PATHMATICS ONLINE TERMS OF SERVICE 

These Terms of Service (these “Terms”) are entered into between Pathmatics Inc., a Delaware corporation with a place of business at 501 Santa Monica Blvd. Suite 301, Santa Monica, CA 90401 United States (“Pathmatics”) and Customer (as designated in the applicable Statement of Work) as of the Effective Date.  These Terms shall govern the provision of services and deliverables by Pathmatics to Customer.  All Customer purchase orders or statements of work (SOWs) issued by Pathmatics pursuant to these Terms shall be governed by these terms and conditions. Pathmatics and Customer may be collectively or individually referred to as the “Parties” or “Party” below.
 

GENERAL TERMS AND CONDITIONS

  1.  DEFINITIONS. The following definitions shall apply as used in these Terms:
    • “Content” means the audio and visual information, documents, software, text, images, and data contained or made available to Customer in the course of using the Services.
    • “Data” means the data generated, organized and provided by Pathmatics pursuant to and as further described in a Statement of Work.
    • “Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
    • “Pathmatics Connect” means the services Pathmatics provides as further described in the applicable Pathmatics Connect Statement of Work . 
    • “Pathmatics Custom” means the services Pathmatics provides as further described in the applicable Pathmatics Custom Statement of Work.
    • “Pathmatics Explorer” means the services Pathmatics makes available through the website https://explorer.pathmatics.com, including the website, the Pathmatics Explorer platform, and any other software or services offered by Pathmatics in connection therewith, and as further described in the applicable Pathmatics Explorer Statement of Work.
    • “Services” means the services that Pathmatics is required to provide to Customer under these Terms or applicable Statement of Work, which may include but are not limited to Pathmatics Explorer, Pathmatics Connect and/or Pathmatics Custom.
    • “User” or “Users” means Customer or its employees who are authorized to use the Services and have been supplied User identifications and passwords by Customer associated with email domains defined in the applicable Statement of Work (or by Pathmatics at Customer’s request).
  2.  
  3. LIMITED USER LICENSE. Pathmatics hereby grants Customer a non-exclusive, non-transferable, non-assignable right to use the Services, solely for Customer’s own internal business purposes and subject to these Terms.  All rights not expressly granted to Customer are reserved by Pathmatics and its licensors. Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make any Services, Data or Content available to any third party; (ii) modify or make derivative works based upon the Services, Data or Content; (iii) create Internet ‘links” to the Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; (iv) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (vi) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (vii) attempt to gain unauthorized access to the Services or its related systems or networks; or (viii) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of any of the Services, or (c) copy any ideas, features, functions or graphics of any of the Services.  If more than one individual User is found using a single User License, a misuse fee shall be assessed equal to three times the Additional User Licenses fee as shown on the applicable Statement of Work.
  4.  
  5. PAYMENT TERMS. Fees for the Services are set forth in the applicable SOW.  Pathmatics reserves the right to modify its fees and charges and to introduce new charges at any time, however fee changes to existing services will not apply during the current term of the SOW. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
  6.  
  7. BILLING. Pathmatics will provide Customer with an invoice via e-mail and/or postal mail.  Payment is due within thirty (30) calendar days from receipt of the invoice.  Unpaid balances shall be charged interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).  Charges are exclusive of any applicable federal or state taxes. Customer is solely responsible for paying all taxes and government charges.  To the fullest extent permitted by law, refunds (if any) are at the discretion of Pathmatics.  Nothing in these Terms requires Pathmatics to extend credit to any party.  Pathmatics reserves the right to discontinue the provision of any of the Services to Customer at any time for any late payments.
  8.  
  9. RESPONSIBILITIES, REPRESENTATIONS & WARRANTIES.
    • By signing the applicable SOW Customer is agreeing to these Terms, Customer represents and warrants that it has the legal power and authority to enter into these Terms (including on behalf of the business entity for whom Customer is an agent, employee or representative). Customer represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the Services and that its billing information is complete and accurate.
    • Customer is solely responsible for all use of its User accounts and agrees to abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data. Customer agrees to provide Pathmatics with complete and accurate billing and contact information. This information includes Customer’s legal company or individual name, street address, e-mail address, and name and telephone number of an authorized billing contact or credit card holder. Customer agrees to update this information within thirty (30) days of any change to it.  If the contact information provided by Customer is false or fraudulent, Pathmatics reserves the right to terminate Customer’s access to any of the Services in addition to any other legal remedies. Customer shall: (i) notify Pathmatics immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Pathmatics immediately and use reasonable efforts to stop immediately any copying or distribution of Data or Content that is known or suspected by Customer or its Users; and (iii) not impersonate another User or provide false identity information to gain access to or use any of the Services.
  10.  
  11. INTELLECTUAL PROPERTY. Pathmatics alone (and its licensors, where applicable) owns all right, title and interest, including all related Intellectual Property Rights, in and to the Services, Data and Content.  These Terms are not a sale and do not convey to Customer any rights of ownership in or related to any of the Services, Data or Content or the Intellectual Property Rights owned by Pathmatics. The Pathmatics name, the Pathmatics logo, and the product names associated with the Services are trademarks of Pathmatics or third parties, and no right or license is granted to use them. You may choose to or we may invite Customer to submit comments or ideas about any of the Services, including without limitation about how to improve the Services or other products (“Ideas”).  By submitting any Idea through any means including but not limited to e-mail, phone conversations, written communication or in person communication, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place Pathmatics under any fiduciary or other obligation, and that Pathmatics is free to use the Idea without any additional compensation to Customer, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
  12.  
  13. TERMS; TERMINATION. These Term shall commence on the Effective Date of the applicable SOW and shall continue for the initial term defined in the applicable SOW (“Initial Term”). Upon expiration of the Initial Term, these Terms shall automatically renew for successive one (1) year terms unless either Party notifies the other Party of termination at least ninety (90) days prior to the expiration of the then current term.  However, notwithstanding the foregoing, SOWs entered into under these Terms will survive the expiration or termination of these Terms for the term specified in the applicable SOW and shall continue to be governed by the terms, obligations and conditions thereof, unless sooner terminated in accordance with their terms.  Pathmatics reserves the right to suspend or terminate any SOW or any User account or license, for any breach of these Terms or any SOW (and any payment obligations) or unauthorized use of any of the Services, Data or Content.  If Customer’s account is suspended or terminated, for any reason, Customer’s right to access the Services immediately terminates.  Upon termination of these Terms for any reason, the licenses granted herein to Customer by Pathmatics shall automatically and immediately terminate.  Within fifteen (15) days of termination of Customer’s User account, Pathmatics shall have no obligation to maintain or forward any data that Customer submitted to any of the Services and shall be permitted to delete all such data, if any, without liability therefor.  If Pathmatics is ever unable to provide any Service, Data or Content for a specific region or device for technical, legal, policy, or any other reason, Pathmatics shall notify Customer of the affected region(s) or device(s) and provide Customer a pro-rated refund for any pre-paid amounts covering those region(s) or device(s)
  14.  
  15. USER PRIVACY. Pathmatics' privacy policy may be viewed at http://www.pathmatics.com/privacy.  Pathmatics reserves the right to modify its privacy policy in its reasonable discretion from time to time, and notice of these changes may be provided by e-mail.  Pathmatics reserves the right to notify all Users of the Services of important announcements regarding the Services via e-mail
  16.  
  17. DISCLAIMER PATHMATICS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES, DATA OR CONTENT. PATHMATICS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF ANY OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE, SECURE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICES OR THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES, DATA AND CONTENT IS PROVIDED TO CUSTOMER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY PATHMATICS AND ITS LICENSORS.
  18.  
  19. LIMITATIONS ON LIABILITY. IN NO EVENT SHALL PATHMATICS’ AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL PATHMATICS OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH ANY OF THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF PATHMATICS HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, and to that extent, the exclusions set forth above may not apply to Customers.
  20.  
  21. MUTUAL INDEMNIFICATION. Customer shall indemnify and hold Pathmatics, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim, which if true, would constitute a violation by Customer of its representations and warranties; or (ii) a claim arising from the breach by Customer or its Users of these Terms, provided in any such case that Pathmatics (a) gives written notice of the claim reasonably promptly to Customer; (b) gives Customer substantial control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless Customer unconditionally release Pathmatics of all liability and such settlement does not affect Pathmatics business or any Service); (c) provides to Customer all reasonable information and assistance; and (d) has not compromised or settled such claim. Pathmatics shall indemnify and hold Customer and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Services directly infringe a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that Customer (a) promptly give written notice of the claim to Pathmatics; (b) give Pathmatics sole control of the defense and settlement of the claim (provided that Pathmatics may not settle or defend any claim unless it unconditionally releases Customer of all liability); (c) provide to Pathmatics all available information and assistance; and (d) have not compromised or settled such claim. Pathmatics shall have no indemnification obligation, and Customer shall indemnify Pathmatics pursuant to these Terms, for claims arising from any infringement arising from the combination of the Services with any of Customer’s products, service, hardware or business process(s).
  22.  
  23. MISCELLANEOUS.
    • Customer agrees that no joint venture, partnership, employment, or agency relationship exists between Customer and Pathmatics.
    • Customer hereby grants Pathmatics the right to use Customer’s name and/or logo for marketing purposes including but not limited to Pathmatics’ website, case studies, webinars and trade show booth displays; provided, however, that Customer may revoke such authorization at any time upon written notice to Pathmatics.
    • All training and support for Customer shall be delivered remotely via phone or internet. Any on site requirements for training or support, shall be pre-approved by Customer in writing and Pathmatics will be reimbursed for the travel expenses (i.e., airfare, lodgings, meals and local transportation) incurred in association with the training and support delivered.
    • These Terms and any applicable SOW are the entire agreement of the parties relating to this subject and they supersede all other commitments, negotiations and understandings. These Terms cannot be assigned without written consent of the non-assigning party, except that Pathmatics may assign these Terms (a) to an acquirer of substantially all of that party’s assets, stock or business by sale, merger or otherwise or (b) to a corporate affiliate. Sections 1, 3, 4, 5, 6, 7 and 9-12 will survive expiration or termination.  Any claims (in court or arbitration) must be brought in the initiating party’s individual capacity and not as a plaintiff or member in any class action or other similar proceeding.
    • These Terms are made in and shall be governed by the laws of the State of California without reference to conflicts of laws.
    • Any action arising under or related to these Terms will be resolved in the state or federal courts (and the parties hereby consent to personal jurisdiction) in the County of Los Angeles, California. The prevailing party is entitled to recover all reasonable fees, costs and expenses of enforcing its rights, including reasonable attorneys’ fees.