Agreement between User and Motif Research, Inc.
These Artifact Platform Terms of Service (the “Terms”), constitute a binding agreement between you, the person or entity accepting these Terms (“Customer” or “you”), and Motif Research, Inc. DBA Artifact (“Artifact,” “we,” or “us”) with respect to your access to or use of the Artifact Platform and Platform Service. The Platform Service is offered subject to your acceptance, without modification, of all terms and conditions set forth herein.
PLEASE READ THESE TERMS CAREFULLY. BY CLICKING “I ACCEPT”, BY ACCESSING OR USING THE ARTIFACT PLATFORM, PLATFORM SERVICE OR ANY PORTION THEREOF IN ANY MANNER, OR BY PLACING ANY ORDER, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE, INCLUDING, WITHOUT LIMITATION, THE ARTIFACT PRIVACY POLICY; (B) AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND (C) IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ACCEPT THESE TERMS ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE ARTIFACT PLATFORM OR PLATFORM SERVICE IN ANY MANNER.
ARTIFACT MAY REFUSE ACCESS TO OR USE OF THE ARTIFACT PLATFORM OR PLATFORM SERVICE FOR NONCOMPLIANCE WITH ANY PART OF THESE TERMS. THESE TERMS ARE VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE ARTIFACT PLATFORM OR PLATFORM SERVICE ARE REVOKED IN SUCH JURISDICTIONS.
Any capitalized terms used herein but not otherwise defined will have the meanings set forth below“Artifact Platform” means Artifact’s data insight software-as-a-service platform, operated through the Site.
“Authorized User”
means an individual employee or contractor of Customer who has been assigned unique credentials to access and use the Platform Service, whether or not that individual is accessing or using the Platform Service at any particular time.
“Customer Content”
means any content, materials, data or information made available for upload or input to the Artifact Platform or Platform Service by or on behalf of Customer or any Authorized User, including, without limitation, by means of any Customer Data Source.
“Customer Data Source”
means a third-party application or data source belonging to or licensed by Customer and which Customer has authenticated through the Artifact Platform and supplementary third-party software and from which Customer has authorized the extraction, loading, and transformation of Customer Content into the Artifact Platform for analysis, synthesis, categorization and/or summary in accordance with the specific scope of the Platform Services specified in the Order.
“Data Connectors”
means the system-to-system applications, provided directly by Artifact or by means of a Third Party Service (as defined below), through which Customer Content is uploaded or inputted to the Artifact Platform from Customer’s systems or from a Customer Data Source.
“Dashboard Deliverables”
means the augmented analytics delivered by Artifact to Customer through display on the Artifact Platform’s customer-facing dashboard.
“Documentation”
means any printed, electronic, or online user instructions, help files, or other documentation made available by Artifact and relating to the Artifact Platform and/or Platform Service, as may be updated from time to time.
“Order”
means any online order specifying the Platform Service to be provided hereunder, including in connection with any applicable Subscription Plan, and incorporating these Terms, and which is entered into between Customer and Artifact. Artifact may choose not to accept Orders at its sole and absolute discretion.
“Platform Service”
means the web-based services included in Customer’s Subscription Plan, as specified in the Order, that are facilitated by the Artifact Platform.
“Site”
means the Artifact website with a homepage at https://app.artifact.io/, its subdomains and/or other websites, and any associated mobile or desktop applications designated by Artifact for use with the Platform Service from time to time.
Subject to and conditioned upon Customer’s compliance with these Terms, Artifact will provide to Customer’s Authorized Users access to and use of the Platform Service during Customer’s paid-up subscription period (or Trial (as defined herein), if applicable), solely for Customer’s internal business purposes. The scope of Customer’s access to the Platform Service may be determined or otherwise limited (including, by way of example and without limitation, with respect to storage capacity and computational capacity for specific features or functionality) by the terms of the applicable Subscription Plan (as defined herein) selected by Customer and identified on an applicable Order or as otherwise set forth in the Documentation.
In order to access and use the Platform Service or certain features thereof, Customer may be required to establish an Artifact user account (a “User Account”). You must provide true, accurate, current, and complete information as prompted by the applicable registration or login form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your User Account, regardless of who conducts those activities. You are responsible for maintaining (and for ensuring that any Authorized Users maintain) the confidentiality of any user IDs, passwords and other credentials associated with your User Account, and shall immediately notify Artifact of any actual or suspected unauthorized access to or use of your User Account or any associated user IDs, passwords, or other credentials. You will cooperate fully with Artifact and take all actions that Artifact reasonably deems necessary to maintain or enhance the security of the Artifact Platform, the Platform Service, Artifact’s computing systems and networks, and your access to the Platform Service. Artifact is not and shall not be deemed liable for any loss or damage to you arising from your (or your Authorized Users’) failure to comply with this Section 3.
You agree to access and use the Artifact Platform and Platform Service solely for your internal business purposes, in accordance with all Documentation and in accordance with all applicable law. You shall not (and shall ensure that your Authorized Users do not): (i) except as otherwise expressly permitted herein with respect to Dashboard Deliverables, copy, reproduce, frame, mirror, modify, decompile, disassemble, create derivative works based on, or reverse engineer the Artifact Platform, Platform Service, or any associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (ii) provide any third parties with access to the Artifact Platform or any of the Platform Service, or use any of the Artifact Platform or Platform Service for time sharing or similar purposes for the benefit of any third party; (iii) sell, resell, rent or lease the Artifact Platform or Platform Service; (iv) remove any copyright or proprietary notices contained in the Artifact Platform or Platform Service or any output of the foregoing; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure provided or used by the Artifact Platform or Platform Service; (vi) access the Artifact Platform or Platform Service via any bot, web crawler or non-human user; (vii) access or use (or permit a third party to access or use) the Artifact Platform or Platform Service for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Artifact Platform or Platform Service or for any other benchmarking or competitive purposes; (viii) attempt to gain unauthorized access to the Artifact Platform, Platform Service, or any related systems, software or networks; (ix) access the Artifact Platform or Platform Service in order to build a competitive product or service, or copy any features, functions or graphics of the Artifact Platform or Platform Service; (x) use the Artifact Platform or Platform Service to transmit viruses or malicious code; or (xi) make any use of, or take any other action with respect to, the Artifact Platform, the Platform Service, or any component of the foregoing in a manner that violates applicable law or any provision of these Terms. Artifact may suspend or terminate your or any Authorized User’s access to the Artifact Platform and Platform Service, or any component thereof, if Artifact reasonably determines that you or any Authorized User has violated any term or condition of these Terms. Customer shall be liable to Artifact for any violation of the terms and conditions of these Terms by Customer or by any Authorized User.
a. Customer Content.
ou understand and acknowledge that Artifact’s ability to make the Platform Service available to Customer and its Authorized Users is dependent upon Customer making available to Artifact, for access by Artifact through its Data Connectors, all required Customer Content. As between Customer and Artifact, Customer is solely and exclusively responsible for providing all authorizations, and securing all authorizations from all Customer Data Sources, necessary to accomplish the foregoing. You acknowledge and agree that Artifact shall not be liable to you or to any third party for any failure, delay, or deficiency in its performance of the Platform Service arising from (i) any failure by Customer or any Customer Data Source to authorize connection to the Data Connectors, (ii) any system failure or technical deficiency on the part of Customer or any Customer Data Source that prevents or limits access by Artifact to Customer Content or other necessary Customer content, materials, data or information, or (iii) any failure by Customer or any Customer Data Source to provide full, complete, and accurate Customer Content or other necessary Customer content, materials, data or information.
b. Content Restrictions.
As between Customer and Artifact, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. You will not, and you will ensure that any Authorized Users do not, upload or otherwise submit, directly or indirectly, and including through any Customer Data Source, any Customer Content or other information, materials, or content that: (a) infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (b) violates any applicable law, or (c) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. You acknowledge that neither the Artifact Platform nor the Platform Service is designed with security and access management for processing or storing any personal information that imposes specific data security obligations on Artifact for the processing or storage of such data, including, without limitation, any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, cardholder, payment card, or related information protected by the Payment Card Industry Data Security Standard, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, or other information similar to any of the foregoing, however described, as defined under applicable law (each of the foregoing, “Prohibited Content”). Customer shall not, and shall not permit any Authorized User or other person or entity (including any Customer Data Source) to, provide any Prohibited Content to, or upload or submit any Prohibited Data through, the Artifact Platform or the Platform Service. Customer is solely responsible for reviewing all Customer Content and shall ensure that no Customer Content constitutes or contains Prohibited Content.
You acknowledge and agree that the access to and use of the Platform Service by you and any Authorized Users is dependent upon access to telecommunications and Internet services. You acknowledge that Artifact is not responsible for acquiring or maintaining any telecommunications or Internet services or other hardware or software that you or your Authorized Users may need to access and use the Platform Service, or that any Customer Data Source may need to connect with the Data Connectors or otherwise facilitate the uploading of Customer Content to the Platform Service, or for any costs, fees, expenses, or taxes of any kind related to the foregoing.
The parties may enter into a separate, mutually executed statement of work that incorporates these terms (an “SOW”), pursuant to which Artifact may agree to provide certain professional services to Customer in connection with Customer’s use of the Platform Service. Customer will provide such cooperation and assistance as Artifact may reasonably request in order to facilitate the performance of any such professional services. If any professional services involve the delivery of reports, documents or other deliverables, Customer will be free to use such deliverables for its internal business purposes and subject to the confidentiality provisions of these Terms. The parties acknowledge, however, that unless expressly and unambiguously set forth in the SOW, the professional services will not be construed as transferring (or as requiring Artifact to transfer) to Customer any intellectual property rights in any deliverables or other work product. In the event that Artifact fails to perform the professional services in material conformance with the terms of the applicable SOW, Customer shall notify Artifact in writing no later than thirty (30) calendar days after performance of the affected professional service by Artifact, which written notification shall set forth in reasonable detail the basis for Customer’s assertion of non-compliance. If Artifact agrees with the basis for assertion of non-compliance, then at Artifact’s sole option, Artifact shall either (i) re-perform the professional service (or affected portion thereof) at no additional charge to Customer, or (ii) refund to Customer the applicable fees for the professional service (or affected portion thereof). THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND ARTIFACT’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF ANY PROFESSIONAL SERVICES.
a. Subscription plans.
The Platform Service is offered on a subscription basis and in accordance with the individual service plan selected by Customer and identified in the Order (a “Subscription Plan”). We may modify, terminate, or replace any Subscription Plan from time to time in our sole discretion and without prior notice; provided, however, that any such modification, termination, or replacement shall not become effective as to you until the end of your then-current subscription term or Renewal (as defined below), as the case may be. Customer should carefully review the scope and limitations of any Subscription Plan prior to placing an Order.
b. Free trials.
Your subscription to the Platform Service may be preceded by a free trial (a “Trial”). We reserve the right, in our sole discretion, to determine your eligibility for a Trial. If you receive a Trial, you may only use those portions of the Platform Service included in your Trial, only for the duration of that Trial, and only for the purpose of evaluating the desirability of purchasing the Platform Service. Upon the expiration of any Trial period, your access to the Artifact Platform and Platform Service will cease, except where Customer has purchased and/or registered for a Subscription Plan in accordance with the terms hereof.
c. Subscription plans.
As consideration for Artifact’s provision of the Artifact Platform and Platform Service hereunder, Customer will pay to Artifact all subscription fees and other amounts set forth hereunder or in the Order. Except where you are accessing the Platform Service by means of a Trial, Customer must have a current valid credit card or other payment method acceptable to Artifact ("Payment Method") in order to access (or permit Authorized Users to access) the Artifact Platform or Platform Service. By providing a Payment Method to Artifact, Customer is expressly authorizing Artifact to charge Customer the subscription fees and other amounts applicable to Customer’s Subscription Plan at the applicable frequency and at the then-current rate. Unless otherwise expressly set forth in the Order, the subscription fees applicable to Customer’s Subscription Plan shall be as posted on the BILLING page as of the payment due date. Artifact will bill all applicable subscription fees and other amounts in advance and to the Payment Method Customer provides during registration, or to a different Payment Method if Customer advises Artifact in writing of a change and provides an alternate, valid Payment Method). ALL SUBSCRIPTION FEES ARE FULLY EARNED UPON PAYMENT AND ARE NON-REFUNDABLE.
d. Renewals.
Unless otherwise expressly set forth in the Order, your Subscription Plan will automatically renew for additional subscription terms of the same length upon expiration of your initial subscription term unless and until you cancel your Subscription Plan or we terminate it. YOU MUST CANCEL YOUR SUBSCRIPTION PLAN BEFORE IT RENEWS FOR A RENEWAL SUBSCRIPTION PERIOD IN ORDER TO AVOID BILLING OF SUBSCRIPTION FEES FOR THE RENEWAL SUBSCRIPTION PERIOD TO YOUR PAYMENT METHOD.
e. Cancelation.
Unless otherwise established in an applicable Order, Customer may cancel its Subscription Plan at any time; provided, however, that any such cancellation shall not become effective until the expiration of your then-current subscription term. If you cancel your Subscription Plan, you will continue to have access to the Platform Service in accordance with the terms of your applicable Subscription Plan for the remainder of the then-current subscription term. ARTIFACT DOES NOT PROVIDE REFUNDS OR CREDITS WITH RESPECT TO THE PLATFORM SERVICE OR ANY SUBSCRIPTION PLAN, INCLUDING FOR ANY PARTIALLY-USED SUBSCRIPTION TERMS. To cancel a Subscription Plan, please send a written cancelation request via email to Artifact at SUPPORT@ARTIFACT.IO and include the phrase “CANCEL SUBSCRIPTION” in the subject line. Cancelations of Subscription Plans will only be effective when submitted in compliance with the requirements of, and as set forth in, this Section 8(e).
f. Taxes.
The fees specified in these Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Artifact’s net income.
g. Promotions.
Artifact may offer from time to time promotions on its website or with respect to the Platform Service (including, without limitation, Trials) that may affect pricing and that are governed by terms and conditions separate from or in addition to those in these Terms. If there is a conflict between the terms for a promotion and the provisions of these Terms, the promotion terms will govern.
a. Term.
These Terms shall remain in full force and effect while you use or have access to the Artifact Platform or Platform Service. Artifact may terminate or restrict your access to any or all of the Artifact Platform, Platform Service, or your User Account, for any reason, and without warning, and Artifact reserves the right to discontinue or modify any aspect of the Artifact Platform or Platform Service at any time. Any termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. Upon termination of these Terms, you will remain liable for any accrued charges and amounts which become due for payment before termination and immediately cease to use the Artifact Platform and Platform Service.
b. Effect of termination.
Upon expiration or termination of your Subscription Plan, (a) all rights of Customer and any Authorized User to access or use the Artifact Platform or Platform Service shall immediately terminate (except as expressly set forth in the following sentence), (b) any SOWs shall immediately terminate, and Artifact shall cease performance of all professional services; and (c) Customer shall promptly pay to Artifact any subscription fees, professional service fees, expenses, and other amounts due and owing to Artifact as of the date of such expiration or termination, including, with respect to professional services, a pro-rata portion of any fees, expenses or other amounts incurred with respect to any partially completed professional services. Following termination of your Subscription Plan, but subject to Customer’s full payment of all fees, expenses and other amounts due to Artifact, Artifact shall permit Customer limited access to the Artifact Platform for a period not to exceed 30 days from the date of such termination for the sole and exclusive purposes of allowing Customer to download from the Artifact Platform any Customer Content or Dashboard Deliverables hosted on or available through the Artifact Platform as of the date of termination. Following the expiration of such 30-day period, Artifact shall have no obligation to maintain, and may delete, any Customer Content or Dashboard Deliverables in its possession.
c. Survival.
The provisions of the following Sections of these Terms will survive any expiration or earlier termination of the Agreement: Sections 1, 3 (with respect to the final sentence), 4-6, 7 (with respect to the final two sentences), 8, 9(b)-(c), 10, 11, 14-19.
You acknowledge and agree that all information collected by Artifact is subject to our Privacy Policy. By accessing or using the Artifact Platform or Platform Service in any manner, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.
a. Artifact Intellectual Property.
As between you and Artifact, the Artifact Platform, the Platform Service, and all software and other technologies embodied in or used to provide the same, and all intellectual property rights therein or relating thereto (collectively, the “Artifact IP”), are and shall remain the exclusive property of Artifact. No rights are granted to Customer or any Authorized User hereunder other than as expressly set forth herein.
b. Customer Content.
As between Customer and Artifact, Customer owns all right, title and interest in and to all Customer Content and Dashboard Deliverables (except, with respect to Dashboard Deliverables, to the extent including or incorporating any Artifact IP). Customer hereby grants to Artifact a nonexclusive, worldwide, transferable, sublicensable (to its subcontractors), irrevocable, royalty-free, fully paid-up license to extract, process, store, and otherwise access and use the Customer Content for purposes of providing the Platform Service and making the Artifact Platform available to Customer and its Authorized Users and for such other purposes as may be set forth herein.
c. Data Use Rights.
You acknowledge and agree that Artifact may monitor Customer’s and its Authorized Users’ use of the Artifact Platform and Platform Service and use data and information related to such use, including, without limitation, to compile statistical and performance information related to the provision and operation of the Artifact Platform and/or Platform Service (“Aggregated Statistics”). As between Artifact and Customer, the Aggregated Statistics and all intellectual property rights therein or relating thereto are and shall remain the exclusive property of Artifact. Artifact may, without limitation, (i) make such Aggregated Statistics publicly available, (ii) use the Aggregated Statistics to the extent and in the manner required by applicable law or regulation, and (iii) use the Aggregated Statistics to maintain, optimize and improve the Artifact Platform and Platform Service, to develop, improve, or offer other Artifact products or services, or to otherwise operate Artifact’s business. In addition, and without limiting any other rights of Artifact hereunder, you hereby grant to Artifact permission to use, on a de-identified basis and subject to Section 10 hereof, any Customer Content or other data or information that Artifact learns, acquires, or obtains in connection with this Agreement, for the purposes of providing and improving the Artifact Platform and/or Platform Service and Artifact’s products and services and for such other purposes as may be set forth herein or in the Privacy Policy.
d. Feedback.
To the extent you or any Authorized User provides Artifact with any suggestions, feature requests, evaluation results, feedback, or other input in relation to any aspect of the Artifact Platform or Platform Service (collectively, “Feedback”), you hereby assign and agree to assign to Artifact all right, title and interest in and to such Feedback, including any intellectual property rights therein, and agree that Artifact will be free to use such Feedback in any manner, including by implementing such Feedback in the Artifact Platform, Platform Service and/or Artifact’s other technologies, products and services, without compensation or other obligation to you.
Artifact will maintain appropriate physical, administrative, and technical safeguards to protect against the unauthorized accessing, use, destruction, corruption, loss or alteration of the Artifact Platform or any Customer Content in Artifacts control or possession. Artifact will protect the privacy of Customer Content in its control or possession in accordance with the Data Processing Addendum (the “DPA”), which is hereby incorporated into these Terms by reference.
Subject to the terms and conditions of this Agreement, Artifact will use commercially reasonable efforts to make the Artifact Platform and Platform Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Artifact will use commercially reasonable efforts to provide at least 72 hours advance notice); (b) routine maintenance times (currently scheduled for every 30 days and as otherwise specified by Artifact); and (c) any unavailability caused by a Force Majeure Event (as defined in Section 19(b) hereof). Artifact provides live support for the Artifact Platform Mondays through Fridays from 8 A.M MST to 6P.M. MST. To contact support please email SUPPORT@ARTIFACT.IO.
The Artifact Platform or Platform Service may contain links to, incorporate, or otherwise allow you to access third party applications and services (“Third Party Services”) that are not owned or controlled by Artifact. When you access third party websites or Third Party Services, you do so at your own risk. Artifact encourages you to be aware when you leave the Artifact Platform and to read the terms and conditions and privacy policy of each third-party website or Third Party Service (“Third Party Terms”) that you visit or from which you access any product or service. Artifact has no control over, and assumes no responsibility for, the content, accuracy, Third Party Terms, or practices of any third-party website or Third Party Service. In addition, Artifact will not and cannot monitor, verify, censor, or edit the content of any third-party website or Third Party Service. When you visit or use a third party’s website or Third Party Service, you acknowledge that such website or Third Party Service is subject to the applicable Third Party Terms, and you release us from any liability arising from your use of such websites or Third Party Service. You acknowledge that we are not responsible for such third parties or their products or services. Any such activities, and any Third Party Terms associated with such activities, are solely between you and the applicable third party.
a. Confidential Information.
“Confidential Information” means (subject to the exclusions below) any non-public information relating to or disclosed by a party in the course of these Terms that should be reasonably understood to be confidential. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly granted under these Terms. The receiving party will promptly return or destroy the other party’s Confidential Information upon request.
b. Exclusions.
Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the other party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section. If a receiving party is required to disclose Confidential Information by law, the receiving party will, where permitted by applicable law, promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section on account of making the required disclosure.
THE ARTIFACT PLATFORM AND PLATFORM SERVICE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND ARTIFACT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE, AND NON-INFRINGEMENT. NEITHER ARTIFACT NOR ANY PERSON ASSOCIATED WITH ARTIFACT MAKES ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE ARTIFACT PLATFORM OR PLATFORM SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER ARTIFACT NOR ANYONE ASSOCIATED WITH ARTIFACT REPRESENTS OR WARRANTS THAT THE ARTIFACT PLATFORM OR PLATFORM SERVICE, OR ANY RESULTS GENERATED THEREFROM (INCLUDING, WITHOUT LIMITATION, ANY DASHBOARD DELIVERABLES), WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE ARTIFACT PLATFORM, THE PLATFORM SERVICE, OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE ARTIFACT PLATFORM OR PLATFORM SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. AS BETWEEN YOU AND ARTIFACT, YOU ASSUME ALL RISK IN CONNECTION WITH YOUR USE OF, INTERPRETATION OF, AND RELIANCE ON THE ARTIFACT PLATFORM, THE PLATFORM SERVICE, AND ALL CONTENT AND RESULTS GENERATED THEREBY (INCLUDING, WITHOUT LIMITATION, ANY DASHBOARD DELIVERABLES). CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT PERFORMANCE OF THE PLATFORM SERVICE AND THE DEVELOPMENT AND DELIVERY OF DASHBOARD DELIVERABLES BY ARTIFACT IS DEPENDENT UPON AND SUBJECT TO THE AVAILABILITY OF CUSTOMER CONTENT, INCLUDING AS MAY BE REQUIRED TO BE MADE AVAILABLE BY CUSTOMER DATA SOURCES. ARTIFACT SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY LOSS, DAMAGE, OR OTHER ISSUE CAUSED BY THE UNAVAILABILITY, INCOMPLETENESS, OR INACCURACY OF ANY SUCH CUSTOMER CONTENT, WHETHER CAUSED BY CUSTOMER OR A THIRD PARTY.
a. Indemnification by Artifact.
Artifact agrees to indemnify, defend, and hold Customer harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of any third party claim or suit brought against Customer alleging that the Artifact Platform infringes any patent issued as of the Effective Date or any copyright or trade secret; provided, however, that (i) Customer promptly notifies Artifact in writing of such claim or suit, (ii) Artifact or its designee is given sole control of the defense and/or settlement of such claim or suit, and (iii) Customer provides to Artifact such information and assistance as Artifact or its designee may reasonably request. To the extent that Customer’s use of the Artifact Platform and/or Platform Service is enjoined, Artifact may, at its option, either (x) procure for Customer the right to use the Artifact Platform and/or Platform Service, (y) replace the Artifact Platform and/or Platform Service with another suitable solution, or (z) terminate this Agreement and refund to Customer any subscription fees paid by Customer for access to the Artifact Platform and/or Platform Service during the three (3) month period prior to such termination. Artifact shall have no liability under this Section or otherwise to the extent a claim or suit is based upon use of the Artifact Platform and/or Platform Service in combination with infringing Customer Content, software or hardware not provided by Artifact, or any failure to use the Artifact Platform and Platform Service in accordance with any written instructions provided for such use. The terms in this Section shall be Customer’s sole and exclusive remedy in connection with third party claims of infringement.
b. Indemnification by Customer.
You agree to indemnify, defend, and hold Artifact and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from (a) your or any Authorized User’s access to or use of the Artifact Platform or Platform Service, (b) your or any Authorized User’s violation of this Agreement or applicable law; (c) any claim that the Customer Content infringes, misappropriates, or otherwise violates the intellectual property rights or rights of privacy of any third party; and (d) any upload or submission of Prohibited Content to the Artifact Platform or Platform Service by or by means of you, any Authorized User, or any Customer Data Source. We reserve the right, at our own expense, to assume the exclusive defense and control of any action subject to indemnification by you, and in such event you agree to cooperate with us in defending such action.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ARTIFACT OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE ARTIFACT PLATFORM OR PLATFORM SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF ARTIFACT IS FOUND LIABLE FOR ANY LOSS OR DAMAGE UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, IN NO EVENT WILL ARTIFACT’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO ARTIFACT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM. If you are not satisfied with the Artifact Platform or Platform Service, your sole and exclusive remedy is to cancel your Subscription Plan and cease all access to and use of the Artifact Platform and Platform Service.
Some jurisdictions do not allow the limitation of liability for incidental or consequential damages or other damages or liability, so the foregoing limitations may not apply to you. To the extent that in a particular circumstance any limitation on damages or liability set forth in this Section is prohibited by applicable law, then, instead of the provisions hereof in such particular circumstance, Artifact shall be entitled to the maximum limitations on damages and liability available at law and equity in that particular circumstance.
a. Marketing.
Artifact may use Customer’s name as part of a general list of clients and may refer to Customer as a client and user of the Platform Service in its general advertising and marketing materials.
b. Force Majeure.
Artifact will not be liable for any delay or failure in the performance of our obligations under this Agreement if the delay or failure is due to any cause outside of our reasonable control (any such cause, a “Force Majeure Event”).
c. Assignment.
You may not assign or transfer these Terms or any rights or obligations hereunder to any other person without Artifact’s prior written consent. Any purported assignment in violation of this paragraph is void and of no effect. Artifact may assign these Terms or its obligations hereunder without restriction. These Terms shall be binding on the parties and their permitted successors and assigns. A person who is not a party to these Terms has no right to benefit under or to enforce any provision of these Terms.
d. Export Compliance.
Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Artifact Platform, the Platform Service, nor any direct product thereof, are: (i) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by such export laws and regulations.
e. Government Rights.
If Customer is the U.S. government or any agency or other division thereof, Artifact’s services are furnished under this Agreement as a "commercial item," as that term is defined and used in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101) and other applicable regulations, and the government’s rights with respect to the services (and to any associated software, technical data or other materials) are limited to those expressly granted in this Agreement.
f. Governing Law and Venue.
These Terms and any dispute or claim arising out of or related to these Terms, its subject matter or formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of Utah. The United Nations Convention on Contracts for the International Sale of Goods shall have no applicability. The parties further agree that the exclusive venue and jurisdiction any dispute arising or relating to these Terms shall be a court of competent jurisdiction located in Salt Lake City, Utah. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
g. Waiver of Jury Trial and Class Action Waiver.
YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE TERMS. YOU AND ARTIFACT EACH AGREE THAT ANY SUIT, PROCEEDING, OR OTHER ACTION ARISING OUT OF OR RELATED TO THESE TERMS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
h. Notices.
Artifact may give notice to Customer by means of electronic mail to Customer’s e-mail address on record with Artifact (including any email account associated with Customer’s User Account) or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Artifact. Customer may give notice to Artifact by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to:
Motif Research, Inc. DBA Artifact
3450 N. Triumph Blvd.
Unit 102 ATTN: Artifact
LEHI UT 84043
Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language. For contractual purposes, you consent to receive communications from us in electronic form and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
i. Severability and Waiver.
If any part or provision of these Terms is held by a court of competent jurisdiction to be invalid, unenforceable, or in conflict with the law, that part or provision shall be replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision, and the remainder of these Terms will continue in full force and effect. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If we waive any breach of these Terms, such waiver will not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
j. Entire Agreement.
These Terms, together with the Order, Privacy Policy and any SOW, constitutes the sole and entire agreement between you and Artifact with respect to the subject matter hereof, and supersede and extinguish all prior agreements, representations (whether oral or written), and understandings regarding such subject matter.
