Terms of Service
1. SERVICES AND SUPPORT
1. Subject to the terms and conditions of this Agreement, Ascend will provide Customer with access to the Services through the internet. The Services are subject to modification from time to time at Ascend’s sole discretion, for any purpose deemed appropriate by Ascend. Ascend will use reasonable efforts to give Customer prior written notice of any such modification.
2. Ascend will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week. Notwithstanding the foregoing, Ascend reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Ascend.
3. Subject to the terms hereof, Ascend will provide reasonable support to Customer for the Services from Monday through Friday during Ascend’s normal business hours.
4. From time to time, Ascend may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Ascend shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Ascend may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Ascend shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Access to the Services may require the Customer to install certain software applications. Customer agrees to be bound by any end-user software agreements that govern the installation and use of such client software applications.
2.2. Customer will not (and will not allow any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) use the Services for the benefit of a third party; (v) use the Services for timesharing or Services bureau purposes or otherwise for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof, or (vi) use the Services to build an application or product that is competitive with any Ascend product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Ascend may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services). Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services.
2.3. Customer is responsible for all activity occurring under Customer’s user accounts and Customer (i) will use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, such as the General Data Protection Regulation (“GDPR”), international communications, export laws and the transmission of technical or personal data laws), and (ii) will not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights. Customer will: (i) notify Ascend immediately of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services and (ii) not impersonate another Ascend user or provide false identity information to gain access to or use the Service. Customer acknowledges that the Services are subject to U.S. export control laws and regulations and Customer represents that Customer is not a citizen of an embargoed country or prohibited end user under applicable U.S. export and anti-terrorism laws, regulations and lists. Customer represents that Customer is not an individual less than 18 years of age.
2.4. Customer will cooperate with Ascend in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Ascend may reasonably request. Customer will also cooperate with Ascend in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services. Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.5. Customer acknowledges and agrees that the Services operate with and extract data from other services operated or provided by third parties (“Third Party Services”). Ascend is not responsible for the operation of any Third-Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Ascend does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party’s terms and conditions.
3. OWNERSHIP; FEEDBACK
3.1. Except for the rights expressly granted under Section 1.1, Ascend retains all right, title, and interest in and to the Services (and all data, software, products, works, and other intellectual property created, used, or provided by Ascend for the purposes of this Agreement, including any copies and derivative works of the foregoing). Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. To the extent Customer provides Ascend with any feedback relating to the Services (including, without limitation, feedback related to usability, performance, interactivity, bug reports and test results) (“Feedback”), Customer shall, and hereby does, grant to Ascend a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Ascend notwithstanding anything else.
4. CUSTOMER DATA
4.1. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. Customer, not Ascend, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Ascend as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third-party rights (including, without limitation, intellectual property rights and rights of privacy). Ascend shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Ascend is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Ascend’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Ascend may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for Ascend’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Ascend’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Ascend in connection with Customer’s use of the Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.
5. FEES; PAYMENT
Customer shall pay Ascend’s then-standard fees for the Services as set forth on https://www.ascend.io/pricing or as selected by Customer during the ordering process (“Fees”). Ascend reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to Customer, effective upon the next renewal term. Unless otherwise specified in the ordering process: (i) Services are purchased as subscriptions for the term selected during the ordering process, (ii) Customer may add Services during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, (iii) any added subscriptions will terminate on the same date as the underlying subscriptions, and (iv) Fees shall be invoiced annually in advance and are payable in U.S. dollars within thirty (30) days from date of invoice. All Fees paid are non-refundable and are not subject to set-off.
5.1. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law, plus all expenses involved in the debt’s collection. Customer shall be responsible for all taxes associated with the Service (excluding taxes based on Ascend’s net income).
6. TERM AND TERMINATION
6.1. This Agreement will commence on the date Customer first accesses the Services and shall remain in effect until terminated under this Section 6.
6.2. Customer may terminate this Agreement for any or no reason by providing Ascend notice and ceasing to use the Services. Ascend may terminate this Agreement for any or no reason with thirty (30) days’ notice to Customer.
6.3. In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business.
6.4. Upon termination of this Agreement: (i) all rights granted herein to Customer will terminate and Customer will make no further use of the Services, and (ii) Customer agrees to pay Ascend all amounts due or accrued as of the date of such termination. The following provisions will survive termination of this Agreement: Sections 2-4, 6-11.
6.5. Without limiting the foregoing, Ascend may suspend or limit Customer’s access to or use of the Services if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Ascend’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) Ascend shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Ascend shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) Ascend shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.
During the term of this Agreement, each party (a “Disclosing Party”) may provide the other party (a “Receiving Party”) with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by Disclosing Party to Receiving Party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the Receiving Party reasonably should have known was the Confidential Information of the Disclosing Party, shall be considered Confidential Information; for the avoidance of doubt, the Services and terms of this Agreement are Confidential Information of Ascend. Receiving Party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of Disclosing Party. Receiving Party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section 7 shall not apply to any information that: (i) is made generally available to the public without breach of this Agreement, (ii) is developed by the Receiving Party independently from the Disclosing Party’s Confidential Information, (iii) is disclosed to Receiving Party by a third party without restriction, or (iv) was in the Receiving Party’s lawful possession prior to the disclosure to the Receiving Party and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party. Receiving Party may disclose Confidential Information as required by law or court order; provided that, Receiving Party provides Disclosing Party with prompt written notice thereof and uses its best efforts to limit disclosure. At any time, upon Disclosing Party’s request, Receiving Party shall return to Disclosing Party all Disclosing Party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof. Notwithstanding the foregoing, (a) Receiving Party may disclose Confidential Information to any third-party to the limited extent necessary to exercise its rights, or perform its obligations, under this Agreement; provided that, all such third parties are bound in writing by obligations of confidentiality and non-use at least as protective of the Disclosing Party’s Confidential Information as this Agreement and (b) all Feedback shall be solely Ascend’s “Confidential Information.” Notwithstanding anything else, nothing in this Agreement restricts Ascend from collecting or using aggregate and anonymous information about Customer’s usage of the Services.
Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that: (A) in the case of Customer as Indemnitor, the Customer Data or Customer’s use of the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right, including any rights of privacy, or violates any applicable law, or (B) in the case of Ascend as Indemnitor, the Services infringe, violate, or misappropriate any third party intellectual property or proprietary right. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Ascend do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Ascend (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Ascend, (iv) combined with other products, processes or materials not provided by Ascend (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith. THIS SECTION 8 STATES ASCEND’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.
THE SERVICES AND ASCEND CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. ASCEND (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO ASCEND HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable or transferable by a party except with the other party’s prior written consent; provided that, a party may transfer and assign its rights and obligations under this Agreement without consent to a successor to all or substantially all of its assets or business to which this Agreement relates. 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, communications, and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail (if to Ascend, to email@example.com; if to Customer, to Customer’s billing contact email address identified in the ordering process); or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the signature blocks below or on an applicable Order Form. Either party may update its address set forth above by giving notice in accordance with this section. This Agreement shall be governed by the laws of the State of California without regard to the conflict of law provisions thereof. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and Federal courts located in San Francisco, California. The prevailing party in any action or proceeding to enforce this Agreement will be entitled to recover costs and attorneys’ fees. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Ascend. Ascend may use Customer’s name and logo to identify Customer as a Ascend customer on its website and in other marketing materials. Customer agrees that Ascend may create a case study and/or issue a press release within 90 days of execution of this Agreement concerning Customer’s use of the Service. These materials will be statements of facts about the relationship between Customer and Ascend and will also constitute an endorsement. Ascend will not publicly distribute final versions of such documents without Customer’s prior written consent. Customer further consents to the use of Customer’s name in Ascend’s marketing and sales materials, including on its website.
Last Updated July 24, 2019. For earlier versions, please send a request to firstname.lastname@example.org (with “TOS Request” in the subject)