Continual Services Agreement

CONTINUAL, INC. WITH A PLACE OF BUSINESS AT 95 3RD ST, SAN FRANCISCO, CA 94103 (“CONTINUAL”)  PROVIDES THE CONTINUAL SERVICE (THE “SERVICE”) SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS SERVICE AGREEMENT (THE “AGREEMENT” ) AND RELATED FEE SCHEDULE AND POLICIES POSTED ON CONTINUAL’S WEBSITE UNLESS SUPERSEDED BY A SIGNED ORDER FORM (“ORDER FORM’’) AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM.  ALL USAGE OF THE SERVICE ARE GOVERNED BY THIS AGREEMENT. PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT”, OR BY ACCESSING OR USING THE CONTINUAL SERVICE, REGISTERING FOR AN ACCOUNT ON HTTPS://CONTINUAL.AI OR RELATED SUBDOMAINS INDICATES AGREEMENT WITH THESE TERMS. CUSTOMER: (A) ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THESE TERMS AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE, INCLUDING, WITHOUT LIMITATION, THE CONTINUAL PRIVACY POLICY, AVAILABLE AT HTTPS://WWW.CONTINUAL.AI/LEGAL/PRIVACY-POLICY; (B) AFFIRMS THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND (C) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION.AND ACCOMPANYING AGREEMENT. THE TERMS ON ANY PURCHASE ORDER, CONFIRMATION, OR SIMILAR DOCUMENT SUBMITTED BY CUSTOMER TO CONTINUAL WILL HAVE NO EFFECT AND ARE HEREBY REJECTED.

TERMS AND CONDITIONS

1. SERVICE AND SUPPORT

1.1 Provision of Service. Continual grants customer, which orders the Service and to whom, the Service are licensed to and/or whose authorized users accesses and use Service (“Customer”) the right to access and use the Service in accordance with this Agreement, the published documentation for the Service (“Documentation”) and Customer’s applicable subscription which shall indicate the applicable  metrics (the “Subscription”). To the extent use of the Service requires Customer to install and use a SDK or command line client  (“Client Software”), Continual grants to Customer a limited, non-transferable, non-sublicensable, non-exclusive license during the Subscription to use the object code form of the Client Software internally in connection with Customer's use of the Service, subject to the terms and conditions of this Agreement and the Documentation. Subject to the terms hereof, Continual will provide Customer with reasonable technical support services and professional services (if applicable) in accordance with the terms set forth in the Subscription.

1.2 Updates to the Service. Continual may from time to time make updates to the Service as it deems reasonably necessary, and this Agreement shall apply to such updated Service. Customer’s continued use of the updated Service indicates Customer’s acceptance of the updates.

1.3 Customer System. Use of the Service may require  integration with certain third party products and services, such as external data providers, model providers, cloud platforms, customer applications, etc.  (“Customer System”) at Customer’s discretion. Customer shall be responsible for obtaining and maintaining any equipment and ancillary third party service needed to connect to, access or otherwise use the Service. Use of any Customer System is at Customer’s sole risk and will be governed by separate terms and conditions, separate privacy policies relating to usage of data that Customer may share through the Customer System in the course of using the Service, other applicable policies, and may include separate fees and charges as promulgated by the third party provider of the Customer System. Continual may display content from third parties through the Service or may provide information about or links to a Customer System. Customer’s interactions with any such third parties, and any terms, conditions, warranties, or representations associated with such interactions, are solely between Customer and the applicable provider of the Customer System. Continual is not responsible or liable for any loss or damage of any sort incurred as the result of any such interactions or as the result of the presence of such Customer System made available through the Service. Customer is solely responsible for the installation, maintenance, repair, use, and upgrade of any Customer System(s) the Service is used with. Continual disclaims all warranties of any kind with respect to any Customer System(s).

1.4 Restrictions on Use of the Service. Customer agrees to access and use the Service solely for Customer’s business purposes, in accordance with the Documentation, and in accordance with all applicable laws. Customer shall not (and shall ensure that Customer’s authorized users do not): (i) copy, reproduce, frame, mirror, modify, decompile, disassemble, create derivative works based on, or reverse engineer the Service or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to any of the Service, or use any part of the Service for time sharing or similar purposes for the benefit of any third party; (iii) sell, resell, rent or lease the Service; (iv) remove any copyright or proprietary notices contained in the Service or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Service; (vi) access or use (or permit a third party to access or use) the Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Service or for any other benchmarking or competitive purposes including any penetration testing of the Service; (vii) attempt to gain unauthorized access to the Service or any related systems, software or networks; (viii) access the Service in order to build a competitive product, or copy any features, functions or graphics of the Service; (ix) use the Service to transmit malicious code; or (x) make any use of, or take any other action with respect to, the Service or any component thereof in a manner that violates applicable law or any provision of the Agreement. In addition, Unless specified otherwise in the Subscription, Customer specifically agrees not to submit to the Service any Customer Data consisting of: (a) payment card industry data; or (b) personal health information, patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“HIPAA Data”). “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Customer acknowledges that Continual is not a Business Associate or subcontractor (as those terms are defined in HIPAA). Continual will have no liability under this Agreement for HIPAA Data, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules, or regulations unless Customer has entered into Business Associate Addendum (“BAA”) with Continual first.  Upon mutual execution of the BAA, the BAA is incorporated by reference into this Agreement and is subject to its terms.  Customer shall be liable to Continual for any violation of the terms and conditions of the Agreement by Customer or by any authorized user. The specific Service that Customer selects may have further limitations as outlined in the applicable Subscription.

1.5 Acceptable Use. In addition to the prohibitions set forth in Section 1.4 above  or in the Acceptable Use Policy listed on https://www.continual.ai/legal/acceptable-use-policy, Customer agrees not to, and not to allow third parties to use the Service: to violate, or encourage the violation of, the legal rights of others (for example, infringing or misappropriate the intellectual property rights of others in violation of the Digital Millennium Copyright Act); to engage in, promote or encourage illegal activity; for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website); to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; to interfere with the use of the Service, or the equipment used to provide the Service, by customers, authorized resellers, or other authorized users; to disable, interfere with or circumvent any aspect of the Service; to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisements or other solicitations (“spam”); or to use the Service, or any interfaces provided with the Service in a manner that violates the terms of this Agreement. If Customer becomes aware of any use or content that is in violation of the foregoing restrictions, Customer agrees to promptly remedy such use or content.

1.6 Export Compliance. Customer may not remove or export from the United States or allow the export or re-export of the Service, Client Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2. CONFIDENTIALITY; PROPRIETARY RIGHTS; AND CUSTOMER DATA

2.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Continual includes non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Continual to enable the provision of the Service (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Service or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

2.2 This Agreement does not transfer any right, title or interest in any intellectual property right to each other, except as expressly set forth in this Agreement. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Service, such as outputs from the Service, model parameters, system configuration, knowledge base documents, user inputs, , and alike.  Continual shall own and retain all right, title and interest in and to (a) the Service and Client Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with any professional services or support, and (c) all intellectual property rights related to any of the foregoing. There are no implied rights. Continual reserves all rights not expressly granted herein.

2.3 Access to Customer Data. Customer understands and acknowledges that the ability of Customer and its authorized users to operate and utilize the Service is dependent upon Customer providing or making available for access by the Service all required Customer Data via Customer System(s). Customer will ensure that Customer’s use of the Service, including any submission or of Customer Data, is at all times compliant with Customer’s privacy policies and all local, state, federal and international law, regulations and conventions applicable to Customer and Continual, including, without limitation, those related to data privacy, data transfer, international communications and the exportation of technical or personal data. As between Customer and Continual, Customer is solely and exclusively responsible for obtaining and providing all consents, authorizations, permissions, notices, and access to Customer System(s), as may be necessary or helpful to facilitate the Service’s access to the Customer Data. Customer acknowledges and agrees that Continual shall not be liable to Customer or to any third party for any failure, delay, or deficiency in the performance of the Service arising from (i) any system failure or technical deficiency on the part of Customer or its service providers that prevents or limits access by the Service to Customer Data or other necessary Customer content, materials, data, or information, or (ii) any error or deficiency in the Customer Data. As between Customer and Continual, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and for ensuring that Customer Data does not: (a) infringe, misappropriate or violate the Intellectual Property Rights, rights of privacy or publicity, or other proprietary rights of any third party, (b) violate any applicable law, or (c) contain any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.

2.4 Data Collection. If Customer includes any Personal Data in the Customer Data submitted to the Service, (i) Continual will hold and store Customer Data on Customer’s behalf, and Customer is the data controller of such data; (ii) Continual will process personal data in compliance with this Section and Customer’s instructions. Continual will use commercially reasonable efforts designed to prevent the unauthorized disclosure or destruction of Customer Data stored with Continual in accordance with our Security Policy. If Customer will transmit any Customer Data that includes Personal Data regarding a resident of the European Union, Customer may contact Continual to request a data processing addendum ("DPA"). Upon mutual execution of the DPA, the DPA is incorporated by reference into this Agreement and is subject to its terms.

2.5 Aggregated Statistics. Notwithstanding anything to the contrary, Continual shall have the right to collect and analyze aggregate performance data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies and Continual will be free (during and after the term hereof) to (i) use such information to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Continual offerings, and (ii) disclose such aggregate performance data solely in aggregate or other de-identified form in connection with its business.  No rights or licenses are granted except as expressly set forth herein.

2.6 Feedback. Continual welcomes and encourages Customer to provide feedback, comments and suggestions for improvements to the Service (“Feedback“). Customer may submit Feedback by emailing Continual through the Contact section of the website, or by other means of communication. Any Feedback Customer submits to Continual will be considered non-confidential and non-proprietary to Customer. By submitting Feedback to Continual, Customer grants Continual a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to Customer and without the obligation to identify Customer.

3. PAYMENT OF FEES; REGISTRATION

3.1 As indicated on the applicable Subscription, all fees (“Fees”) are payable in the currency of the United States through Continual’s designated payment processor (“Payment Processor”) or Continual may choose to be billed through an invoice, in which case, full payment for invoices issued in any given month must be received by Continual thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of one and one half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer will be responsible for all taxes resulting from the performance of the Service other than taxes on Continual’s income. If all or any part of any payment owed to Continual under this Agreement is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Continual of the amounts otherwise payable under this Agreement. All fees paid under this Agreement are non-refundable and are not subject to set-off. Subscriptions are non-cancelable during the Subscription Term. the event Customer in good faith disputes any Fees due under any invoice issued by Continual, Customer shall pay the undisputed amount, and the parties shall use diligent efforts to resolve any such dispute. Continual will also be entitled to recover from Customer the costs and expenses incurred in connection with collecting any undisputed Fees (including without limitation costs of investigation, collection agency, court, and attorneys' fees).

3.2 Resellers and Payment Processors. Customer may elect to purchase certain Service(s) through a reseller authorized by Continual to resell the Service ("Reseller") or elect to pay for the Service through a third party that processes Customer's payments (each a "Payment Processor"). Customer's obligation for payment to, and relationship with, such Reseller or Payment Processor is between Customer and such Reseller or Payment Processor and is governed by the Customer’s agreement with such Reseller or Payment Processor. If Customer elects to use a Reseller or Payment Processor in connection with the Service, Customer acknowledges and agrees that information about Customer, this Agreement and any Subscriptions may be disclosed to such Reseller or Payment Processor.

3.3 Trials. Customer’s subscription to the Service may be preceded by a trial (a “Trial”). If Customer receives a Trial, Customer may only use those portions of the Service included in the Trial and only for the duration of that Trial, in each case as communicated by Continual to Customer in writing, and only for the purpose of evaluating the desirability of purchasing a subscription to the Service. Upon the expiration of any Trial, Customer’s access to the Service will cease, except to the extent Customer has purchased and/or registered for a Subscription license in accordance with the terms hereof.

3.4 Subscriptions and True up. Except as otherwise provided in the applicable Subscription: (i) licenses are purchased for the Term stated therein; (ii) additional license quantities may be added during a Term at the same pricing as the underlying subscription and shall be co-terminated and prorated for the remainder of the applicable Term. If Customer’s actual license usage exceeds the license usage quantity (determined monthly) set forth in the Subscription, Continual will notify Customer (email sufficing) of such overage and will invoice Customer the Fees for the excess license usage, prorated for the remainder of the then-current Term.       

3.5 Change in Fees. Continual reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Subscription Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). Customer’s continued use of the Service after the Subscription fee change comes into effect constitutes Customer’s agreement to pay the modified Subscription fee amount.  

3.6. Registration. To register to use the Service, Customer must provide Continual with the information requested in the registration process, including Customer’s name and work email address. Customer is responsible for all activities that occur under Customer’s account; Continual and Continual's affiliates are not responsible for unauthorized access to Customer’s account. Customer will contact Continual immediately if Customer believes an unauthorized third party may be using Customer’s account or if Customer’s account information is lost or stolen. Customer will provide complete and accurate information during the registration process and will update it to ensure it remains accurate. Continual reserves the right to refuse registration of, or cancel accounts it deems inappropriate.

4. TERM; TERMINATION AND SUSPENSION

4.1 Term. Subject to earlier termination as provided below, this Agreement is for the initial Subscription Term as specified in the Subscription, and shall be automatically renewed for additional periods of the same duration as the initial Subscription Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

4.2 Termination. Continual may terminate this Agreement at any time on thirty (30) days advance notice. Continual may also terminate Customer’s account and this Agreement, or suspend Customer’s account, immediately if (i) Continual changes the way Continual provides or discontinues the Service; (ii) Customer’s account was suspended under this Agreement and Customer has not remediated the reason for the suspension; or (iii) Continual determines that: (1) Customer’s use of the Service poses a security risk to the Service or any third party; (2) Customer’s use of the Service may adversely impact other users of the Service; (3) Customer’s use of the Service may subject Continual, Continual's affiliates, or any third party to liability; (4) Customer’s use of the Service may be fraudulent; (5) Customer is in breach of this Agreement; or (6) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer’s assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or with ten days’ notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement.  

4.3 Effect of Termination. Upon termination of this Agreement (i) all Customer’s rights under this Agreement immediately terminate and Customer must cease using the Service (except to retrieve the Customer Data during the time period stated below), and (ii) Customer must pay all unpaid Fees to Continual. Upon any termination, Continual will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days from the effective date of termination, but thereafter Continual may delete all stored Customer Data.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

4.4 Customer understands and agrees that Continual may change, suspend or discontinue any part of the Service and the Service as a whole. Continual will notify Customer of any material change to or discontinuation of the Service by email or via Continual's website. If Continual discontinues the Service (excluding for Customer’s breach), Customer will receive a pro-rata refund for any pre-paid but unused Fees.

5. WARRANTY AND DISCLAIMER

5.1 Continual warrants that the Service will materially conform to the specifications set forth in the applicable  Documentation for the duration of Customer’s Subscription Term. If Continual is unable to correct any reported non-conformity with this warranty, Continual may terminate the applicable Subscription and as Customer’s sole and exclusive remedy and Continual’s sole obligation, Customer will be entitled to receive a pro-rata refund of any prepaid but unused Subscription Fees. This warranty will not apply if the error or non-conformance was caused by misuse of the Service, or third-party hardware, software, or Service used in connection with the Service.

5.2 The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Continual or by third-party providers, or because of other causes beyond Continual’s reasonable control, but Continual shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  Customer should regularly back up Customer Data while using the Service. EXCEPT AS PROVIDED IN THIS AGREEMENT, CUSTOMER’S USE OF THE SERVICE AND ANY CONTENT OR MATERIALS OR OUTPUTS PROVIDED THEREIN OR THEREWITH IS AT CUSTOMER’S SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY CONTINUAL AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICE AND ANY CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING OUTPUTS AND THE OPEN-SOURCE MATERIALS) ARE PROVIDED BY CONTINUAL “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CONTINUAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN ADDITION, CONTINUAL DOES NOT REPRESENT OR WARRANT THAT CUSTOMER’S USE OF THE SERVICE OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING OUTPUTS AND THE OPEN-SOURCE MATERIALS) WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CONTINUAL REPRESENT OR WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS. WHILE CONTINUAL ATTEMPTS TO MAKE CUSTOMER’S USE OF THE SERVICE AND ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING OUTPUTS AND THE OPEN-SOURCE MATERIALS) SAFE, CONTINUAL CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING OUTPUTS AND THE OPEN-SOURCE MATERIALS) OR CONTINUAL SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT OR MATERIALS. CUSTOMER ASSUMES THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE AND ANY CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING OUTPUTS AND THE OPEN-SOURCE MATERIALS). CONTINUAL SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF CONTINUAL, INCLUDING ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE AGREEMENT) ARE MADE FOR THE BENEFIT OF CONTINUAL, THE CONTINUAL PARTIES, AND CONTINUAL’S RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS (OTHER THAN CUSTOMER), SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.

6. INDEMNITY

6.1 By Continual.  Continual shall indemnify, defend, and hold Customer harmless from and against any and all damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") awarded or paid in settlement of any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Service, or any use of the Service in accordance with this Agreement, infringes or misappropriates such third party's United States patent or any copyright. The foregoing obligations of Continual do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Continual (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) combined with other products, processes or materials not provided by Continual (where the alleged Losses arise from or relate to such combination), or (iv) Customer’s use of the Service is not strictly in accordance herewith. This section states Continual’s sole liability to, and Customer’s exclusive remedy against Continual for relevant claims as described in this section.

6.2  If Continual receives information about an actual or potential claim of infringement, misappropriation or other violation of intellectual property rights related to Service, or, in Continual’s reasonable opinion, the Service are likely to become enjoined or materially diminished as a result of an actual or potential Third-Party Claim, Continual may in its sole discretion and at no cost to Customer: (i) modify the Service or any portion thereof, without diminishing the Service, so that they no longer infringe or misappropriate, (ii) obtain a license, at Continual’s sole expense, for Customer’s continued use of the Service in accordance with the Agreement, or (iii) terminate Customer’s access to the Service upon written notice and refund any prepaid fees covering the remainder of the Subscription Term of the terminated Service.

6.3 By Customer.  Customer shall indemnify, defend, and hold harmless Continual from any Losses incurred by Continual resulting from a Third-Party Claim arising out of or related to i) breach of this Agreement or violation of applicable law or regulation by Customer; (ii) Customer Data or the combination of Customer Data with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Customer Data or by the use, development, design, production, advertising or marketing of Customer Data or outputs of the Service; (iii) the use of the Service or (iv) any Customer System(s).

6.4 The indemnitee will promptly notify indemnitor of any claim subject to this Section, but indemnitee's failure to promptly notify indemnitor will only affect indemnitee’s obligations to the extent that indemnitee’s failure prejudices indemnitor’s ability to defend the claim. Indemnitor may: (a) use counsel of indemnitor’s own choosing (subject to indemnitee’s reasonable written consent) to defend against any claim; and (b) settle the claim as indemnitor deems appropriate, provided that indemnitor obtain indemnitee's prior written consent before entering into any settlement.

7. LIMITATION OF LIABILITY

(i) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, ANY LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY COST OF COVER ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(ii) EXCEPT FOR ANY UNDISPUTED FEES DUE FROM CUSTOMER, CUSTOMER’S BREACH OF BREACH OF 1.4  (RESTRICTIONS ON USER OF THE SERVICE) OR 1.5 (ACCEPTABLE USE OF THE SERVICE), CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 5 (INDEMNITY), OR IN THE EVENT OF DAMAGE CAUSED INTENTIONALLY OR BY GROSS NEGLIGENCE OR OF DEATH, BODILY INJURY OR DAMAGE TO HEALTH, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR THE NUMBER OF CLAIMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER FOR THE PERFORMANCE THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY. THE PARTIES AGREE THAT THIS SECTION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES IN LIGHT OF THE TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREUNDER (“GENERAL LIABILITY CAP”).

(iii) IN THE CASE OF DATA BREACH CLAIMS, CONTINUAL’S TOTAL LIABILITY TO CUSTOMER AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES (2X) THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER FOR THE PERFORMANCE THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEDING THE INITIAL INCIDENT GIVING RISE TO THE LIABILITY (“DATA BREACH CLAIMS CAP”). IN NO EVENT SHALL CONTINUAL BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA BREACH CLAIMS CAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF CUSTOMER (AND/OR ITS AFFILIATES) HAS ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE DATA BREACH CLAIMS CAP.

8. MISCELLANEOUS

8.1 Miscellaneous. Continual and Customer are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement. Customer may not assign this Agreement, or delegate or sublicense any of Customer’s rights under this Agreement, without Continual's prior written consent. Continual may without restriction, assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion. A party's failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit that party's right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

8.2 Entire Agreement. This Agreement is the entire agreement between Customer and Continual regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Continual, whether written or verbal, regarding the subject matter of this Agreement.

8.3 Notice. All communications and notices to be made or given pursuant to this Agreement must be in English. Continual may provide any notice to Customer under this Agreement by posting a notice in the Service or sending a message to the email address associated with Customer’s account. Customer will be deemed to have received any email sent to the email address then associated with Customer’s account when Continual sends the email, whether or not Customer actually receive the email. To give Continual notice under this Agreement, Customer must (1) email Continual, Inc. at legal@continual.ai, or (2) send Continual notice by certified mail, return receipt requested, to Continual at 95 3rd St, San Francisco, CA 94103, Attn: CEO. with cc: to  legal@continual.ai.

8.4 Dispute Resolution and Arbitration

(i) This Dispute Resolution and Arbitration Agreement shall apply if Customer (i) resides in the United States; or (ii) does not reside in the United States, but brings any claim against Continual in the United States.

(ii) AGREEMENT TO ARBITRATE. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE SETTLED BY BINDING ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION BY, IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. IF THERE IS A DISPUTE ABOUT WHETHER THIS ARBITRATION AGREEMENT CAN BE ENFORCED OR APPLIES TO OUR DISPUTE, CUSTOMER AND CONTINUAL AGREE THAT THE ARBITRATOR WILL DECIDE THAT ISSUE.

(iii) Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, Customer and Continual each agree to notify the other party of the dispute and attempt to negotiate an informal resolution among the parties’ management team. Continual will contact Customer at the email address Customer has provided to Continual; Customer can contact Continual’s customer service team by emailing Continual at the contact addresses provided on the Site. If after a good faith effort to negotiate, a party feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.

(iv) Exceptions to Arbitration Agreement. Customer and Continual each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; or (ii) any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).

(v) Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Commercial Arbitration Rules (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.

(vi) Modification to AAA Rules - Arbitration Hearing/Location. Customer agrees that any required arbitration hearing will be conducted in the English language by one (1) mutually agreed upon arbitrator;  and at Continual’s sole and complete discretion: (a) in San Francisco County or in any other location to which Customer and Continual both agree; (b) via phone or video conference; or (c) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.

(vii) JURY TRIAL WAIVER. CUSTOMER AND CONTINUAL ACKNOWLEDGE AND AGREE THAT THEY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AS TO ALL ARBITRABLE DISPUTES.

(viii) NO CLASS ACTIONS OR REPRESENTATIVE PROCEEDINGS. CUSTOMER AND CONTINUAL ACKNOWLEDGE AND AGREE THAT THEY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY-GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING AS TO ALL DISPUTES. FURTHER, UNLESS CUSTOMER AND CONTINUAL BOTH OTHERWISE AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF ANY CLASS OR REPRESENTATIVE PROCEEDING. IF THIS PARAGRAPH IS HELD UNENFORCEABLE WITH RESPECT TO ANY DISPUTE, THEN THE ENTIRETY OF THE ARBITRATION CLAUSE WILL BE DEEMED VOID WITH RESPECT TO SUCH DISPUTE.

(ix) Severability. Except as provided in the immediately preceding paragraph, in the event that any portion of this Arbitration clause is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration clause shall be given full force and effect.

8.5 Choice of Law; Jurisdiction. This Agreement will be interpreted in accordance with the laws of the State of California and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings (other than small claims actions) that are excluded from the Arbitration clause above must be brought in state or federal court in San Francisco, California, unless both parties agree to some other location. Both parties consent to venue and personal jurisdiction in San Francisco, California.

8.6 Survival. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity, limitations of liability and dispute resolution.

8.7 Force Majeure. Continual is not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Continual's reasonable control, including 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, acts or orders of government, acts of terrorism, or war.