FACTLY TERMS OF SERVICE

The provisions set out in these terms of service (“Terms of Service”) below apply to and govern (a) the provision of the Services defined below by Factly Inc. (“Factly”, “we”, “us”), and (b) your (“Client”, “you”, “your”) access to and use of the Services.  These Terms of Service are effective as of the date you subscribe to the Services and have signed an applicable Order Form (the “Effective Date”).  

By accessing and using the Services, Client is accepting and agreeing to be bound by these Terms of Service.  “Client”, “you”, “your” or similar means the person or legal entity accessing or using the Services.

Factly reserves the right at any time to update and change these Terms of Service, in our sole discretion.  We will change the “Modified” date above when we have done so. Continued use of the Services after any changes have been made will constitute your acceptance and consent to such changes.  Client is responsible for regularly reviewing these Terms of Services.

Notwithstanding anything stated herein, if Client and Factly have executed a written agreement for access to and use of the Services (the “Signed Agreement”), then the terms of the Signed Agreement shall govern and this agreement shall have no effect.

The parties agree as follows:

1. DEFINITIONS

Client” means the entity named above which has signed an Order Form. 

Client Data” means electronic data and information submitted by or for Client to the Services for processing. 

Content” means information obtained from Third Party Services and Third Party Datasets which are processed by the Services together with the Client Data to form the basis of the Reports. 

Malicious Code” means code, files, scripts, agents or programs including, for example, viruses, worms, time bombs, infected files and Trojan horses or other computer programming routines that are intended to or reasonably may damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another. 

Order Form” means an ordering document, including any addenda and supplements thereto, specifying the Services to be provided hereunder that is entered into between Client and Factly.    

Personal Data” means any information defined as personally identifiable or personal information by the applicable Rules of the jurisdiction in which the relevant individual resides.

Reports” means the results, in graphical or report form, made available to the Client as a result of the processing undertaken by the Services utilizing the Client Data and/or the Content. 

Rules” means all applicable privacy and data protection laws, rules, regulations, and regulatory guidelines, as well as any applicable self-regulatory guidelines.

Services” means the web-based software-as-a-service application, data analysis, application programming interfaces and related algorithms and processes that are ordered by Client under an Order Form and made available online by Factly. “Services” excludes Content, Third Party Services, Third Party Datasets, and Reports.  

Sensitive Personal Data” means data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or finances (including credit card data) or data concerning a natural person’s sex life or sexual orientation.

Terms of Service” means these Terms of Service and any exhibits, schedules and addenda attached to or incorporated by reference hereto.  

“Third Party Datasets” means datasets provided by a Third Party Service which are authorized by the Client to be used with Client Data and the Services.

“Third Party Service” means (a) a software application provided by a third party services provider which is authorized by the Client (i) to interoperate with the Service, (ii) to provide Client Data to the Services or from which the Services may access Client Data or (iii) to use outputs, including Reports, from the Services; or (b) an entity which makes Third Party Datasets available under an agreement with Factly.   Third Party Services may include social media platforms, data management platforms, and customer relations management applications.

User” means a natural person who is authorized by Client to use the Services, for whom Client has purchased the Services, and to whom Client has supplied a user identification and password.  Users may include employees, consultants, contractors and agents of Client, and third parties with which Client transacts business. A User does not include (i) an entity unaffiliated with Client or (ii) an automated process or bot.

2. TRIAL OF SERVICES

If Client is accessing and using the Services under a trial (designated as “trial” or similar in the applicable Order Form), the following provisions shall apply:  notwithstanding sections 10.1 and 10.2 of the Terms of Service, Factly shall have no indemnification obligations with respect to the Services during the trial period.  Notwithstanding anything to the contrary in Section 11.1, Client’s total liability for any damages arising out of Client’s use of the Services during the trial period, any breach by Client of these Terms of Service or any of Client’s indemnification obligations hereunder shall not exceed $50,000.  Unless the Services accessed and used under a trial are converted to a paid subscription within 30 days of the end of the term specified in the Order Form, all Client Data submitted to the Services and Reports generated during the trial will be irretrievably deleted from the Services.

3. PROVISION OF SERVICES

3.1 Provision of the Services. Factly hereby grants to Client a subscription to use and access the Services in accordance with these Terms of Service and the applicable Order Forms. Factly will (a) make the Services available to Client pursuant to this Agreement and the applicable Order Forms, (b) provide standard technical customer support for the Services at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for:  (i) scheduled maintenance and planned downtime and (ii) any unavailability caused by a Force Majeure event as defined in Section 13.6.  

3.2. Data Privacy.  Factly will provide the Services in compliance with all applicable Rules and Factly’s permitted use of Client Data, subject to Client’s access to and use of the Services in accordance with these Terms of Service, Order Forms, applicable Rules, and applicable industry guidelines and principles.    

3.3 Data Security. Factly shall maintain appropriate administrative, physical, and technical safeguards providing for the security, confidentiality and integrity of Client Data.  Factly shall not (a) modify Client Data, (b) disclose Client Data except in accordance with the provisions of the section entitled “Confidential Information” or as expressly permitted in writing by the Client; (c) access Client Data except in accordance with this Agreement and any Order Forms in order to provide the Services or (d) use Client Data other than to provide the Services.

3.4 Factly Employees.  Factly is wholly responsible for the actions and performance of its employees and their compliance with Factly’s responsibilities under this Agreement.

3.5 Limitation, Suspension or Termination of Access.  Without limiting any other rights or remedies of Factly pursuant to these Terms of Service, Client agrees that certain circumstances may require Factly to suspend, terminate or limit (as appropriate and as determined in Factly’s sole discretion) Client’s access to or use of the Services, or any component thereof, without notice in order to: (a) prevent any misuse or abuse of the Services; (b) prevent any damage to, or degradation of the integrity of Factly’s systems or property; (c) comply with any law, regulation, court order, or other governmental request or order; or (d) otherwise protect Factly from potential legal liability or harm to its reputation or business.  Client agrees that Factly shall not be liable to Client for limiting or terminating Client’s access to the Services as provided above.  

3.6 Removal of Content or Third Party Services. If Factly is required by a licensor or any third party rights holder to remove Content, or receives information that Content provided to Client may violate applicable law or third-party rights, or if the owner of Content has made such Content no longer publicly available, Factly may discontinue Client’s access to such Content through the Services. If Factly receives information that a Third Party Service used with the Services may violate applicable law or third-party rights, Factly may so notify Client and disable such Third Party Service. If Client does not take action(s) requested by Factly in accordance with the above, Factly may disable the applicable Content, Third Party Service and/or interoperability with a Third Party Service until the potential violation is resolved.

3.7 Client Promotion.  Factly may publicize its relationship with Client.  Client grants to Factly a time-limited, revocable, nonexclusive license to display Client’s trademark on Factly’s website.

4. CLIENT’S ACCESS TO SERVICES

4.1 Client Responsibilities. Client will (a) be responsible for Users’ compliance with these Terms of Service, (b) be responsible for the accuracy, quality and legality of Client Data and the means by which Client acquired Client Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Reports, and notify Factly promptly of any such unauthorized access or use, (d) access and use Services and Reports only in accordance with these Terms of Service, Order Forms, applicable laws and regulations, and applicable industry guidelines and principles and (e) comply with rules, guidelines, policies (including but not limited to privacy policies) and terms of use (as amended from time to time) of any Third Party Services with which Client uses the Services. Links to these Third Party Services are provided at www.Factly.ai/third-party-services.  

4.2 Service Restrictions. Client will not, directly or indirectly, and will not permit any User to:

(a) use the Services other than as permitted by these Terms of Service;

(b) provide any Personal Data to Factly or the Services, except to the extent necessary for Factly to provide the Services;

(c) provide any Sensitive Personal Data to Factly or the Services;

(d) encourage, assist or permit any individual User within Client’s organization to share such User’s login information with any other party or to allow any third party to access the Services through such individual User’s account; or

(e) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, syndicate, offer on a service bureau, rental or managed service basis, create links to, frame or mirror on any other server or other device, or otherwise commercially exploit or make the Services available to any third party, except as expressly permitted by these Terms of Service;

(f) use the Services to upload, collect, transmit, store, use or process any content, data or information (excluding any content, data, or information contained in any Reports that is not, in each case, provided by Client) that: (i) Client does not have the lawful right to upload, collect, transmit, store, use, or process, as applicable; (ii) would violate any confidentiality or fiduciary obligations of Client with respect to such content, data, or information if so uploaded, collected, transmitted, stored, used, or processed, as applicable; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of privacy or publicity); (iv) is tortious, defamatory, obscene, or offensive; or (v) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability;

(g) use the Services to send, store, publish, post, upload or otherwise transmit any Malicious Code;

(h) attempt to gain unauthorized access to the Services or its related systems or networks;

(i) use or permit the use of any security testing tool, robot, spider, crawler, scraper, any other automatic software, camera or other device, or manual process in order to probe, scan or attempt to penetrate or ascertain the security of, or otherwise monitor or copy, the Services;

(j) access the Services for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Services; 

(k) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services;

(l) interfere with, disrupt, impede, disable, defeat, avoid, bypass, remove, deactivate or otherwise circumvent any features or functionality of the Services, including, without limitation, any mechanism used to restrict or control the functionality of any software protection or monitoring mechanisms of the Services.

4.3. Compliance with Rules. Client will comply with all Rules directly applicable to Client in collecting and providing the Client Data to Factly. Client represents and warrants that: (a) it has full and sufficient right, title, and authority to provide any Personal Information within Client Data in accordance with applicable Rules, Client’s privacy policies and any agreements with any person to whom such Personal Information applies; (b) it has provided all necessary notices and obtained all necessary consents, including any consents applicable to collection and processing of the Personal Information contained within Client Data, from any person to whom such Personal Information applies, which are required to grant the rights under this Agreement; and (c) its Client Data and any other materials provided hereunder do not infringe any data, privacy or other rights of any third party. 

4.4. Inappropriate Use. Client represents and warrants that it (a) will not make available the Services and Reports to, and will not act on behalf of, any public entity that will use the Services and Reports; and (b) will not, on its own behalf, use the Services and Reports; for the following purposes: (i) enabling surveillance of any individual or group; (ii) targeting, segmenting, or profiling individuals based on any Sensitive Personal Data or sensitive categories of personal information prohibited by applicable Rules; (iii) enabling the use of data, surveillance, or subsequent analyses to violate the Universal Declaration of Human Rights, including without limitation Articles 12, 18, or 19.

4.5 Data Uploads. When uploading Client Data to the Services, Client shall adhere to Factly’s data upload and file format guidelines as communicated to the Client.

4.6 Client as Agent. If Client is acting as an agent for its own end customer, Client represents and warrants that: (1) it has the necessary consents and permissions to access and use the Services on behalf of its end customer; (2) it has the necessary consents and permissions to provide any Confidential Information, including Client Data, belonging to its end customer to Factly for (a) access and use of the Services, including processing of the Client Data by the Services; and (b) enabling the Third Party Services and the use of Third Party Datasets; (3) it is permitted to authorize the use of the end customer’s accounts with the Third Party Services and (4) it is permitted to perform any activities which are necessary to authorize, access or use the Third Party Services and Third Party Datasets on behalf of its end customer.

5. OWNERSHIP

5.1 Reservation of Rights in the Services. The parties acknowledge and agree that at all times Factly is the owner of the Services and retains all rights, title and interest in and to the Services, including any and all updates, modifications, customizations, translations, derivative works, adaptations and copies thereof, irrespective of the manner of creation or the medium or form in which they may exist.  

5.2 Ownership of Reports.  The parties acknowledge and agree that Client is the owner of the Reports, and Factly has no right to reuse or resell Reports generated by Client through the use of the Services in accordance with these Terms of Services. Notwithstanding the foregoing: (a) Factly retains the right to generate and provide reports to third parties, that, in whole or in part, have the same content as any of the Reports, based on identical or similar input data provided by the third party, and generating and providing such reports shall not be a breach of confidentiality under Section 12; (b) Reports will only be accessible via the Services for as long as Client maintains its subscription with Factly; and (c) Client grants Factly a transferrable, sublicenseable, royalty-free, fully paid-up, worldwide license to copy, use, reproduce, modify, develop, access, collect and store the Reports for the purpose of providing the Services.  

5.3. License to Host Client Data.   Client grants Factly a worldwide, limited-term license to host, copy and transmit the Client Data.

5.4.  Feedback.  Client grants to Factly a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of Factly’s services.

6. THIRD PARTY SERVICES AND DATASETS

6.1 Third Party Services.  Factly may utilize Third Party Services in offering services to Client.  Client acknowledges that the ability to use Third Party Services requires Client, and Client agrees, to provide Factly with accurate and up-to-date information reasonably requested by Factly in connection therewith.  Client further agrees that, if applicable, it will maintain an active account in good standing with the relevant Third Party Services, and that in certain instances, use of Factly’s services will require access to and use of such accounts.  Factly will not be liable for any delay or mistake caused by Client’s failure or delay in providing requested information or failure of Client to maintain such an account. Each party hereto shall be solely responsible for any fees that it owes to a Third Party Service.

6.2 Third Party Services Data Sharing.  Client acknowledges and agrees that Factly may share Confidential Information of Client with the Third Party Services as necessary to provide access to and use of the Third Party Services, either directly or through the Services.  The Third Party Services may also provide Client data to Factly, and Client hereby consents to Factly’s access thereto. Factly is not responsible for any disclosure, modification or deletion of Confidential Information resulting from access by such Third Party Services.

6.3 Third Party Services Terms and Requirements. Client acknowledges and agrees that Third Party Services may impose requirements and cause delays that are beyond Factly’s control. Further, participation in Third Party Services is subject to the terms and conditions and privacy, advertising and marketing policies promulgated by the applicable Third Party Services.  Factly does not warrant the Third Party Services and will not be liable for any delay, failure or error caused by the acts or omissions of Third Party Services, or for the acts or omissions required pursuant to Third Party Service’s terms and conditions and privacy, advertising and marketing policies. Factly does not provide training services or support in connection with the Third Party Services. 

6.4 Use of Client Data with Third Party Services and Third Party Datasets.  Client authorizes the use of its Client Data with Third Party Datasets and Third Party Services for any purpose which is required in order for Factly to provide the Services authorized by Client under this Agreement.  Client warrants and represents that it has obtained the necessary data subject consents for the use of Client Data with the Third Party Datasets and Third Party Services including, where applicable, the transfer of Client Data to Third Party Services.  

7. FEES  

7.1 Fees. Client will pay to Factly the fees and other charges set out in the applicable Order Forms (the “Fees”).  Client is responsible for confirming the accuracy of all Order Forms.

Unless otherwise set out in the applicable Order Form, Client will pay all Fees in accordance with the following provisions:

(a) all Fees will be invoiced to Client, and Client agrees to pay all amounts invoiced; 

(b) invoices issued to Client are due and payable within 30 days of the date of the applicable invoice;

(c) interest will be charged on outstanding overdue balances at a rate of 12% per annum or the maximum allowable by law, whichever is less;

(d) quantities purchased cannot be decreased during the subscription term; and

(e) Fees are non-refundable except as otherwise provided herein. 

7.2. Invoices will be sent via email to the billing contact listed on the Order Form.  Client is responsible for the accuracy of all billing information and updating such information where necessary.  Factly will not be responsible for misdirected invoices. Factly will issue one invoice per billing period to the named Client only. Client will issue any purchase order numbers within five (5) days of the Effective Date of the Order Form.  Failure to issue purchase order numbers within that time period will not act to extend or delay issuance of the invoice and the subsequent start of the payment-due period.

7.3 Suspension of Service.  If any Fee owing by the Client is 30 days or more overdue, Factly may, without limiting any other rights and remedies, suspend the Services until the amounts are paid in full. 

7.4 Taxes. Fees are exclusive of all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) imposed by taxing authorities. The Client shall be responsible for payment of, and indemnify Factly from, of all such taxes, levies, or duties, excluding only taxes based solely on Factly’s income or net profits. If Factly has the legal obligation to pay or collect taxes for which the Client is responsible, the appropriate amount shall be invoiced to and paid by the Client unless the Client provides Factly with a valid tax exemption certificate authorized by the appropriate taxation authority. 

8. TERM AND TERMINATION

8.1 Terms of Service.  These Terms of Service commence on the Effective Date and continue until all Order Forms hereunder expire or have been terminated.

8.2 Subscriptions.  The term of each subscription shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year periods unless either party gives the other written notice of non-renewal at least 30 days before the end of the relevant subscription term.

8.3 Termination. 

(a) In addition to any other termination right set out in these Terms of Service, either party has the right to, and may, terminate all Order Forms, along with these Terms of Service, upon notice to the other party: 

(i) if the other party commits a material breach of any provision of these Terms of Service or an Order Form and, if capable of being cured, does not cure such breach within ten days after receiving notice from the non-breaching party of such breach; or

(ii) in the event of the liquidation or insolvency of, the appointment of a receiver or similar officer for, or the assignment for the benefit of creditors by the other party, or the filing of a petition in bankruptcy by or against the other party. 

(b) Factly may terminate the applicable Order Form, along with these Terms of Service, upon notice to Client in the event that Factly’s ability to support or offer the Services or any part thereof is impeded by the actions of one or more third parties.

(c)  If Client terminates these Terms of Service pursuant to Section 8.3(a) (i) or if Factly terminates these Terms of Service pursuant to Section 8.3(b), Factly will refund to Client a pro-rated portion of Fees paid by Client but not used.

8.4 Consequences of Termination. Upon termination or expiration of these Terms of Service, Client will immediately cease all access to and use of the Services and Factly will deactivate Client’s access to the Services. 

9. DISCLAIMERS

EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND REPORTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND CLIENT’S USE OF THE SERVICES AND REPORTS ARE AT ITS SOLE RISK. EXCEPT AS EXPRESSLY SET OUT IN THESE TERMS OF SERVICE, THERE ARE NO WARRANTIES OR CONDITIONS IN RESPECT OF THE SERVICES OR THE REPORTS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CLIENT IS SOLELY RESPONSIBLE FOR THE SELECTION, INTERPRETATION AND USE OF ANY RESULTS OBTAINED FROM THE SERVICES, THE REPORTS, THIRD PARTY SERVICES AND THIRD PARTY DATASETS, AND FOR ENSURING THAT THEIR USE DOES NOT VIOLATE ANY LEGAL OBLIGATIONS (WHETHER IMPOSED BY STATUTE, CONTRACT OR OTHERWISE) OR OBLIGATIONS IMPOSED UNDER APPLICABLE INDUSTRY GUIDELINES AND PRINCIPLES.

10. INDEMNIFICATION

10.1 Indemnification by Factly. Subject to Section 10.2 below, Factly will indemnify and defend Client, its present and future officers, directors, employees, agents, licensors, and suppliers, from any and all damages, expenses, costs or losses suffered by Client, as finally awarded against Client by a court of competent jurisdiction (“Client Losses”), including any reasonable outside attorneys’ fees and court costs incurred by Client in respect of the foregoing, that are solely and directly attributable to any claim, proceeding, or suit brought by a third party against Client alleging that Client’s receipt of the Services infringes any validly issued patent or copyright (“Claim Against Client”). If Factly receives information about an infringement claim related to the Services, Factly may in its sole discretion and at no cost to the Client: (i) modify the Services so that they are no longer claimed to infringe, or (ii) terminate Client’s subscriptions upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions.

10.2 Factly will have no obligation under Section 10.1 in respect of any Client Losses or Claim Against Client to the extent that such Client Losses or Claim Against Client arises out of or is based upon: (i) receipt of the Services in combination with products or services not provided by Factly if such infringement would not have arisen but for such combination; (ii) any part of the Services that is provided in accordance with any technical designs, requirements, or specifications required by or provided by the Client, if the alleged infringement would not have arisen but for the compliance with such technical designs, requirements, or specifications; (iii) receipt of the Services by Client for purposes not intended by or in violation of these Terms of Service; or (iv) any modification of the Services not made or authorized in writing by Factly where such infringement would not have occurred absent such modification.  Factly will have no obligation under Section 10.1 for Claims Against Client or Client Losses arising out of or based on Content, Client’s use of the Reports in breach of applicable laws, or a Client’s breach of these Terms of Service or any Order Form.

10.3 Indemnification by Client. Client will indemnify and defend Factly, its present and future officers, directors, employees, agents, licensors, suppliers and any third party service providers to the Services from any and all damages, expenses, costs or losses suffered by Factly, as finally awarded against Factly by a court of competent jurisdiction (“Factly Losses”), including any reasonable outside attorneys’ fees and court costs incurred by Factly in respect of the foregoing, that are solely and directly attributable to any claim, proceeding, or suit brought by a third party against Factly (a) resulting from any violation by Client of (i) Section 4 or Section 6 of these Terms of Service or (ii) the terms of any Order Form; (b) alleging that Client’s use of the Services or Reports violates (i) any intellectual property rights or (ii) any privacy rights of a third party; or (c)  relating to, or arising from, Client’s use of any Third-Party Services, including Customer’s breach of any terms or conditions applicable to any Third-Party Services, (any of which is a “Claim Against Factly”).  Notwithstanding the foregoing, Client shall not be obligated to indemnify Factly for any act or omission of Factly that constitutes negligence or breach of a duty imposed on Factly by applicable law.

10.4 Procedure. (i) The indemnitee shall give the indemnitor prompt written notice of any Claim; (ii) the indemnitee shall give the indemnitor full and complete control over the defense and settlement of the Claim; (iii) the indemnitee shall provide assistance, at the indemnitor’s sole cost, in connection with the defense and settlement of the Claim as the indemnitor may reasonably request; and (iv) the indemnitee will not settle any Claim without the indemnitor’s prior written consent, such consent not to be unreasonably withheld.

10.5 Exclusive Remedy.  This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.

11. LIMITATION OF LIABILITY

11.1 Direct Damages.  Neither party’s total liability to the other party will exceed the sum of all fees paid by Client for the Services in the immediately preceding twelve months. This section will apply irrespective of the nature of the cause of action, demand or claim, including breach of contract (including fundamental breach), negligence, tort, or any other legal or equitable theory; provided, however, that this section will not apply to Client’s obligation to pay fees or taxes under the applicable agreement(s).

11.2 Consequential and Related Damages. To the extent permitted by applicable law, neither Factly nor Client and their respective affiliates, directors, officers, employees and agents will be liable for any indirect, special, exemplary, incidental, cover or consequential damages or damages for loss of business profits, revenues or good will; business interruption; loss of business information or other pecuniary loss; lost data; loss of computer time; failure to realize expected savings; and any other commercial or economic loss of any kind, irrespective of whether the party has advance notice of the possibility of such damages. 

12. CONFIDENTIAL INFORMATION

12.1 Definitions.  For purposes of this Section 12, “Confidential Information” of a party means all information of such party that is disclosed by such party to the other party or obtained by the other party in connection with the applicable Order Form or these Terms of Service and is either marked as “confidential” or “proprietary” or is information that a reasonable person would understand to be confidential or proprietary; provided, however, that a party’s Confidential Information does not include: (a) information already known or independently developed by the other party outside the scope of the applicable Order Form or these Terms of Service by personnel not having access to any  Confidential Information of such party; (b) information that is publicly available through no wrongful act of the other party, or (c) information received by the other party from a third party who was free to disclose it without confidentiality obligations. Client Data and Reports are Confidential Information of the Client.

12.2 Covenant.  Factly and Client hereby agree that during the Term and at all times thereafter it (the “Recipient”) will not: (a) disclose any Confidential Information of the other party (the “Discloser”) to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under the Order Form(s) or these Terms of Service; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. The Recipient will use at least the same degree of care in safeguarding the Confidential Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Notwithstanding anything in this Section 12, the Recipient may disclose the Discloser’s Confidential Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under the applicable Order Form or these Terms of Service or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure (to the extent legally permissible) and reasonably cooperates with the Discloser to seek an appropriate protective order if required by the Discloser.

12.3 Injunctive Relief.  Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

13. GENERAL

13.1 Modification and Waiver. These Terms of Service may not be modified unless agreed to in writing by both Client and Factly. Any consent to or waiver of a breach by a party, whether express or implied, will not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof will be deemed waived and no breach excused.

13.2 Interpretation. The division of these Terms of Service into Articles and Sections, and the insertion of headings, are for convenience of reference only and will not affect the construction or interpretation of these Terms of Service. Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders. Where the words “including”, “include” or “includes” are used in these Terms of Service, they mean “including (or include or includes, as applicable) without limitation”. The language used in these Terms of Service is the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

13.3 Assignment. Client may not assign these Terms of Service or any of Client’s rights or obligations hereunder, in whole or in part, without the prior written consent of Factly.  Factly may assign these Terms of Service or any of Factly’s rights or obligations hereunder, in whole or in part, without Client’s consent. Any purported assignment in violation of this Section 13.3 shall be null and void.

13.4 Governing Law. These Terms of Service will be governed by and construed in accordance with the internal law of the State of New York and the federal laws of the United States of America applicable hereto without reference to conflict of laws provisions. The parties hereby irrevocably attorn to the exclusive jurisdiction and venue of the state and federal courts sitting in the County of New York, State of New York over any dispute arising hereunder.  The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, as amended, replaced or reenacted from time to time. 

Factly and Client agree that, unless prohibited by law, any proceedings to resolve or litigate any dispute arising hereunder will be conducted solely on an individual basis, and that Client will not seek to have any dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Client acts or proposes to act in a representative capacity. Client further agrees that, unless prohibited by law, no proceeding will be joined, consolidated, or combined with another proceeding without the prior written consent of Factly and all parties to any such proceeding. Client hereby waives any right it may have to a trial by jury.

13.5 Severability. If any part of these Terms of Service is held to be unenforceable or invalid, it will be severed from the rest of these Terms of Service, which, along with each applicable Order Form, will continue in full force and effect.

13.6 Force Majeure. Factly will have no obligation to provide Services, and will not be liable to Client, to the extent and for the period that Factly is prevented from doing so by reason of any cause beyond its reasonable control, including, without limitation, acts of God, acts of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Factly employees), the inability to use or the failure of any third-party telecommunications carrier or Internet service provider, the unavailability of any third-party supplied products or services, the complete or partial unavailability of data from third parties for any reason, or for issues associated with Client’s, and other’s, network, systems, or infrastructure outages or latencies or denial of service attacks.

13.7 Entire Agreement. These Terms of Service and any schedules or other documents referred to herein together with all applicable Order Forms, constitute the entire agreement between the parties relating to the Services and supersede all prior and contemporaneous written and oral agreements, representations and other communications between the parties, and will inure to the benefit of and be binding upon each of Client and Factly and their respective successors and permitted assigns. The parties agree that any term or condition stated in a Client purchase order or other Client order documentation is void.  In the event of any conflict or inconsistency between the Order Form and these Terms of Service, the applicable Order Form shall govern.

13.8 Survival. The sections entitled “Client Promotion”, “Taxes”, “Reservation of Rights In Services”, “Ownership of Reports”, “Consequences of Termination”, “Disclaimers”, “Indemnification”, “Limitation of Liability, “Confidential Information” and “General”, and Client’s obligation to pay any amounts or fees due and payable hereunder will survive the termination or expiry of these Terms of Service. 

13.9 Notice. Any notice, consent or approval required or permitted to be given in connection with these Terms of Service (in this Section referred to as a “Notice”) will be in writing and will be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery) or transmitted to the applicable contact person and address identified in the applicable Order Form or, if Notice is being given to Factly:  

emailed to:

info@factly.ai

Any Notice delivered or transmitted to a party as provided above will be deemed to have been given and received on the day it is delivered or transmitted, provided that it is delivered or transmitted on a business day prior to 5:00 p.m. local time in the place of delivery or receipt.  However, if the Notice is delivered or transmitted after 5:00 p.m. local time or if such day is not a business day then the Notice will be deemed to have been given and received on the next business day.

13.10 Anti-Bribery. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms of Service.

13.11 Export Compliance. Client will not permit any User to access or use the Service in a country named on Canada’s Area Control List under Canada’s Export and Import Permits Act, in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), or in violation of any Canadian or U.S. export law or regulation.

13.12 Relationship of the Parties.  The parties are independent contractors.  The Terms of Service does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

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