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Terms of UseIMPORTANT: THIS ACCEPTABLE USE POLICY (THIS “AGREEMENT”) IS A LEGALLY BINDING AGREEMENT BETWEEN YOU, AN INDIVIDUAL OR A SINGLE ENTITY (“YOU” OR "YOUR"), AND ACUMEN DATA SYSTEMS, INC.("ACUMEN,” “WE,” “US,” OR “OUR”) THAT SETS FORTH THE TERMS AND CONDITIONS FOR THE USE BY YOU OF ACUMEN’S SOFTWARE APPLICATIONS AND OTHER PRODUCTS (THE “PRODUCTS”). ACUMEN LICENSES SOFTWARE TO YOU (AND OFFERS THE SOFTWARE AS A SERVICE) UPON THE EXPRESS CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING THE SERVICE. BY UTILIZING OUR WEBSITE, WEB-BASED MATERIAL, OR PRODUCTS, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. EACH TIME YOU ACCESS OUR PRODUCTS OR PROPERTIES, YOU ARE AFFIRMATIVELY STATING THAT YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. ACUMEN IS UNWILLING TO PROVIDE YOU WITH ACCESS TO THE SERVICE UNLESS YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. Acumen and You are the only parties to this Agreement and are sometimes referred to singularly as a “Party” or collectively as the “Parties.” 1. General. Our products, including access to certain software applications, content and/or other information, and other content owned or licensed by Acumen and/or its suppliers, licensors, or other third parties (collectively, the “Contributors”), is provided by Acumen, a corporation based in Massachusetts, through Products located at www.acumendatasystems.com (the “Site”) or licensed at your location. 2. Restricted License. Subject to the terms and conditions of this Agreement, Acumen hereby grants to You (and You accept) a non-exclusive, non-transferable license to access and use our Products and Services. All rights not expressly granted to You are hereby reserved by Acumen and/or the respective Contributor. Acumen and each Contributor shall have the right to assert and enforce the provisions of this Article 2 directly on its own behalf. You agree (a) to abide by this Agreement and any and all licensing agreements between a third party Contributor and You (collectively, the “Licensing Documents”); and (b) to keep Your authorized account (“Account”) information confidential, including Your password, username and any other information related to the Service (“Account Information”), and to inform Acumen promptly upon the unintended and/or undesired disclosure of any portion of such Account Information. 3. Intellectual Property Rights. It is hereby understood and agreed that as between Acumen and You, Acumen is the owner of all rights, title and interest, including all Intellectual Property Rights (as defined below), to the Service, the Site, and any comments, suggestions, ideas, graphics, questions or other information submitted by You through the Site or the Service (“Submissions”). Acumen shall be entitled to use such Submissions for any commercial or other purpose whatsoever without compensation to you or anyone else. You hereby warrant that no Submissions shall violate any Intellectual Property Right of any third party. For the purposes of this Agreement, “Intellectual Property Rights” shall mean any and all of the following: (a)rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (b)Trademark and trade name rights and similar rights; (c)Trade secret rights; (d)Patents, designs, algorithms and other industrial property rights; (e)All other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including, but not limited to logos, “rental” rights, rights of publicity, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (f)All registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing). Except as expressly provided herein, You do not acquire any rights to our Products or Services through the purchase of licenses to the Products, Services, or the Site. You may not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code (i.e., the human-readable form of any computer programming code) (“Source Code”) of the components of the Service, or create derivative works based thereon. You also may not download, republish, reproduce, copy, post, transmit, or in any way distribute any material from the Site unless such activities are in direct furtherance of Your permitted use of the Service and do not in any way violate this Agreement or any Licensing Documents. You are not permitted to: (a) rent, lease, assign or transfer all or any part of the Products and/or Your Account Information to any person or entity without the prior written consent of Acumen; (b) remove any proprietary notices, labels, or marks on any component of the Service (or the Service or Site generally), whether in machine language or Source Code; (c) use the Service to provide a service bureau by which the Service can be accessed by third parties or by which information produced pursuant to the Service is sold or given to third parties via pay per call or other arrangements; or (d) sublicense, assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason without the prior written consent of Acumen. Any attempt to sublicense, assign, delegate or transfer this license, either by contract, statute, corporate merger of any sort, regulation or court order, without the prior written consent of Acumen shall be voidable at Acumen's sole and absolute discretion. Failure to comply with these restrictions will result in automatic termination of this Agreement. 4. Privacy. Acumen will not disclose any personal information about Your use of the Service in violation of the Acumen Privacy Policy. 5. Payment. You are responsible for paying all fees and charges (plus applicable taxes) associated with your use of the Products and Services as such fees become due. Except as otherwise provided in this Agreement, all fees and charges are non-refundable. 6. Term. This Agreement shall continue until terminated pursuant to Article 7 below. 7. Termination. Either Party may terminate this Agreement without reason effective upon ninety (90) days notice to the other Party (“Settlement Period”), or for such other reason as may be set forth in the SLA or any other agreements between the Parties. You recognize that Acumen is anticipating and making other business arrangement to improve the Service based on Your continued use of and payment for the Service during the Settlement Period. The Parties acknowledge that at the time this Agreement is being entered into it would be difficult to ascertain Acumen’s damages if You fail to pay during the Settlement Period. Therefore, You agree to pay Acumen the entire Service Fee due for the Settlement Period and, provided that you make such payment, Acumen agrees to continue providing you with access to and use of the Service pursuant to this Agreement's terms and conditions. Notwithstanding the foregoing, Acumen may immediately terminate this Agreement and Your Account upon (a) Your breach of any provision of this Agreement or (b) any action by you that Acumen determines, in its sole judgment, to interfere with the operation or use of the Service. In the event of immediate termination, Acumen shall be entitled to keep the entire Service Fee for the month in which such termination occurred and you shall not be entitled to any refund thereof. Any provision of this Agreement which may reasonably be interpreted or construed as surviving the termination of the Agreement shall survive such termination of this Agreement for any reason. 8. JAVA. The Service may contain software written in Java. Java technology is not fault tolerant and is not designed, manufactured, or intended for use as online control equipment in hazardous environments requiring fail-safe performance, including, but not limited to, the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of Java technology could lead directly to death, personal injury, or severe physical or environmental damage. 9. Equipment– Operation. You are solely responsible for acquiring and maintaining all computer hardware and software, telephone, and other equipment, and all communications and other services needed for access to and use of our Products and Services. Acumen reserves the right at any time and for any reason to modify or discontinue any aspect or feature of our Services, including, but not limited to, content, functionality, and the equipment required to access or use the Service. 10. Hyperlinked Material. The Site may contain hyperlinks to other sites on the Internet which are not owned or controlled by Acumen. Acumen cannot assume any responsibility for any material on such sites, or any other material outside of the Site, which is accessed directly or indirectly by any such hyperlink. 11. Security and Data Storage. You shall not permit or allow other persons to have access to or to use Your Account Information other than Your employees, consultants or agents who have been notified of the restrictions set forth in this Agreement, absent Acumen’s prior express written consent. You agree to maintain the confidentiality of all of Your Account Information and agree to be primarily responsible for all activity pursuant to Your Account. Although Acumen has taken significant measures to ensure the security of information submitted by You in using the Service, Acumen cannot guarantee the security of information collected during Your use of the Service and shall not be liable in any way for compromise of Your data. 12. Relationship of the Parties – Independent Contractor. It is expressly understood and agreed that the relationship between the Parties is as follows: each Party is acting as an independent contractor and is not an agent, partner, or joint venture with the other Party for any purpose. The Parties have no authority to assume or create any obligation for or on behalf of the other Party, express or implied, with respect to this Agreement or otherwise. 13. ACUMEN DISCLAIMER OF WARRANTIES. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT OR THE SLA TO THE CONTRARY, THE SERVICE IS FURNISHED “AS IS” AND WITH ALL FAULTS. ACUMEN MAKES, AND YOU RECEIVE, NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY COMMUNICATION WITH YOU. ACUMEN AND ITS CONTRIBUTORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, AND/OR THE FAILURE TO PROVIDE ADEQUATE SUPPORT FOR THE SERVICE. ACUMEN DOES NOT WARRANT THAT OUR PRODUCTS AND SERVICES ARE FREE OF INACCURACIES, ERRORS, BUGS, INTERRUPTIONS OR OTHER PROGRAM LIMITATIONS. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE REMAINS WITH YOU, AND YOU AGREE TO ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS. YOU SPECIFICALLY AGREE THAT ACUMEN SHALL NOT BE RESPONSIBLE FOR THE UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSMISSION(S) ENTERED IN THROUGH THE SERVICE, ANY EXPENSES, DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSIONS, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, UNDESIRABLE BEHAVIOR, NEGLIGENCE, OR FOR ANY OTHER CAUSE OF ACTION. YOU ALSO AGREE THAT ACUMEN IS NOT RESPONSIBLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL CONTENT OR CONDUCT OF ANY THIRD PARTY OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. 14. Limitation of Liability. You acknowledge that the operation and availability of the communications systems, including, without limitation, telephone service, computer networks and the Internet, used for accessing and interacting with the Service can be unpredictable and may, from time to time, interfere with or prevent access to or operation of our Products and Services. You acknowledge that Acumen is not responsible for any such interference with or prevention of Your use of or access to our Products and Services. 15. Indemnification. You agree to indemnify and hold harmless each and every Contributor, and their respective affiliates, officers, directors, employees, consultants, agents, licensees and licensors from any claim, demand, or damages, including reasonable attorneys’ fees, asserted by any third party due to, arising out of, or in any way related to, the use of our Products and Services under Your Account. As used in this Agreement, “affiliate” means any entity which controls, is controlled by, or is under common control with the named entity. 16. Equitable Relief. You acknowledge that, at the time this Agreement is entered, it would be impossible or inadequate to measure and calculate all of Acumen’s damages for the breach of certain provisions of this Agreement and that it would require a court of competent jurisdiction to ascertain Acumen’s damages. Accordingly, if You breach or threaten to breach any of Your obligations, other than payment when due, Acumen shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Your obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting Acumen from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages. 17. Trademarks. Acumen reserves full rights for the following trademarks:
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