARATE AGREEMENT IN ACCORDANCE WITH SECTION 1.2 (AFFILIATES).
12.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in its entirety in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets or voting securities to such party’s successor; and Peruse may assign this Agreement in its entirety to any Affiliate. Each party shall promptly provide notice of any such assignment. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
12.2. Severability; Interpretation. If a court of competent jurisdiction holds any provision of this Agreement to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect. Section headings are inserted for convenience only and shall not affect the construction of the agreement.
12.3. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it shall provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within thirty (30) days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply to claims subject to indemnification under Section 10 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
12.4. Governing Law; Jurisdiction and Venue. This Agreement will be governed by the laws of the State of Illinois and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods; and (ii) the jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in Cook County, Illinois and both parties hereby submit to the personal jurisdiction of such courts.
12.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (iv) if given by email, immediately upon receipt. Notwithstanding the foregoing, except for notices pertaining to non-payment and except as otherwise expressly permitted in this Agreement or in an Order Form, notices related to termination of this Agreement or any claims (including without limitation breach, warranty or indemnity) may not be given via email. Email notifications to Peruse shall be to support@peruse.ml
12.6. Amendments; Waivers. No supplement, modification, or amendment of this Agreement will be binding, unless executed in writing by a duly authorized representative of each party to this Agreement, except as expressly set forth herein. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No terms or conditions stated in a Subscriber purchase order, vendor onboarding process or web portal, or any other Subscriber order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void, not with standing any language to the contrary therein, whether signed before or after this Agreement.
12.7. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Peruse may change and update any Service(s) (in which case Peruse may update the applicable Documentation accordingly), subject to the warranty in Section 8.1 (Service(s) Warranty).
12.8. Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.9. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited to acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, public health emergencies (including pandemics and epidemics), acts or orders of government, acts of terrorism, or war.
12.10. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees.
12.11. Export Control. Subscriber agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Subscriber represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Subscriber will not (and will not permit any third parties to) access or use any Service(s) in violation of any U.S. export embargo, prohibition or restriction, and (iii) Subscriber will not submit to any Service(s) any information that is controlled under the U.S. International Traffic in Arms Regulations.
12.12. Federal Government End Use Provisions. Peruse provides the Service(s), including all related software and, to the extent applicable the Peruse Technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service(s) include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Peruse to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
12.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.
This Peruse acceptable use policy ("AUP") sets forth certain restrictions on accessing and using the Service(s). The restrictions set forth in this AUP are not exhaustive. Subscriber may not use the Service(s):
1. to store, transmit, or make available (a) content that is infringing, libelous, unlawful, tortious, or in violation of third-party rights, (b) content or technology that harms, interferes with, or limits the normal operation of the Service(s), including monitoring traffic or data, or(c) viruses, malware, or other malicious code;
2. (a) in a way intended to avoid incurring fees or exceeding us age limits or quotas; or (b) to disable or circumvent any security, billing, or monitoring mechanisms used by the Service(s);
3. for illegal, threatening, or offensive uses, or for similarly objectionable purposes, such as propagating hate or violence or causing harm to others or to Our reputation;
4. to transact in, or facilitate activities related to, misappropriating another individual’s identity, including, but not limited to, improperly obtained credit card information and/or account credentials;
5. to attempt to gain unauthorized access to any Service(s) or any related systems, including those of Peruse’s subcontractors and other customers or users;
6. to permit direct or indirect access to or use of any Service(s) in away that violates the Agreement or use any Service(s) to access or use any intellectual property in or related to the Service(s) except as permitted under the Agreement;
7. to copy the Service(s), or any part, feature, function or user interface thereof except as expressly allowed under the Agreement; or
8. in order to benchmark Service(s) or to build similar or competitive products or Service(s) or to build training data.
Any capitalized terms used but not defined herein shall have the meaning set forth in the Agreement or the Documentation, as applicable. Notwithstanding anything to the contrary in the Agreement, in the event of any conflict between the Agreement and this AUP, this AUP shall govern. This AUP may be updated by Peruse from time to time upon reasonable notice (which may be provided through the Service(s) or by posting an updated version of this AUP). Any violation of this AUP may result in the suspension or termination of your access to and use of the Service(s).
If Subscriber becomes aware of any use or content that is in violation of the foregoing Acceptable Use restrictions, Subscriber agrees to promptly remedy such use or content. If you fail to do so, Peruse or its providers may suspend or disable access to the Service(s) (including Your Data) until Subscriber complies.
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