THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS USE OF AND ACCESS TO THE SERVICES BY YOU AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Ambition that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Customer”, “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its End Users within the Services.
Additional Feature(s): means additional features or functionality (including, but not limited to Early Access Programs or Beta Services) that are available or enabled through the Service, but do not form part of the Service. Additional Features are purchased or enabled separately and distinctly from Your Service Plan and Deployed Associated Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Applicable Data Protection Law: means the following data protection law(s): (i) where You (acting as data controller or data processor) are established in an European Economic Area (“EEA”) member state or where Your End-Users access the Services from an European Economic Area (“EEA”) member state: (a) prior to May 25, 2018, the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, entitled “On the protection of individuals with regard to the processing of personal data, and on the free movement of such data.” (as implemented into the relevant national laws of the member state in which You are established), and (b) on and after May 25, 2018, the EU Regulation 2016/679 (and any applicable national laws made under it); and (ii) where You are established in Switzerland, the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded). Should be changed to: Applicable Data Protection Law: means the following data protection law(s): (i) where You (acting as data controller or data processor) are established in an European Economic Area (“EEA”) member state or where Your End-Users access the Services from an European Economic Area (“EEA”) member state the EU Regulation 2016/679 entitled “On the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)” and any applicable national laws made under it; and (ii) where You are established in Switzerland, the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
API: means the application programming interfaces developed and enabled by Ambition that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests.
Beta Services: means a product, service or functionality provided by Ambition that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
Confidential Information: means all information disclosed by You to Ambition or by Ambition to You which is in tangible form and labeled “confidential” (or with a similar legend) or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Ambition’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Ambition or its authorized subcontractors as indicated on an Order Form or other written document such as a SOW.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable, provided or made available by Ambition to You in the applicable Ambition help center(s); provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
End-User: means any person or entity other than Subscriber of whom interacts with Service.
Order Form: means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of End-Users authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Personal Data: means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
Personnel: means employees and/or non-employee service providers and contractors of Ambition engaged by the Ambition in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Service(s): means the products and services that are ordered by You via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”) that are provided under this Agreement. “Services” exclude (i) Third Party Services as that term is defined in this Agreement; and (ii) any Additional Features or Associated Services that are not provided under this Agreement or Your Service Plan. From time to time the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within a Service by You and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
Service Plan(s): means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the Services to which You subscribe.
Site: means a website operated by Ambition, including www.Ambition.com, as well as all other websites that Ambition operates.
Software: means software provided by Ambition (either by download or access through the Internet) that allows End-Users to use any functionality in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to a Service with respect to any individual End-User.
Supplemental Terms: means the additional terms and conditions that are (a) contained in Exhibit B to this Agreement entitled, “Supplemental Terms and Conditions”; (b) included or incorporated on an Order Form via hyperlink or other reference (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting Services when purchased by You; applicable to Additional Features when activated by You.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
“We,” “Us” or “Our”: means Ambition as defined below.
Ambition: means Ambition Solutions, Inc., a Delaware corporation, or any of its successors or assignees.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES
2.1 During the Subscription Term and subject to compliance by You and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. An Affiliate may purchase a subscription to the Services under this Agreement provided that You or such Affiliate executes an Order Form for such Services. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber also agrees that it will be responsible for its Affiliates’ compliance with this Agreement.
2.2 We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Order Forms; (b) provide applicable standard customer support for the Services to You at no additional charge as detailed on the applicable Site and Documentation 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 (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
2.3 We will notify You of applicable Supplemental Terms prior to Your activation of any Additional Features. The activation of any Additional Features by You in Your Account will be considered acceptance of the applicable Supplemental Terms.
2.4 You may not use the Services to provide outsourced business process services, on behalf of more than one (1) third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by Ambition from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in accordance with Section 2.3 above.
2.5 A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Ambition, including the Transport Layer Security (TLS) protocol or other protocols accepted by Ambition, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Ambition. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.6 In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Ambition, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Ambition; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.7 As between You and Ambition, You are responsible for compliance with the provisions of this Agreement by End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual End-Users available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual End-Users permitted under Your subscription to the applicable Service. You agree and acknowledge that each End-User will be identified by a unique username and password (“Login”) and that an End-User Login may only be used by one (1) individual. You will not share an End-User Login among multiple individuals. You and Your End-Users are responsible for maintaining the confidentiality of all Login information for Your Account. Ambition reserves the right to periodically verify that Your use of the Ambition Services complies with the Agreement and the Service Plan restrictions on Our Site. Should Ambition discover that Your use of a Ambition Service is not in compliance with this Agreement or the Service Plan restrictions on Our Site, Ambition reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
2.8 In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You or End-Users.
2.9 You acknowledge that Ambition may modify the features and functionality of the Services during the Subscription Term.
2.10 You may not access the Services if You are a direct competitor of Ambition, except with Ambition’s prior written consent. You may not access the Services for competitive purposes.
2.11 If You register for a free trial for any of the Services, We will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in our sole discretion.
ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
2.12 From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to Supplemental Terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Third Party Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. CONFIDENTIALITY; SECURITY AND PRIVACY
3.1 Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3.1 shall supersede any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect.
3.2 Ambition will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data, as described in the Agreement, the Supplemental Terms entitled, “How We Protect Your Service Data” attached hereto, and Supplemental Terms for the Deployed Associated Services, as applicable. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Service Data by Personnel except (a) to provide the Services and prevent or address service, support or technical problems; (b) as compelled by law in accordance with Sections 3.1(b) or 3.1(c); or (c) as You expressly permit in writing. Ambition’s compliance with the provisions of Sections 3.2 through 3.4 and the Security Measures set forth in Exhibit B, Section 2 (“How We Protect Service Data”) shall be deemed compliance with Ambition’s obligations to protect Service Data as set forth in the Agreement.
3.3 To the extent Service Data constitutes Personal Data, You and Ambition hereby agree that You shall be deemed to be the data controller and Ambition shall be deemed to be the data processor as those terms are understood under the Applicable Data Protection Law. Unless otherwise specifically agreed to by Ambition, Service Data may be hosted by Ambition in the United States. In providing the Services, Ambition will engage entities within Ambition to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement within the United States. Under no circumstances will any entity in Ambition be deemed a data controller with respect to Service Data under Applicable Data Protection Law or any relevant law or regulation of any Member State as defined in Applicable Data Protection Law.
3.4 You agree that Ambition and the third-party service providers that are utilized by Ambition to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide or improve the Services, including, without limitation, in response to Your support requests. Any third-party service providers utilized by Ambition will only be given access to Your Account and Service Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2.
3.5 Whenever You or End-Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. “Cookies” are identifiers We transfer to the browser or device of End-Users that allow Us to recognize End-User and their browser or device along with how our Services are being utilized. When We collect this information, We only use this data in aggregate form, and not in a manner that would identify End-Users personally. For example, this aggregate data can tell Us how often users use a particular feature of the Services, and We can use that knowledge to improve the Services.
3.6 We receive and store any information that You knowingly provide to Us. For example, through the registration process for Our Services and/or through your Account settings, We may collect Personal Data such as your name, email address, and phone number of You and Your End-Users. In addition, We may communicate with You and Your End-Users. For example, We may send You and Your End-Users product announcements and promotional offers or contact You and Your End-Users about Your use of the Services. If You or an End-User does not want to receive communications from Us, please indicate this preference by sending an email to gethelp@Ambition.com and provide us with the name and email address of each End-User that no longer wishes to receive these communications.
3.7 We never sell, rent, or lease Your Service Data to any third party. We do not share Your Service Data with third parties, except as permitted by Section 3.5 of this Agreement and in order to provide and support the Services. We may, however, share aggregated and anonymized information regarding Your use of the Services with third parties as described in this Section. To be clear, we would never disclose aggregated and/or anonymized information to a third party in a manner that would identify You as the source of the information or Your End-Users personally, as an individual.
3.7.1 Improving the Services. Ambition uses third party analytics providers in the following ways for the purpose of assessing and improving the usage of our Services.
Usage Data. Third party analytics providers may collect metrics information regarding Your use of the Service(s), including evaluating how End-Users use the Services (“Usage Data”). To be clear, although Usage Data may be derived from aggregated and anonymized Service Data, it does not include actual Service Data or Personal Data. Usage Data is used to compile reports on activity within the Services for Ambition to improve the Services. The third party analytics providers will not share or otherwise disclose Usage Data, although We may make Usage Data publicly available from time to time.
Anonymized Data. We may anonymize the Personal Data of your End-Users so they cannot be individually identified, and provide that information to third party analytics providers for analysis. We will use this information to maintain, enhance, or add to the functionality of the Service(s) and to personalize the user experience. The third party analytics providers will not share or otherwise disclose this information.
4. INTELLECTUAL PROPERTY RIGHTS
Each Party shall retain all rights, title and interest in and to all its respective 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 and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Ambition and belong exclusively to Ambition. Ambition shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, End-Users, or other third parties acting on Your behalf. Ambition’s other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of Ambition (collectively, “Marks”), and You may only use applicable Marks to identify You as a Subscriber; 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 Us, Our services or products.
5. BILLING, PLAN MODIFICATIONS AND PAYMENTS
5.1 Unless otherwise indicated on an Order Form or SOW referencing this Agreement or in the Supplemental Terms, and subject to Section 5.2, all charges associated with Your access to and use of a Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within thirty (30) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You and End-Users.
5.2 If You choose to increase the number of End-Users authorized to access and use a Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be billed on a monthly basis over the remaining period of Your then current Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
5.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Ambition does not accept any liability for such loss.
5.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Ambition measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
5.5 If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each acceptance of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Services until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
5.6 Payments made by credit card, debit card or certain other payment instruments for the Ambition Service are billed and processed by Ambition’s Payment Agent. To the extent the Payment Agent is not Ambition, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Ambition and shall not be construed to be providing the applicable Service.
5.7 If You mandate Ambition use a vendor payment portal or compliance portal which charges Ambition a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, You shall be invoiced by Ambition for, and You are obligated to pay, the cost of this fee.
6. CANCELLATION AND TERMINATION
6.1 Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order Form, the Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed or which You have deployed, as applicable, as of the time such subsequent Subscription Term commences.
6.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term.
6.3 Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 8.4 and 8.5, in addition to other amounts You may owe Ambition, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Ambition, provided that You provide advance notice of such breach to Ambition and afford Ambition no less than thirty (30) days to reasonably cure such breach as provided for in Section 8.5 herein.
6.4 We reserve the right to restrict functionality, suspend or terminate the Services (or any part thereof), Your Account or Your End-Users’ rights to access and use the Services, and remove, disable and quarantine any Service Data if We believe that You or End-Users have violated this Agreement. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You or End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You or End-Users may be referred to law enforcement authorities at Our sole discretion.
6.5 A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such notice; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
6.6 Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make Service Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, will have the right to delete or destroy all copies of Service Data in Our systems or otherwise in Our possession or control, unless prohibited by law.
7. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
7.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
7.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 6.5 herein.
7.3 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.2, THE SITES AND THE SERVICES, INCLUDING 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 WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
8. LIMITATION OF LIABILITY
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF AMBITION), BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
8.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AMBITION’S AGGREGATE LIABILITY TO YOU, ANY AFFILIATE, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR CONSULTING FEES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND CONSULTING FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR CONSULTING SERVICES PROVIDED FOR IN THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES AND SHALL NOT BE CUMULATIVE.
8.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, AMBITION’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
8.4 Any claims or damages that You may have against Ambition shall only be enforceable against Ambition and not any other entity or its officers, directors, representatives or agents.
9.1 We will indemnify and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Ambition for such defense, provided that (a) You promptly notify Ambition of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim; and (c) You fully cooperate with Ambition in connection therewith. If use of a Service by You or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (a) procure for You the right to continue using the Service(s) as set forth hereunder; (b) replace or modify a Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Ambition, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to Ambition for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 9.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service(s) by anyone other than Ambition; or (iii) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing.
The provisions of this Section 9.1 state the sole, exclusive and entire liability of Ambition to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You or End-Users.
9.2 You will indemnify and hold Ambition harmless against any claim (i) arising from or related to use of a Service by You or End-Users in breach of this Agreement; or (ii) alleging that the intellectual property rights of a third party have been violated; provided (a) We promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (c) We fully cooperate with You in connection therewith.
10. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
10.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign this Agreement to any member of Ambition or in connection with any merger or change of control of Ambition or Ambition or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
10.2 This Agreement, together with any Order Form(s) and Supplemental Term(s) constitute the entire agreement, and supersede any and all prior agreements between You and Ambition with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations, or terms of any kind between the Parties, except as may otherwise be expressly provided herein.
10.3 We may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by Ambition as Your consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement 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 this Agreement shall remain in effect.
12. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Services and other Software or components of the Services that We may provide or make available to You or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You and End-Users. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit End-Users to access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You and End-Users are located.
13. RELATIONSHIP OF THE PARTIES
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
All notices provided by Ambition to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Ambition in writing by Courier or U.S. mail to 1100 Market Street, Chattanooga, Tennessee U.S.A. Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
15. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Kent County, Delaware. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You or End Users.
16. FEDERAL GOVERNMENT END USE PROVISIONS
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, each of the Services 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, the Services are licensed to You with only those rights as provided under the terms and conditions of this Agreement.
You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal@Ambition.com.
Sections 1, 3.1, 4 and 9-18 shall survive any termination of our agreement with respect to use of the Services by You or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
SUPPLEMENTAL TERMS AND CONDITIONS
SECTION 1: SERVICE LEVEL AGREEMENT
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Company will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Company in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. Company will only apply a credit to the month in which the incident occurred. Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.
SUPPLEMENTAL TERMS AND CONDITIONS
SECTION 2: HOW WE PROTECT SERVICE DATA
Ambition is committed to providing a robust and comprehensive security program including the security measures set forth in these Supplemental Terms (“Security Measures”). During the Subscription Term, these Security Measures may change without notice, as standards evolve or as additional controls are implemented or existing controls are modified as We deem reasonably necessary.
Security Measures Utilized by Us
As provided for in Section 3.2 of the Agreement, We will abide by these Security Measures to protect Service Data as is reasonably necessary to provide the Services:
1. Security Policies and Personnel. We have and will maintain a managed security program to identify risks and implement preventative technology, as well as technology and processes for common attack mitigation. This program is and will be reviewed on a regular basis to provide for continued effectiveness and accuracy. We have, and will maintain, a full-time information security team responsible for monitoring and reviewing security infrastructure for Our networks, systems and services, responding to security incidents, and developing and delivering training to Our employees in compliance with Our security policies.
2. Data Transmission. We will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies) over the internet, except for any Third Party Services that does not support encryption, which You may link to through the Services at Your election.
3. Incident Response. We have an incident management process for security events that may affect the confidentiality, integrity, or availability of Our systems or data that includes a response time under which Ambition will contact its subscribers upon verification of a security incident that affects Your Service Data. This process specifies courses of action, procedures for notification, escalation, mitigation, and documentation.
4. Access Control and Privilege Management. We restrict administrative access to subscriber production systems to operational personnel. We require such personnel to have unique IDs and associated cryptographic keys. These keys are used to authenticate and identify each person’s activities on Our systems, including access to Service Data. Upon hire, Our operational personnel are assigned unique keys. Upon termination, these keys are revoked. Access rights and levels are based on Our employees’ job function and role, using the concepts of least-privilege and need-to-know to match access privileges to defined responsibilities.
5. Network Management and Security. The data centers utilized by Us maintain industry standard fully redundant and secure network architecture with reasonably sufficient bandwidth as well as redundant network infrastructure to mitigate the impact of individual component failure. Our security team utilizes industry standard utilities to provide defense against known common unauthorized network activity, monitors security advisory lists for vulnerabilities, and undertakes regular external vulnerability audits.
6. Data Center Environment and Physical Security. The data center environments which are utilized by Us in connection with Our provision of the Service employ the following security measures:
A security organization responsible for physical security functions 24x7x365.
Access to areas where systems or system components are installed or stored within data centers is restricted through security measures and policies consistent with industry standards.
N+1 uninterruptible power supply and HVAC systems, backup power generator architecture and advanced fire suppression.
Technical and Organizational Security Measures for Third-Party Service Providers
As provided for in Section 3.5 of the Agreement, any third-party service providers that are utilized by Ambition will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to, among the other requirements in Section 3.5, their implementing and maintaining compliance with the following appropriate technical and organizational security measures:
1. Physical Access Controls. Third-party service providers shall take reasonable measures, such as security personnel and secured buildings and factory premises, to prevent unauthorized persons from gaining physical access to data processing systems in which Service Data is Processed.
2. System Access Controls. Third-party service providers shall take reasonable measures to prevent data processing systems from being used without authorization. These controls shall vary based on the nature of Processing undertaken and may include, among other controls, authentication via passwords and/or two-factor authentication, documented authorization processes, documented change management processes, and/or logging of access on several levels.
3. Data Access Controls. Third-party service providers shall take reasonable measures to provide that Service Data is accessible and manageable only by properly authorized staff, direct database query access is restricted and application access rights are established and enforced to ensure that persons entitled to access Service Data only have access to Service Data to which they have privilege of access; and, that Service Data cannot be read, copied, modified or removed without authorization in the course of Processing.
4. Transmission Controls. Third-party service providers shall take reasonable measures to ensure that it is possible to check and establish to which entities the transfer of Service Data by means of data transmission facilities is envisaged so Service Data cannot be read, copied, modified or removed without authorization during electronic transmission or transport.
5. Input Controls. Third-party service providers shall take reasonable measures designed to ensure that it is possible to check and establish whether and by whom Service Data has been entered into data processing systems, modified or removed; and, any of transfer of Service Data to a third-party service provider is made via a secure transmission.
6. Data Protection. Third-party service providers shall take reasonable measures designed to ensure that Service Data is secured to protect against accidental destruction or loss.
7. Logical Separation. Third-party service providers shall logically segregate Service Data from the data of other parties on its systems to ensure that Service Data may be Processed separately.
SUPPLEMENTAL TERMS AND CONDITIONS
SECTION 3: CONSULTING SERVICES
If Subscriber has engaged Ambition for the provision of professional services (including any training, success, and implementation services, “Consulting Services”) as indicated on an Order Form, or other written document such as a Statement of Work, the provision of such Consulting Services will be governed by the Agreement, including these Supplemental Terms. Unless otherwise agreed to in a Statement of Work, Subscriber agrees that any Consulting Services must be scheduled for completion by Subscriber within six (6) months following the commencement of the Subscription Term as indicated on the Order Form. In consideration of the foregoing, Subscriber and Ambition, intending to be legally bound, agree to the terms set forth below.
1. Scope. All Consulting Services pursuant to the Agreement provided by Ambition to Subscriber will be outlined in one or more mutually agreed-upon and jointly executed Statement of Work(s) (“SOW(s)”) or Order Forms, each incorporated into the Agreement and describing in detail the scope, nature and other relevant characteristics of Consulting Services to be provided.
2. Retention. Subscriber hereby retains Ambition to provide the Consulting Services described in one or more SOWs, subject to the terms and conditions set forth in the Agreement. Ambition shall not be obligated to perform any Consulting Services until both Parties have mutually agreed upon and executed an SOW with respect to such Consulting Services. After execution of an SOW, the Consulting Services to be provided under that SOW may only be changed through a change order mutually executed by the Parties (“Change Order”).
3. Performance of Consulting Services.
3.1 Each SOW will include reasonable details about Consulting Services, including, at a minimum, the Consulting Fees charged and the Consulting Services provided. Ambition and Subscriber agree to cooperate in good faith to achieve satisfactory completion of the Consulting Services in a timely and professional manner.
3.2 The Parties will each designate a representative to interface and facilitate the successful completion of the Consulting Services (“Subscriber’s Representative” and “Ambition’s Representative”, respectively). Any Subcontractor (defined below) designated by Ambition to perform any portion of the Consulting Services will designate a representative to interface with Subscriber and Ambition on all matters relating to Subcontractor’s performance of Consulting Services (“Subcontractor’s Representative”).
3.3 Ambition will perform the Consulting Services through qualified employees and/or non-employee contractors of Ambition (“Subcontractors” and together with Ambition’s employees for the purposes of these Supplemental Terms, “Consulting Services Personnel”). Subscriber agrees to provide, at no cost to Ambition, timely and adequate assistance and other resources reasonably requested by Ambition to enable the performance of the Consulting Services (collectively, “Assistance”). Neither Ambition, nor its Subcontractors will be liable for any deficiency in performance of Consulting Services to the extent resulting from any acts or omissions of Subscriber, including but not limited to, Subscriber’s failure to provide Assistance as required hereunder.
3.4 In performing the Consulting Services, Ambition will provide such resources, and utilize Consulting Services Personnel as it deems necessary to perform the Consulting Services or any portion thereof. Subscriber may object to Ambition’s election of Subcontractors by specifying its objection to Ambition, in which case the Parties will cooperate in good faith to appoint another Subcontractor to perform such Consulting Services. Ambition may replace Consulting Services Personnel in its normal course of business, provided that Ambition will be responsible for the performance of Consulting Services by all Consulting Services Personnel.
3.5 Ambition will control the method and manner of performing all work necessary for completion of Consulting Services, including but not limited to the supervision and control of any Personnel performing Consulting Services. Ambition will maintain such number of qualified Consulting Services Personnel and appropriate facilities and other resources sufficient to perform Ambition’s obligations under the Agreement in accordance with its terms.
3.6 With Subscriber’s approval, Ambition may enter (“assume into”) Subscriber’s Account as needed to provide the Consulting Services.
3.7 In the event that Subscriber seeks to change the scope of Consulting Services to be provided under any SOW (including, but not limited to, any changes to the project schedule described in the SOW), Subscriber shall discuss such proposed changes with Ambition. If Ambition elects to perform such changes to the Consulting Services, the Parties shall work together in good faith to execute a Change Order. Ambition shall be entitled to an adjustment in Consulting Fees pursuant to the changes reflected in the Change Order. Ambition shall not be obligated to perform any differing or additional Consulting Services unless the Parties have mutually agreed upon a written Change Order.
3.8 For SOWs that are deliverable/milestone based, upon delivery of all deliverables or completion of all milestones detailed in the SOW, Ambition shall provide Subscriber with written notice (“Completion Notice”). Thereafter, Subscriber shall have five (5) days after the date of the Completion Notice to provide Ambition with written notice describing any deliverables that have not been provided or milestones not met. The SOW shall be deemed complete and the deliverables accepted absent Subscriber’s timely written notice of any deliverables or milestones not having been met. For the avoidance of doubt, a Completion Notice shall not be necessary for SOWs that are time and materials based.
4. Consulting Fees; Payment Terms.
4.1 Subscriber will pay Ambition the fees to provide the Consulting Services as detailed or described in an Order Form or SOW (the “Consulting Fees”). Unless agreed upon otherwise in the applicable SOW or Order Form, Ambition shall invoice Subscriber for the Consulting Services provided on a monthly basis. All Consulting Fees are due and payable upon date of invoice, except for Consulting Fees that Subscriber disputes in good faith for reasons articulated in writing by Subscriber within thirty (30) days after receiving such invoice.
4.2 All Consulting Services will be provided on either a time and materials or fixed-fee basis, as indicated in the applicable SOW. Each SOW providing for time and materials based Consulting Fees will contain a detailed estimate of such time and materials necessary for performance of Consulting Services (“T&M Estimate”). Ambition will make a commercially reasonable effort to provide such Consulting Services within such T&M Estimate, up to the number of hours agreed to by the Parties. Ambition will make a reasonable effort to notify Subscriber as soon as practicable if it appears that T&M Estimate may be exceeded. Upon receiving such amended T&M Estimate, Subscriber will assess, and accept or reject the amended T&M Estimate. Unless Subscriber rejects such amended T&M Estimate within five (5) days of delivery, such amended T&M Estimate shall be deemed accepted by Subscriber and Subscriber shall be liable for all Consulting Fees associated with Consulting Services delivered in reliance on such amended T&M Estimate. Any amended T&M Estimate which is or is deemed accepted by Subscriber shall be deemed a Change Order.
4.3 The performance of Consulting Services may be subject to a retainer to be paid in advance by Subscriber upon execution and delivery of the SOW. Such retainer will be applied against Consulting Fees which become payable by Subscriber. Ambition may refuse to perform Consulting Services unless and until such retainer is paid to Ambition.
4.4 In addition to any and all Consulting Fees, Subscriber will reimburse Ambition for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change Consulting Fees to travel and accommodations resulting from Subscriber’s request incurred by Ambition in connection with providing the Consulting Services (“Expenses”). Ambition will provide reasonable documentation for all Expenses as requested by Subscriber. Subscriber shall reimburse Ambition for Expenses within thirty (30) days of submission of the Expenses to Subscriber by Ambition.
4.5 Any unpaid Consulting Fees or Expenses will become overdue thirty (30) days after payment is due and shall be subject to a late fee of one and a half percent (1.5%) per month for each month where payment is not received.
4.6 Cancellation/Changes: Any cancellations/changes less than five (5) days prior to agreed Consulting Services commencement date are subject to forfeiture of Consulting Fees paid and reserved date(s).
5. Relationship of the Parties. Ambition is an independent contractor and will maintain complete control of and responsibility for its Consulting Services Personnel, methods and operations in providing Consulting Services. Ambition at no time will hold itself out as an agent, subsidiary or affiliate of Subscriber for any purpose, including reporting to any government authority. The Agreement will not be construed so as to create a partnership, other joint venture or undertaking, or any agency relationship between the Parties, and neither Party shall become liable for any representation, act or omission of the other Party or have the authority to contractually bind the other Party. Any Consulting Fees, Expenses or other amounts paid by Subscriber to Ambition hereunder shall not be considered salary for pension or wage tax purposes and neither Ambition nor its Consulting Services Personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Subscriber, unless otherwise required by law. Subscriber shall not be responsible for deducting or withholding from Consulting Fees or Expenses paid for Consulting Services any taxes, unemployment, social security or other such expense unless otherwise required by law.
6.1 Ambition hereby represents and warrants that:
the Consulting Services provided pursuant to the Agreement will be performed in a timely and professional manner by Ambition and its Consulting Services Personnel, consistent with generally-accepted industry standards; provided that Subscriber’s sole and exclusive remedy for any breach of this warranty will be, at Ambition’s option, re-performance of the Consulting Services or termination of the applicable SOW and return of the portion of the Consulting Fees paid to Ambition by Subscriber for the nonconforming portion of the Consulting Services; and
it is under no contractual or other restrictions or obligations which are inconsistent with the execution of the Agreement, or, to its best knowledge, which will interfere with its performance of the Consulting Services.
6.2 The Parties hereby agree that:
EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6.1 ABOVE, CUSTOM APPLICATIONS THAT RESIDE WITHIN THE AMBITION SERVICE FRAMEWORK, HELP CENTER CUSTOMIZATIONS, INTEGRATIONS, AND PROGRAMMING SCRIPTS THAT ARE IDENTIFIED AND BEING DELIVERED UNDER A SOW (COLLECTIVELY, “CUSTOMIZED DELIVERABLES”) ARE PROVIDED TO SUBSCRIBER “AS IS” AND AMBITION MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OR ANY REPRESENTATIONS TO SUBSCRIBER OR ANY THIRD PARTY REGARDING THE USABILITY, CONDITION, OPERATION OR FITNESS OF THE CUSTOMIZED DELIVERABLES. AMBITION SHALL NOT BE RESPONSIBLE, AT LAW OR OTHERWISE, FOR ANY CUSTOMIZED DELIVERABLES DESPITE ANY OTHER WARRANTIES OR GUARANTEES, IN THE EVENT THAT SUBSCRIBER MODIFIES ANY CUSTOMIZED DELIVERABLES IN A MANNER NOT INSTRUCTED BY AMBITION. AMBITION DOES NOT WARRANT THAT SUBSCRIBER’S OR ANY THIRD PARTY’S ACCESS TO OR USE OF THE CUSTOMIZED DELIVERABLES SHALL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. AMBITION EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING CUSTOMIZED DELIVERABLES, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. FURTHER, AMBITION EXPRESSLY DISCLAIMS ANY RESPONSIBILITY TO SUPPORT OR MAINTAIN CUSTOMIZED DELIVERABLES AND WILL NOT DO SO UNLESS OTHERWISE AGREED BY THE PARTIES. THIS DISCLAIMER OF WARRANTY AND LIABILITY IS EXPRESSLY MADE IN ADDITION TO ANY DISCLAIMERS MADE BY AMBITION OR ITS AFFILIATES UNDER THE AGREEMENT WITH RESPECT TO THE SERVICES AS APPLICABLE TO SUBSCRIBER AND ANY THIRD PARTY’S USE OF THE SERVICES.
7. Rights to Deliverables; Ownership.
7.1 The Parties hereby agree that the specified Consulting Services to be completed pursuant to any SOW primarily involve the configuration of Subscriber’s subscription to a Service and integration of Subscriber data with and into one or more Services using Pre-existing Technology, Developed Technology, and/or Generic Components (each as defined below). Unless otherwise expressly specified in a SOW, no deliverable provided in connection with the Consulting Services provided pursuant to the Agreement shall constitute a “Work Made For Hire” under the Agreement. In the event that any such deliverable is held to be a Work Made For Hire, Subscriber hereby assigns to Ambition all right, title and interest therein or to the extent such assignment is not permitted or effective, hereby grants to Ambition a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such deliverable. Additionally, Ambition shall have a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to incorporate into the Pre-existing Technology, Developed Technology, and/or Generic Components or otherwise use any suggestions, enhancement requests, recommendations or other feedback Ambition receives from Subscriber.
7.2 Without limiting the foregoing, Ambition and its licensors reserve and retain ownership of all Preexisting Technology, Developed Technology and Generic Components (each as defined below), and Ambition hereby grants to Subscriber a non-exclusive, fully-paid, limited license to use Pre-existing Technology, Developed Technology and Generic Components solely in connection with Subscriber’s use of the Service(s). “Pre-existing Technology” means all of Ambition’s inventions (including those of Ambition’s Affiliates) (whether or not patentable), works of authorship, designs, know-how, ideas, concepts, information and tools in existence prior to the commencement of the Consulting Services. “Developed Technology” means ideas (whether or not patentable) know-how, technical data, techniques, concepts, information or tools, and all associated Intellectual Property Rights thereto developed by Ambition and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services pursuant to the Agreement that derive from, improve, enhance or modify Ambition’s Preexisting Technology. “Generic Components” means all inventions (whether or not patentable), works of authorship, designs, know-how, ideas, information and tools, including without limitation software and programming tools developed by Ambition and its Affiliates or their Consulting Services Personnel in connection with providing Consulting Services generally to support Ambition’s product and/or service offerings (including, without limitation the Services) and which can be so used without use of Subscriber’s Confidential Information.