Terms of Service

These Terms of Service ("Agreement" or "ToS") are entered into by and between Acium, Inc. ("Acium," "we," "us," or "our") and the customer identified in an executed order form referencing this Agreement ("Customer" or "you"). Each order form executed by the parties (each, an "Order") is hereby incorporated into and governed by this Agreement. Collectively, Acium and Customer are referred to as the "Parties," and each individually as a "Party."

1. ACCEPTANCE OF TERMS

By executing an Order or using the Software, Customer agrees to be bound by this Agreement. If Customer is entering into this Agreement on behalf of an entity, Customer represents and warrants that it has the authority to bind such entity to this Agreement.

2. ORDERS AND SCOPE OF SERVICES

The specific services, software modules, quantities, subscription terms, and fees will be set forth in each Order. In case of conflict between this Agreement and an Order, the Order shall prevail with respect to commercial terms.

3. LICENSE GRANT AND RESTRICTIONS

3.1 License. Subject to payment of applicable fees and compliance with this Agreement, Acium grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide right to access and use the Acium software platform and related documentation (collectively, the "Software") during the subscription term set forth in the Order.

3.2 Restrictions. Customer shall not, and shall not permit any third party to: (a) copy, modify, or create derivative works of the Software; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code; (c) sublicense, rent, lease, or provide the Software to any third party; (d) use the Software for unlawful purposes; (e) interfere with or disrupt the integrity or performance of the Software; or (f) access the Software for competitive analysis or benchmarking.

4. INTELLECTUAL PROPERTY RIGHTS

All rights, title, and interest in and to the Software, including all intellectual property rights therein, are and will remain with Acium. Except for the limited license expressly granted herein, no rights are granted to Customer.

If Customer provides suggestions, feedback, or ideas regarding the Software, Customer grants Acium a non-exclusive, perpetual, irrevocable, royalty-free license to use such feedback without restriction.

5. CUSTOMER DATA AND PRIVACY

5.1 Ownership. Customer retains all rights in and to its data submitted to or processed by the Software ("Customer Data").

5.2 Use of Data. Acium will process Customer Data solely to provide and improve the Software and Services, and as otherwise permitted under this Agreement.

5.3 Security. Acium will maintain industry-standard administrative, physical, and technical safeguards designed to protect Customer Data.

5.4 Privacy. Each Party shall comply with applicable data protection and privacy laws in connection with its performance under this Agreement.

6. CONFIDENTIALITY

Each Party may have access to the other Party's confidential or proprietary information ("Confidential Information"). Each Party agrees to use the other's Confidential Information solely to perform under this Agreement, to restrict disclosure to authorized employees, contractors, or agents, and to protect such information with the same degree of care it uses to protect its own confidential information (and at least reasonable care). Confidential Information does not include information that is: (a) publicly available through no fault of the receiving Party, (b) rightfully obtained from a third party without restriction, (c) independently developed without use of the disclosing Party's Confidential Information, or (d) required by law to be disclosed (with prompt notice to the disclosing Party where legally permitted).

7. PAYMENTS AND TAXES

Fees are as set forth in each Order and are due in accordance with the payment terms therein. All fees are non-cancellable, non-refundable, and shall be due and payable in full for the entire subscription term stated in the Order, regardless of whether Customer terminates or ceases use of the Software prior to the end of such term, except as expressly provided in this Agreement.

Fees are exclusive of taxes, and Customer shall be responsible for all applicable taxes other than taxes based on Acium's net income.

8. SERVICE LEVELS (SLA)

8.1 Availability. Acium will use commercially reasonable efforts to make the Software available 99.9% of the time each calendar month, excluding scheduled maintenance and events beyond Acium's reasonable control.

8.2 Support. Acium will provide Customer with access to a designated support channel, which may include a support portal, ticketing system, email, or other method as communicated by Acium from time to time. Acium shall maintain a support escalation process and make available to Customer an escalation contact list identifying points of contact for support issues, including escalation to management-level personnel where appropriate. Support requests will be logged, tracked, and responded to in accordance with Acium's standard support practices.

8.3 Remedies. If availability falls below the commitment in Section 8.1, Customer may request a service credit equal to a pro-rata portion of fees for the affected period. Service credits are Customer's sole and exclusive remedy for SLA failures.

9. INDEMNIFICATION

Acium will defend, indemnify, and hold harmless Customer against any third-party claims, damages, and costs arising out of an allegation that the Software, as provided by Acium, infringes or misappropriates a valid intellectual property right, provided that Customer promptly notifies Acium in writing of the claim and cooperates with Acium in the defense. Acium shall have sole control of the defense and settlement of such claim. This obligation shall not apply to claims resulting from (a) modifications by Customer, (b) combination with third-party products or services not provided by Acium, or (c) unauthorized use of the Software.

10. WARRANTIES AND DISCLAIMERS

Acium warrants that the Software will substantially conform to its documentation. EXCEPT AS EXPRESSLY PROVIDED, THE SOFTWARE IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

11. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ACIUM'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO ACIUM UNDER THE ORDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL ACIUM BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.

12. TERM AND TERMINATION

This Agreement commences upon execution of an Order and continues for the term specified therein. Unless otherwise stated in an Order, each subscription term shall automatically renew for successive one-year periods unless either Party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current term.

Termination of this Agreement or any Order shall not relieve Customer of its obligation to pay all fees for the entire subscription term set forth in the applicable Order.

13. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be governed by and construed under the laws of the State of Delaware, without regard to its conflict of law principles. Any disputes arising under or in connection with this Agreement shall be resolved exclusively in the state or federal courts located in Miami-Dade County, Florida, and each Party consents to the jurisdiction of such courts.

14. GENERAL PROVISIONS

14.1 Assignment. Customer may not assign or transfer this Agreement without Acium's prior written consent, except to a successor in connection with a merger, acquisition, or sale of substantially all assets.

14.2 Force Majeure. Neither Party shall be liable for failure or delay due to causes beyond its reasonable control.

14.3 Entire Agreement. This Agreement, together with all Orders, constitutes the entire agreement between the Parties and supersedes all prior discussions, proposals, or agreements.

14.4 Notices. All notices shall be in writing and delivered by email or certified mail to the addresses set forth in the Order.

14.5 Severability. If any provision is held invalid, the remaining provisions shall remain in effect.