Ayasdi Terms of Service

Terms of Service

Effective as of April 24, 2014.

THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF THIS WEBSITE, THE AYASDI SERVICE AND ANY DOWNLOADABLE SOFTWARE APPLICATION COMPONENTS USED IN CONJUNCTION WITH THE AYASDI SERVICE. IF YOU REGISTER FOR AN ACADEMIC LICENSE OR A FREE TRIAL LICENSE, THESE TERMS ALSO GOVERN YOUR USE OF THE SERVICE DURING THE ACADEMIC LICENSE PERIOD OR FREE TRIAL PERIOD, AS APPLICABLE. If You have entered into a separate executed agreement with Ayasdi, and there is any inconsistency between the terms of that agreement and the terms of these Terms, to the extent of a conflict, the conflicting terms in such executed agreement will control.

  1. ACCEPTANCE OF TERMS

    1.1 Ayasdi, Inc. (“Ayasdi,” “We” or “Our”) provides this website , its Service (as defined below) and the Apps (as defined below) to You through its web site located at www.Ayasdi.com (the “Site”), subject to these Terms.

    1.2 By accepting these Terms online or in an order form incorporating these Terms, or by accessing or using the Service, Site or Apps, You represent and acknowledge that You have read, understood, and agree to be bound by these Terms, and that the information You provide in registering for the Service is accurate, complete, and is Yours or within Your right to use. If You are entering into these Terms on behalf of a company or another legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms, in which case the terms “You,” “Your” or related capitalized terms herein shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service or the Apps.

    1.3 You acknowledge that these Terms constitute a contract between You and Ayasdi, even though it is electronic and is not physically signed by You and Ayasdi, and that these Terms govern Your use of the Service, Site and the Apps and supersede any other agreements between You and Ayasdi.

  2. DESCRIPTION OF SERVICE

    The “Service” includes (a) the Site, (b) the Ayasdi on-demand services and applications, and (c) the other services provided to You through the Site, including all data, text, images, sounds, videos, and other content made available through the Site, or developed via your use of the Service (collectively, “Content”). The Apps mean any Ayasdi desktop or downloadable applications. Any new features added to or augmenting the Service or the Apps are also subject to these Terms.

    The Service does NOT include support of the Service or the Apps and Ayasdi makes no guarantee as to the availability of the Service or the Apps.

  3. GENERAL CONDITIONS/ACCESS AND USE OF THE SERVICE

    3.1 Subject to the terms and conditions of these Terms, Ayasdi hereby grants You a non-exclusive, non-transferable limited license to access and use the Service only for: (i) Your internal business use if You have purchased a subscription to the Service for the period of time for which You have paid Ayasdi (“Subscription Period”); (ii) Your internal evaluation of the Service if You have received a free trial license to the Service (“Free Trial License”) for a period as agreed with Ayasdi (“Free Trial Period”); or (iii) Your non-commercial and academic purposes if You have received an academic license to the Service (“Academic License”) for a period as agreed with Ayasdi (“Academic License Period”). Any trial license for which You have paid Ayasdi will be treated as a subscription license for a Subscription Period hereunder.

    Ayasdi hereby grants to You a non-exclusive, non-transferable limited license to download and use the Apps solely in conjunction with Your authorized use of the Service. The Apps may include certain open source code licensed by third parties. All such open source code is licensed pursuant to separate open source license terms and not these Terms. If You have received an Academic License to the Service, Your use of the Service is also subject to the additional terms set forth in Section 17 below.

    Subject only to Your limited right to access and use the Service and Apps as expressly granted to You here, all rights, title and interest in and to the Service and the Apps and their components, including all related intellectual property rights, will remain with and belong exclusively to Ayasdi and its third-party vendors.

    3.2 You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service or Apps available to any third party, other than as expressly permitted by these Terms; (b) use the Service or Apps to process data on behalf of any third party, (c) modify, adapt or “hack” the Service or the Apps to falsely imply any sponsorship or association with Ayasdi, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (d) use the Service or the Apps in any unlawful manner, including but not limited to violation of any persons privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (e) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (f) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service or the Apps; (g) use the Apps or the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (h) try to use, or use the Service in violation of these Terms.

    3.3 You are responsible for all information, data, text, messages or other materials that You post or is otherwise transmit through the Apps or via the Service on your behalf. You hereby grant to Ayasdi a non-exclusive license to use Your data as necessary to provide You with the Service. You retain ownership of Your data. You are responsible for maintaining the confidentiality of Your login and account, if any, and are fully responsible for any and all activities that occur under Your login or account. You agree and acknowledge that Your login may only be used by one (1) person, and that You will not share a single login among multiple people.

    3.4 Ayasdi’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.

    3.5 Payment and Electronic Communications
    If You purchase a paid subscription for a Subscription Period, You are expressly agreeing that Ayasdi is permitted to bill You the applicable fees, any applicable tax and any other charges You may incur with Ayasdi in connection with your purchase of a license to the Service (“Charges”). Charges do not include taxes, if applicable, and You will pay any taxes imposed on You. The Charges will be invoiced to You and payable net 30 days from the invoice date or will be billed to the credit card account You provide in accordance with the billing terms in effect at the time the Charges are due and payable. If payment is not received or cannot be charged to your credit card account for any reason, Ayasdi reserves the right to either suspend or terminate your access to the Site and/or the Service and terminate these Terms. All purchases are non-cancellable and all charges are non-refundable except as expressly set forth herein.

    By using the Service, You consent to receiving electronic communications from Ayasdi. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Service. These electronic communications are part of your relationship with Ayasdi and You receive them as part of your purchase. You agree that any notices, agreements, disclosures or other communications that we send You electronically will satisfy any legal communication requirements, including that such communications be in writing.

    You acknowledge and agree that Ayasdi will automatically charge your credit card account on record with Ayasdi upon the commencement of any renewal Subscription Period.

  4. DATA PRIVACY AND SECURITY

    4.1 In providing You the Service, Ayasdi shall maintain administrative, physical and technical safeguards that are reasonably designed to protect the security, confidentiality and integrity of Your data. The Service, however, is not intended for data storage or retention and You agree and acknowledges that Ayasdi has no obligation to retain Your data, and may delete Your data from the Ayasdi Service at any time. You are responsible for backing up Your own data.

    4.2 You agree that Ayasdi can access Your accounts information in order to respond to Your requests, maintain or update the Service. We will not disclose your account data except if compelled by law, permitted by You, or pursuant to the terms of the Ayasdi Privacy Policy, which is available atwww.Ayasdi.com/privacy and is incorporated into these Terms.

  5. INTELLECTUAL PROPERTY RIGHTS

    Subject to the terms of the Ayasdi Academic License terms as described in Section 17, Ayasdi retains all rights, title and interest in and to all of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service under these Terms do not convey any additional rights in the Service or in any Intellectual Property Rights associated therewith.

    Ayasdi shall have, and You hereby grant to Ayasdi, a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Ayasdi receives from You. Ayasdi and Ayasdi’s product and service names and logos used or displayed on the Service or the Apps are registered or unregistered trademarks of Ayasdi (collectively, “Marks”). You may only use such Marks to identify yourself as a customer and user of the Service subject to any trademark usage guidelines provided by Ayasdi to You from time to time; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Ayasdi, its services or products. Any goodwill arising out of Your usage of the Ayasdi Marks shall inure to the benefit of Ayasdi.

  6. THIRD PARTY SERVICES

    The Service may contain links to, or otherwise may allow You to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Our Service. If You decide to access and use such Other Services, be advised that Your use is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Your data. Ayasdi is not liable for any damage or loss caused or alleged to be caused by or in connection with Your access or use of any such Other Services, or Your reliance on the privacy practices or other policies of such Other Services.

  7. LIMITED WARRANTIES AND DISCLAIMER OF WARRANTIES

    Solely during the Subscription Period, Ayasdi represents and warrants to You only that the Service when used for its intended purpose and in accordance with the published documentation, will materially conform to Ayasdi’s published specifications for a period of ninety (90) calendar days from the date You are first permitted to access and use the Service. Your sole and exclusive remedy, and Ayasdi’s sole and exclusive liability for any breach of this warranty will be, for You to terminate these Terms and Your Subscription Period on thirty (30) days written notice to Ayasdi if such breach is not cured at the end of such thirty (30) day period.

    WITH RESPECT TO THE FREE TRIAL PERIOD AND THE ACADEMIC LICENSE PERIOD, YOU AGREE THAT AYASDI AND ITS LICENSORS PROVIDE THE SERVICES AND THE APPS ON AN “AS IS” AND “WHERE-AS” BASIS.

    EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, THE APPS, THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND AYASDI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT AYASDI DOES NOT WARRANT THAT THE APPS OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM AYASDI OR THROUGH THE APPS OR THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

  8. LIMITATION OF LIABILITY

    8.1 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THE FOREGOING WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS HEREUNDER.

    8.2 LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, AYASDI’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM THE SERVICE OR THE APPS: (I) WITH RESPECT TO A PAID SUBSCRIPTION SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) ANY PAYMENTS (IF ANY) MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM AND (II) WITH RESPECT TO A FREE TRIAL LICENSE OR AN ACADEMIC FREE LICENSE, SHALL BE LIMITED TO THE AMOUNT OF ONE HUNDRED DOLLARS.

    THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THESE TERMS, IF ANY, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF AYASDI WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

    8.3 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE STATES, AYASDI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

  9. INDEMNIFICATION

    You agree to defend, indemnify, and hold harmless Ayasdi from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Your breach of these Terms, or Your and Your end users’ access to, use, misuse or illegal use of the Service or arising from Your data. Ayasdi will provide You notice of any such claim, suit, or proceeding. Ayasdi reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case You agree to cooperate with any reasonable requests to assist Ayasdi’s defense of such matter.

  10. ASSIGNMENT; ENTIRE AGREEMENT; REVISIONS

    You shall not assign these Terms to any third party except upon Ayasdi’s prior written consent. Any purported assignment in violation of this section shall be void. Subject to the foregoing, these Terms and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

    Ayasdi may amend these Terms from time to time, in which case the new Terms will supersede prior versions. It is your responsibility to review these terms from time to time; provided, that Ayasdi will provide registered active users of the Service who are affected by such a change with an email notice of the change. In the event that You do not agree to any revised Terms, You must immediately cease using the Service and the Apps and these Terms will terminate.

  11. SEVERABILITY

    If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

  12. EXPORT COMPLIANCE AND USE RESTRICTIONS

    Certain Content, the Apps and software components of the Service may be subject to U.S. export control and economic sanctions laws. If You are subject to U.S. laws, You agree to comply with all such laws and regulations as they relate to the Apps, software and Content, and access and use of the Service. You shall not access or use the Apps or the Service if You are located in Burma (Republic of the Union of Myanmar), Cuba, Iran, Libya, North Korea, Sudan, or Syria (the “Prohibited Jurisdictions”), and You shall also not provide access to the Apps or the Service to any government, entity or individual located in the Prohibited Jurisdictions.

  13. RELATIONSHIP OF THE PARTIES

    The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

  14. TERM; TERMINATION AND SURVIVAL

    Each Subscription Period will automatically renew for additional periods equal to the expiring Subscription Period at Ayasdi’s then-current rates, unless You or Ayasdi give the other party written notice of non-renewal at least thirty (30) days before the end of the relevant Subscription Period. You may terminate these Terms at any time by ceasing use of the Services and the Apps but You will not receive any refund of prepaid fees for the current Subscription Period, if applicable. Ayasdi may terminate these Terms at any time for any reason or for no reason, with or without notice, during the Free Trial Period. Ayasdi additionally may terminate these Terms on thirty (30) days written notice to You if You breach any of these Terms and the breach remains uncured at the end of such thirty (30) day period. If these Terms are terminated by You in accordance with the terms of Section 7, Ayasdi will refund You any prepaid fees covering the remainder of the then-current Subscription Period. On any termination of these Terms You will cease using the Service and the Apps.

    Section 3.2, Section 5 (Intellectual Property Rights), the disclaimers in Section 7,and Sections 8 (Limitation of Liability) through 16 (Federal Government End Use Provisions)will survive any termination of these Terms.

  15. GOVERNING LAW

    These Terms shall be governed by the laws of the State of California without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California, Santa Clara County, for the purpose of resolving any dispute relating to Your access to or use of the Apps and/or the Service.

  16. FEDERAL GOVERNMENT END USE PROVISIONS

    If You are a U.S. federal government end user, this Service is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, this Service is licensed to You with only those rights as provided under the terms and conditions of these Terms.

  17. TERMS RELATED TO THE AYASDI ACADEMIC FREE TRIAL PROGRAM

    Subject to the terms and conditions of these Terms, You agree to access and use the Apps and the Service only for Your academic purposes as outlined by the submitted academic proposal You submitted to Ayasdi. Use of the Apps and the Services for any commercial purpose, revenue generation, resale, distribution, or the enablement of the same for others are expressly prohibited. By applying for and being accepted into the Academic Free Trial Program, You agree to include the following citation and references for any work You publish, intend to publish or distribute. The reference section shall read:

    “Lum PY, Singh G, Lehman A, Ishkanov T, Vejdemo-Johansson M, Alagappan M, Carlsson J, and Carlsson G. Extracting insights from the shape of complex data using topology. Sci Rep. 3:1236; DOI:10.1038/srep01236 (2013).”

    “Carlsson G. Topology and Data. Bull Amer. Math. Soc. 46:255, 255-308 (2009).”

    The following shall be noted in the materials and methods section of any paper published which includes results, images, analysis or other Content generated using the Service (note, items noted below in Bold require input, items in BOLD ITALIC CAPS are choices, meaning the non-relevant choice that follows the BOLD ITALIC CAP text should be deleted):

    "Figure [Enter your figure number/letter here] was generated by performing Topological Data Analysis (TDA) on [describe your data here] with the Ayasdi software platform (ayasdi.com). Nodes in the network represent clusters of [describe your data points here] and edges connect nodes that contain samples in common. Nodes are colored by the [(IF CONTINUOUS) average value of their samples for the [please enter your... here] variable] [(IF CATEGORICAL) enrichment of value [enter value name] in the [enter categorical column name] column]."

    Additionally, You agree that all data which has been analyzed by the Service and is presented in scientific sessions, conferences, or other public forums, will be acknowledged by both the name of Company – “Ayasdi” – as well as the name of each Ayasdi employee that has been assigned to your academic project.

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