Terms of Service - Enterprise
Last Updated: December 23, 2024
Previous versions
- October 29, 2024
- September 5, 2024
These Deep Statistics Enterprise Terms of Service (this “Agreement”) is entered into by and between the customer (“Customer”) identified on the order form, online purchase confirmation, or other ordering document entered into by the parties and referencing this Agreement (the “Order Form”) and deep.statistics.org.in LLC (“Deep Statistics”) (Customer and Deep Statistics each, a “party” and collectively, the “parties”), and sets forth the terms and conditions under which Customer subscribes to and uses certain products and services of Deep Statistics as set forth in the Order Form and provided to Customer under a business or developer enterprise account. The Order Form incorporates this Agreement and is effective as of the date Customer agrees to it (the “Effective Date”). The individual who signs, clicks through, or otherwise agrees to the Order Form binds Customer to the terms and conditions of the Order Form and this Agreement and has been duly authorized by Customer to do so.
Note: these terms are for enterprise (business) users of deep statistics. For consumer use, please see our Consumer Terms of Use.
Deep Statistics PRODUCTS AND SERVICES
Provision of Products and Services
Subject to the terms and conditions of this Agreement, Deep Statistics will provide Customer with the online software-as-a-service products and services on a subscription basis for the Subscription Term (defined below), and such other products and services, as set forth on an applicable Order Form (collectively, the “Deep Statistics Service(s)”). Deep Statistics Services include Deep Statistics Software (defined below). Each Order Form will be incorporated into, and is fully governed by, this Agreement upon execution of the Order Form by both parties. In the event of any conflict or inconsistency between this Agreement and an Order Form, this Agreement shall control, unless expressly stated otherwise in the Order Form.
Access to Services
Customer may access and use the Deep Statistics Services on a non-exclusive and non-transferrable basis (except as set forth in Section 14.1), solely for its business purposes as specified herein and the applicable Order Form, and only in accordance with the terms and conditions of this Agreement, the applicable Order Form, and any end user technical documentation provided by Deep Statistics for such Deep Statistics Services currently available at https://docs.deep.statistics.org.in/docs (as may be updated from time to time) (“Documentation”). Deep Statistics grants Customer a limited, non-exclusive right to use Deep Statistics’s application programming interfaces to develop an integration between the Deep Statistics Services and Customer’s products as specified in the Order Form (the “Bundled Services”) and to: (a) make available the Bundled Service to Customer’s end users (“End-Users”); and (b) demonstrate the Bundled Services to potential End Users. Customer will provide access to the Deep Statistics Services to End-Users only in accordance with this Agreement. This grant does not create any direct contractual relationship between Deep Statistics and the End-Users. Customer shall remain responsible to Deep Statistics for each End User.
Permitted Users
Customer may permit its employees, agents, independent contractors and consultants to use the Deep Statistics Services on its behalf (“Permitted Users”), provided Customer remains responsible for the acts and omissions of each such Permitted User. Use of the Deep Statistics Services by Customer in the aggregate must be within the restrictions set forth in the applicable Order Form (if any). If Customer is given passwords to access Deep Statistics Services on Deep Statistics’s systems, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall promptly notify Deep Statistics: (a) if Customer has reason to suspect that any user ID or password has been lost, stolen, compromised, or misused, and (b) of any unauthorized access to or use of the Deep Statistics Services. Customer shall be responsible for any and all actions taken by Customer or its Permitted Users in the Customer’s accounts and passwords.
Use by Affiliates
Each of Customer’s Affiliates (defined below) identified on an Order Form will be entitled to access and use the applicable Deep Statistics Services in accordance with this Agreement and the applicable Order Form; provided that Customer shall remain responsible to Deep Statistics for the actions and omissions of each such Affiliate (and each of such Affiliate’s Permitted Users). The terms of this Agreement will govern, and will be incorporated by reference into, each such Order Form as if this Agreement were separately executed by the applicable Customer Affiliate, and the term “Customer” as used in this Agreement will be deemed as applying to such Customer Affiliate for the purposes of such Order Form. “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with a party. As used herein, “control” means the power to direct the management or affairs of an entity or the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of an entity.
General Restrictions
Customer shall comply with Deep Statistics’s Acceptable Use Policy (as it may be updated from time to time) (the “AUP”). Further, Customer shall not, and shall not allow any third party (including any Permitted User) to: (a) sell, rent, lease or use any Deep Statistics Service for time sharing purposes; (b) use any Deep Statistics Service to help develop, or help provide to any third party, any product or service similar to or competitive with any Deep Statistics Service, unless expressly approved in the Order Form (and for the avoidance of doubt, this subclause (b) shall not prohibit End-Users accessing the Deep Statistics Services pursuant to a license stated in Section 1 hereto); (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of any Deep Statistics Service; (d) copy, modify or create derivative works from any Deep Statistics Service or any Documentation; (e) remove or obscure any copyright or proprietary or other notice contained in any Deep Statistics Service or Documentation; (f) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; (g) access or use any Deep Statistics Services in a manner intended to circumvent or exceed service account limitations or requirements; (h) use any Deep Statistics Services in a manner that violates any applicable law, regulation, or legal requirement or obligation; (i) use any Deep Statistics Services in violation of any third-party rights of privacy or intellectual property rights; (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark any Deep Statistics Services; (k) post, upload, transmit or provide any Input (defined below) that Deep Statistics reasonably deems to be unlawful, harmful, abusive or otherwise violates this Agreement (l) use the Deep Statistics Services except as expressly permitted by this Agreement. If Deep Statistics or Customer reasonably suspects a breach of this Section resulting from the activity of its End-Users, it shall promptly notify the other party in writing. Upon such notice, the parties agree to cooperate in good faith to investigate and address the suspected breach. This may include taking corrective measures, such as suspending or terminating the account of any End-User found to be in violation of the terms of this Agreement.
CUSTOMER OBLIGATIONS; DATA
Generally
“Input” means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from Customer (including from a Permitted User on Customer’s behalf) or any End User by or through the Deep Statistics Services, or provided by Customer to Deep Statistics to input into the Deep Statistics Services. As between the parties, Customer is solely responsible for the accuracy, content and legality of all Input uploaded by the Customer or any End User. Customer represents and warrants to Deep Statistics that Customer has sufficient rights in the Input and has obtain all required consents to grant the rights granted to Deep Statistics in Section 3.2 below and that the Input to the Customer’s knowledge does not infringe or otherwise violate the rights of any third party.
Rights in Input
As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Input. Customer hereby grants to Deep Statistics a non-exclusive, worldwide, revocable (upon reasonable advance written notice), transferable (as set forth in Section 14.1) fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display the Input in order to: (a) provide the Deep Statistics Services to Customer; and (b) perform such other actions as authorized or instructed by Customer in writing (email to suffice).
De-identified Data and Data Retention
Deep Statistics may create and use de-identified data related to Customer’s use of the Deep Statistics Services to improve Deep Statistics’s products and services, to develop new products and services, and for its other business purposes (and such de-identified data will be owned by Deep Statistics). For clarity, subject to Section 3.2(a), Deep Statistics shall not use any Inputs or Outputs for any of its internal AI or other training purposes (such as training its machine learning models), including developing new products or services based on Inputs and Outputs, unless agreed otherwise in writing by Customer and Deep Statistics. All Inputs and Outputs are automatically deleted within 30 days, unless (a) otherwise agreed in an Order Form, (b) Deep Statistics is legally required to retain them, or (c) they are flagged as potentially violating this Agreement or the AUP.
Output
As between Customer and Deep Statistics, Customer owns the output of the Deep Statistics Services provided to Customer based on Input (“Output”). Customer shall not represent that Output was human-generated or use the Output to train Customer’s or its providers’ machine learning models. Due to the nature of machine learning, the Output may not be unique across users and the Deep Statistics Service may generate the same or similar Output for other users. Use of the Deep Statistics Service may result in incorrect Output that does not accurately reflect reality. Customer must evaluate the accuracy of any Output as appropriate for Customer’s use case, including by using human review of the Output. Customer understands and agrees that the Output may contain “hallucinations” and may be inaccurate, objectionable, inappropriate, or otherwise unsuited to Customer’s purpose, and Customer agrees that Deep Statistics shall not be liable for any damages Customer or any third party alleges to incur as a result of or relating to any Output or other content generated by or accessed on or through the Deep Statistics Service. If Customer shares Input or Output from the Deep Statistics Service with others, Customer authorizes Deep Statistics to share those materials with the applicable third party. Customer is responsible for complying with relevant third-party policies when it instructs Deep Statistics to transmit output to those third parties.
Third-Party Application Service Providers
Customer may be able to access and use certain optional third-party services or products (e.g., a third-party service that integrates with Deep Statistics via opt-in, or uses Deep Statistics’s APIs) through or with its use of the Deep Statistics Services (“Third-Party Services”). Customer is under no obligation to use any Third-Party Services. Additionally, all or some portions of the Deep Statistics Services may be subject to additional and/or separate terms and conditions, including but not limited to open-source software licenses and other third-party software license terms and conditions (“Third-Party Terms”). To the extent there is a conflict between the Third-Party Terms and this Agreement, the Third-Party Terms and conditions shall control. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ALL THIRD-PARTY SERVICES ARE MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. IF CUSTOMER USES ANY THIRD-PARTY SERVICES, Deep Statistics WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. Deep Statistics DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT Deep Statistics WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY PERMITTED USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.
OWNERSHIP
Ownership
Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer is obtaining only a limited right to access and use the Deep Statistics Services set forth on the applicable Order Form. Customer agrees that Deep Statistics or its suppliers own and retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to (a) the Deep Statistics Services, Documentation, and any and all related and underlying technology, documentation, and other information, (b) any intellectual property it develops hereunder, and any derivatives thereof, and (c) all improvements or modifications to the foregoing (a) and (b) ((a), (b) and (c) individually and collectively, “Deep Statistics Technology”). As between Deep Statistics and Customer, Customer owns all right, title and interest in and to the Output in perpetuity and, to the fullest extent possible under applicable law, Deep Statistics hereby assigns to Customer all of its right, title, and interest in and to such Output (but excluding, for clarity, any Deep Statistics Technology).
Feedback
In the event Customer or any Permitted User provides Deep Statistics with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Deep Statistics Services (“Feedback”), Customer hereby assigns and shall cause all Permitted Users to assign to Deep Statistics all right, title and interest in and to such Feedback, including all intellectual property rights therein, and acknowledges that Deep Statistics shall own such Feedback.
SUBSCRIPTION TERM, FEES AND PAYMENT
Subscription Term and Renewals
Unless otherwise terminated as set forth below, each Order Form will have a term as set forth therein (the “Initial Term”). Thereafter, each Order Form by mutual agreement of the parties for successive renewal terms of equal length to the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Subscription Term”). If no term is stated on an Order Form, the Subscription Term for such Order Form is one (1) year.
Fees and Payment
All fees are as set forth in the applicable Order Form and shall be paid by Customer within thirty (30) days of Customer’s receipt of Deep Statistics’s invoice, unless otherwise specified in the applicable Order Form. Except as otherwise set forth in the applicable Order Form, all fees are due and payable in advance at the start of the applicable Subscription Term (and each Renewal Term). Fees are payable by credit card, check, or through ACH transfers and Customer authorizes Deep Statistics to charge its credit card or bank account for all such fees. Upon Deep Statistics’s request, Customer agrees to promptly complete and submit an ACH authorization form to Deep Statistics. Except as expressly set forth in herein or in an Order Form, all fees are non-refundable. Fees are exclusive of taxes, and Customer is required to pay any sales, use, value-added withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of Deep Statistics.
Suspension of Service
If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Deep Statistics reserves the right to suspend Customer’s access to the applicable Deep Statistics Service without liability to Customer until such amounts are paid in full. Deep Statistics also reserves the right to suspend Customer’s access to the Deep Statistics Services immediately if Customer’s use of the Deep Statistics Services: (a) materially violates this Agreement; (b) raises suspicion of fraud, misuse, security concern, illegal activity or unauthorized access issues; or (c) to protect the integrity or availability of the Deep Statistics Services or Deep Statistics’s systems.
TERM AND TERMINATION
Term
This Agreement is effective as of the Effective Date and will continue in effect until terminated as set forth below.
Termination
Either party may terminate this Agreement with at least five (5) days’ prior written notice if there are no Order Forms then in effect. In addition, either party may terminate this Agreement if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice (such notice must contain sufficient detail as to the nature of the breach and state the intent to terminate and email notice is sufficient in the case of non-payment); (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter). For clarity, termination of this Agreement will automatically terminate all Order Forms.
Effect of Termination
Upon the expiration or termination of this Agreement, (a) Customer shall immediately cease all use of and access to the Deep Statistics Services (including any and all related Deep Statistics Technology) and (b) each party will return to the other party (or destroy) such other party’s Confidential Information (defined below) within 30 days. Except as otherwise set forth herein, termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
Survival
The following Sections shall survive any expiration or termination of this Agreement: 2, 3, 4, 5, 6.3, 7.2, 8, 9, 10, 11, 13, and 14.
LIMITED WARRANTY; DISCLAIMER
Limited Warranty
Each party represents and warrants to the other that it has the full right and power to enter into and perform under this Agreement, without any third party consents or conflicts with any other agreement. Deep Statistics warrants that it will provide the Deep Statistics Services in substantial conformity with the applicable Documentation and the descriptions in the Order Form. Deep Statistics’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Deep Statistics’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Deep Statistics determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole and exclusive remedy and Deep Statistics’s entire liability, a refund of any fees Customer has pre-paid for use of the Deep Statistics Services or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section shall not apply: (a) if the error was caused by the Bundled Services or any misuse, unauthorized modifications or third-party hardware, software or services, or (b) to any Deep Statistics Services provided on a no-charge or evaluation basis.
Warranty Disclaimer
EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT, THE Deep Statistics SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. Deep Statistics AND ITS SUPPLIERS EACH EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, AND ANTICIPATED SAVINGS OR DATA, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EACH PARTY’S AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE FEES PAID BY CUSTOMER TO Deep Statistics DURING THE TWELVE (12) MONTH PERIOD PRIOR TO WHEN THE CLAIM AROSE.
INDEMNIFICATION
Indemnification by Deep Statistics
Deep Statistics shall indemnify and defend Customer from and against any claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising from infringement of patent, copyright, trademark, or other intellectual property right asserted against Customer by a third party based upon Customer’s use of the Deep Statistics Services in accordance with the terms of this Agreement; provided that Deep Statistics shall have received from Customer: (a) prompt written notice of such claim; (b) the exclusive right to control and direct the investigation, defense, or settlement (if applicable) of such claim (as long as such settlement releases Customer from any and all liability); and (c) all reasonable necessary cooperation of Customer at Deep Statistics’s expense. In addition, Customer may, at its own cost and expense, appoint its own counsel with respect to defense of the claim; and any settlement that does not provide for a full and unconditional release of Customer shall require Customer’s consent. If Customer’s use of any Deep Statistics Service is, or in Deep Statistics’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Deep Statistics may, in its sole and reasonable discretion: (x) substitute substantially functionally similar products or services; (y) procure for Customer the right to continue using the Deep Statistics Services; or if (x) and (y) are commercially impracticable, (z) terminate this Agreement and refund to Customer any unused, prepaid fees paid by Customer for the terminated period. The foregoing indemnification obligation of Deep Statistics shall not apply to the extent that the alleged infringement arises from: (1) any modification of the Deep Statistics Services other than by or on behalf of Deep Statistics; (2) access to or use of any Deep Statistics Service in combination with any hardware, system, software, network, or other products, materials or services not provided by or on behalf of Deep Statistics, including the Bundled Services; (3) use of the Deep Statistics Services in breach of this Agreement; or (4) Input. THIS SECTION 9.1 SETS FORTH Deep Statistics’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
Indemnification by Customer
Customer shall indemnify, defend, and hold harmless Deep Statistics from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) Customer’s violation of any applicable laws relating to Input (including, without limitation, privacy laws, regulations, or rights), or Customer’s breach of Section 3.1), (b) use of the Deep Statistics Services in violation of this Agreement, or (c) the Bundled Services. This indemnification obligation is subject to Customer receiving: (x) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (y) the exclusive right to control and direct the investigation, defense, or settlement of such claim (any settlement, subject to Deep Statistics’s prior written consent); and (z) all reasonably necessary cooperation of Deep Statistics at Customer’s expense.
CONFIDENTIAL INFORMATION
Definition
“Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. All Deep Statistics Technology, performance information relating to the Deep Statistics Services, and the terms and conditions of this Agreement (including the fees and pricing information) shall be deemed Confidential Information of Deep Statistics without any marking or further designation. Customer’s Confidential Information includes Input and Output (subject to Section 3.4). Confidential Information does not include information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without any reference to or use of Confidential Information, or that was rightfully obtained by the recipient from a third party.
Obligations
The recipient agrees not to disclose Confidential Information except to its Affiliates, employees, contractors and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.
PRIVACY; SECURITY
Privacy
By using the Deep Statistics Services, you acknowledge that we may collect, use, and disclose your personal information and information relating to individuals associated with your account, including Feedback, as set forth in our Privacy Policy located at https://deep.statistics.org.in/legal/privacy-policy, as it may be updated from time to time. Your use of the Deep Statistics Services and your Input and Output shall always comply with your privacy policies and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal information (including “personal data” as defined under applicable data protection laws). “Personal Data” means any information defined as “personal information” under the California Consumer Privacy Act of 2018, as amended (“CCPA”), “personal data” under the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) or other similar terms under applicable data privacy and security laws, regulations, or other legal requirements. If you submit any Personal Data to the Deep Statistics Services, your submission and our collection and processing of such Personal Data is subject to our Data Processing Addendum (as it may be updated from time to time) (the “DPA”), which is incorporated herein by reference. In addition, you shall not submit any information that includes or constitutes “protected health information,” as defined under the HIPAA Privacy Rule (45 C.F.R. Section 160.103), unless you signed a Business Associate Agreement with us in advance.
Security
Deep Statistics shall use reasonable physical, technical, and administrative procedures designed to protect, safeguard and help prevent loss, misuse, and unauthorized access, disclosure, alteration or destruction of Input, which will meet at least the minimum requirements set forth in the DPA, and Deep Statistics will reasonably choose these safeguards in line with industry standards and based on the sensitivity of the information that is collected, processed, and stored and the current state of applicable technology.
PUBLICITY
Except as otherwise agreed in writing (email to suffice), neither party may use the other party’s name, logos, or marks without such party’s written pre-approval in each case.
DISPUTE RESOLUTION
Arbitration
General
THIS SECTION REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM Deep Statistics. This Arbitration requirement applies to and governs any dispute, controversy, or claim between Customer and Deep Statistics that arises out of or relates to, directly or indirectly, this Agreement and/or Customer’s access to or use of the Deep Statistics Services, including, without limitation, Customer’s receipt of any advertising or marketing communications (each, a “Claim,” and collectively, “Claims”). This Section 13.1 will apply, without limitation, to all Claims that arose or were asserted before or after execution of this Agreement.
Dispute Resolution Process
For any Claim, Customer will first contact Deep Statistics at legal@statistics.org.in and meet and confer to attempt to resolve the Claim with Deep Statistics informally. In the event that Deep Statistics has not been able to resolve a Claim after sixty (60) days, both parties agree to resolve such Claim exclusively through binding arbitration by AAA before a single arbitrator (the “Arbitrator”), under the Expedited Arbitration Procedures then in effect for AAA (the “Rules”), except as provided herein. AAA may be contacted at www.adr.org, where the Rules are available. In the event of any conflict between the Rules and this Section 13.1, this Section 13.1 will control. The arbitration will be conducted in Tarrant County, Texas, unless Customer and Deep Statistics agree otherwise. Each party will be responsible for paying any AAA filing and administrative fees and Arbitrator fees in accordance with the Rules, and the award rendered by the Arbitrator will include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the Arbitrator may be entered in any court of competent jurisdiction. Customer and Deep Statistics agree that the Arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any disputes relating to the scope, interpretation, applicability, enforceability, or formation of this Section 13.1, including any claim that all or any part of this Section 13.1 is void or voidable. The Arbitrator will also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement are, or whether any provision of this Agreement is, unconscionable or illusory, and any defense to arbitration, including waiver, delay, laches, unconscionability, and/or estoppel.
Equitable Relief
NOTHING IN THIS SECTION 13.1 WILL BE DEEMED AS: PREVENTING EITHER PARTY FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF CUSTOMER’S OR Deep Statistics’S DATA SECURITY, CONFIDENTIAL INFORMATION, OR INTELLECTUAL PROPERTY RIGHTS; OR PREVENTING CUSTOMER FROM ASSERTING CLAIMS IN A SMALL CLAIMS COURT, PROVIDED THAT CUSTOMER’S CLAIMS QUALIFY AND SO LONG AS THE MATTER REMAINS IN SUCH COURT AND ADVANCES ON ONLY AN INDIVIDUAL (NON-CLASS, NON-COLLECTIVE, AND NON-REPRESENTATIVE) BASIS.
Severability
If this Section 13.1 is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, will be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, will have no impact on the remaining provisions of this Section 13.1, which will remain in force, or on the parties’ ability to compel arbitration of any remaining Claims on an individual basis pursuant to this Section 13.1. Notwithstanding the foregoing, if the Class Action/Jury Trial Waiver below is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent Customer from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Section 13.1 will be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief will be stayed pending the outcome of any individual claims in arbitration.
Class Action/Jury Trial Waiver
BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND Deep Statistics ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO BRING, JOIN, OR PARTICIPATE IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND AS A PLAINTIFF OR CLASS MEMBER. THIS CLASS ACTION/JURY TRIAL WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS Deep Statistics AGREES OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S OR ENTITY’S CLAIMS. CUSTOMER AND Deep Statistics AGREE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY TO AN INDIVIDUAL CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF ON CUSTOMER’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED MAY NOT AFFECT OTHER USERS.
GENERAL TERMS
Assignment
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement or any of its right or obligations hereunder except upon the advance written consent of the other party, except that either party may assign this Agreement and all of its rights and obligations hereunder without such consent to an Affiliate or to a successor entity in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section will be null and void.
Force Majeure
Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, epidemic, pandemic, government act or failure, or failure or diminishment of power or telecommunications or data networks or services.
Subcontractors
Deep Statistics may use the services of subcontractors for performance of services under this Agreement, provided that Deep Statistics remains responsible for the acts and omissions of its subcontractors and such subcontractors’ compliance with the terms of this Agreement, including any acts or omissions that, if taken (or not taken) by Deep Statistics, would constitute a breach of the Agreement.
Independent Contractors
The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
Severability
If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
Governing Law; Jurisdiction and Venue
This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof. Subject to the foregoing provisions of Section 13 above, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Orange County, CA, and both parties hereby submit to the personal jurisdiction of such courts.
Notice
Any notice or communication required or permitted under this Agreement shall be in writing. Deep Statistics may provide Customer with notices at the email address associated with Customer’s account or at the physical address (if any) provided in the Order Form. Notices may be provided to Deep Statistics at the following address: 1450 Page Mill Rd., Palo Alto, CA 94304. Physical notices shall be deemed to have been received by the addressee (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch or (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. Email notices shall be deemed to have been received on the date of receipt of the email. In addition, any legal notices to Deep Statistics must be delivered to the following email address: legal@statistics.org.in but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received (as set forth in preceding sentence).
Amendments; Waivers
Deep Statistics may modify or update this Agreement from time to time in its discretion. When Deep Statistics modifies this Agreement in a material manner, Deep Statistics will update the ‘last updated’ date at the top of this page and notify Customer that material changes have been made to this Agreement and make commercially reasonable efforts to provide at least thirty (30) days’ notice before the modifications go into effect. Customer’s continued use of the Deep Statistics Services after any change to this Agreement constitutes Customer’s acceptance of the updated Agreement. If Customer does not agree to any part of the modifications, Customer must not continue to access or use the Deep Statistics Services. As an exception to the foregoing, any modifications to this Agreement unilaterally made by Deep Statistics will not apply to Order Forms entered into in writing between Customer and Deep Statistics (as opposed to through an online ordering flow) prior to the modification. Except as provided above, no supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Purchase orders (and similar documents) issued by Customer are for administrative purposes only (e.g. setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted, or performed on by Deep Statistics).
No Third-Party Rights
There are no third-party beneficiaries to this Agreement.
Export Compliance
Each party shall comply with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations, trade and economic sanctions, and the International Traffic in Arms Regulations. Neither party, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.
Entire Agreement
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 and communications, relating to the subject matter of this Agreement. Any pre-printed terms in a Customer purchase order or similar document are null and void.
Deep Statistics Corp (@Deep Statistics) © 2024
All rights reserved.