Ferant Terms of Service

If you signed an offline variant of this Agreement for use of the Ferant services under the same Ferant Account, the terms below do not apply to you and your offline terms govern your use of the Ferant Services.

These Ferant Terms of Service (together, the "Agreement") are entered into by Ferant and the entity or person agreeing to them ("Customer") and govern Customer's access to and use of the Services. "Ferant" has the meaning given at https://policies.ferant.io/terms/ferant-entity.

This Agreement is effective when Customer clicks to accept it (the "Effective Date"). If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement.

Ferant provides certain assessments, reporting, professional development, and other services, to help students discover their interests and strengths and explore colleges and careers. Ferant is accessible by 9th-12th grade students and their parents, counselors, and staff.

1. Provision of the Services.

   1. Services Use. During the Term, Ferant will provide the Services in accordance with the Agreement. Customer may use the Services ordered in the applicable Order Form or Reseller Order in accordance with this Agreement.

   2. Admin Console. Customer will have access to the Admin Console, through which Customer may manage its use of the Services.

   3. Accounts; Verification to Use Services.

      1. Accounts. Customer must have an Account to use the Services and is responsible for the information it provides to create the Account, the security of its passwords for the Account, and any use of its Account. Ferant has no obligation to provide multiple accounts to Customer.

      2. Verification to Use Services. Customer must verify a Domain Email Address or a Domain Name to use the Services. If Customer does not have valid permission to use the Domain Email Address or does not own or control the Domain Name, then Ferant will have no obligation to provide Customer with the Services and may delete the Account without notice.

   4. Modifications.

      1. To the Services. Ferant may make commercially reasonable changes to the Services from time to time. Ferant will inform Customer if Ferant makes a material change to the Services that has a material impact on Customer's use of the Services and if Customer has subscribed with Ferant to be informed about such change.

      2. To the Agreement. Ferant may change the terms of this Agreement from time to time and will post any such changes at https://policies.ferant.io/terms/premier_terms.html. These changes will only take effect at the beginning of Customer’s next Order Term, at which time Customer’s continued use of the Services will constitute its acceptance of the changes.

      3. Discontinuation of Services. Ferant will notify Customer at least 12 months before discontinuing any Core Service (or associated material functionality) unless Ferant replaces such discontinued Core Service or functionality with a materially similar Core Service or functionality. Nothing in this Section 1.4(e) (Discontinuation of Services) limits Ferant's ability to make changes required to comply with applicable law, address a material security risk, or avoid a substantial economic or material technical burden. This Section 1.4(e) (Discontinuation of Services) does not apply to Other Services or to pre-general availability Services, offerings, or functionality.

2. Payment Terms.

   1. Usage Measurement and Billing Options. Ferant’s measurement tools will be used to determine Customer’s usage of the Services and any such determination by Ferant for the purpose of calculating Fees is final. Customer may elect one of the billing options below or any other option offered by Ferant when Customer places its order for the Services.

      1. Flexible Plan. If Customer selects this option, Customer will not be committed to purchase the Services for a pre-defined term, but will pay Fees based on its daily usage of the Services, billed monthly in arrears. Any partial day of Services usage will be rounded up to a full day of Services usage for the purposes of calculating Fees.

      2. Annual/Fixed-Term Plan. If Customer selects this option, Customer will be committed to purchasing the Services for one or more annual terms (as selected by Customer). Ferant will bill Customer according to the terms associated with Customer’s elections on the Order Form.

   2. Ferant may change its offering of billing options (including by limiting or ceasing to offer any billing option) upon 30 days’ notice to Customer and any such change will take effect at the beginning of Customer’s next Order Term. Billing options may not be available to all customers. Customer may pay for the Services using the payment options listed in Section 2.2 (Payment) below.

   3. Payment. All payments are due in the currency stated on the Order Form or invoice.

      1. Credit Card or Debit Card. If Customer is paying with a credit card, debit card, or other non-invoice form of payment payments are due at the end of the month during which Customer received the Services. For credit cards or debit cards, as applicable: (i) Ferant will issue an electronic bill for all applicable Fees when due, and (ii) these Fees are considered overdue 30 days after the end of the month during which Customer received the Services.

      2. Invoices. Payments for invoices are due 30 days after the invoice date (unless otherwise specified on the Order Form) and are considered overdue after such date.

      3. Other Forms of Payment. Customer may change its payment method to any other method that Ferant may enable in the Admin Console, subject to acceptance by Customer of any additional terms applicable to that payment method.

      4. Payment Information. Payments made via wire transfer must include the bank information provided by Ferant.

   4. Taxes.

      1. Customer is responsible for any Taxes, and will pay Ferant for the Services without any reduction for Taxes. If Ferant is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Ferant, unless Customer provides Ferant with a timely and valid tax exemption certificate in respect of those Taxes.

      2. Customer will provide Ferant with any applicable tax identification information that Ferant may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse Ferant for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.

   5. Payment Disputes. Any payment disputes must be submitted before the payment due date. If the parties determine that certain billing inaccuracies are attributable to Ferant, Ferant will not issue a corrected invoice, but will instead issue a credit memo specifying the incorrect amount in the affected invoice. If a disputed invoice has not yet been paid, Ferant will apply the credit memo amount to the disputed invoice and Customer will be responsible for paying the resulting net balance due on that invoice. Nothing in this Agreement obligates Ferant to extend credit to any party.

   6. Delinquent Payments; Suspension. Late payments may bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Ferant in collecting such delinquent amounts. Further, if Customer’s payment for the Services is overdue, Ferant may Suspend the Services.

   7. No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for Ferant to provide a purchase order number on Ferant's invoice (or otherwise).

   8. Price Revisions. Ferant may change the Prices at any time unless otherwise expressly agreed in an addendum or Order Form. Ferant will notify Customer at least 30 days in advance of any changes. Customer's pricing will change at the beginning of Customer’s next Order Term after the 30-day period.

3. Customer Obligations.

   1. Compliance. Customer will (a) ensure that Customer and its End Users' use of the Services complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the Services, and (c) promptly notify Ferant if Customer becomes aware of any unauthorized use of, or access to, the Services, Account, or Customer's password. Ferant reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Data.

   2. Privacy. Customer is responsible for any consents and notices required to permit (a) Customer's use and receipt of the Services, and (b) Ferant's accessing, storing, and processing of data provided by Customer (including Customer Data) under the Agreement.

   3. Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, or create a derivative work of the Services; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the Services (except to the extent such restriction is expressly prohibited by applicable law); (c) sell, resell, sublicense, transfer, or distribute any or all of the Services; or (d) access or use the Services (i) for High Risk Activities; (ii) in violation of the AUP; (iii) in a manner intended to avoid incurring Fees (including creating multiple Customer Accounts to simulate or act as a single Customer Account or to circumvent Service-specific usage limits or quotas); (iv) to engage in cryptocurrency mining without Ferant's prior written approval; (v) to place or receive emergency service calls; (vi) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (vii) in a manner that breaches, or causes the breach of, Export Control Laws; or (viii) to transmit, store, or process health information subject to United States HIPAA regulations, except as permitted by an executed HIPAA BAA.

   4. Additional Products. Ferant makes optional Additional Products available to Customer and its End Users. Customer can enable or disable Additional Products at any time through the Admin Console.

   5. Administration of Services. Customer may specify through the Admin Console one or more Administrators who will have the right to access Admin Accounts. Customer is responsible for (a) maintaining the confidentiality and security of the End User Accounts and associated passwords and (b) any use of the End User Accounts. Customer agrees that Ferant’s responsibilities do not extend to the internal management or administration of the Services for Customer or any End Users.

   6. Requesting Additional End User Accounts During Order Term. Customer may purchase additional End User Accounts during an Order Term by means of an additional Order Form or Reseller Order or by ordering via the Admin Console. Such additional End User Accounts will have a pro-rated term ending on the last day of the applicable Order Term.

4. Suspension.

   1. AUP Violations. If Ferant becomes aware that Customer's or any End User's use of the Services violates the AUP, Ferant will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of Ferant's request, then Ferant may Suspend all or part of Customer's use of the Services until the violation is corrected. Suspension of the Services may include removal or unsharing of content that violates the AUP.

   2. Other Suspension. Notwithstanding Section 4.1 (AUP Violations), Ferant may immediately Suspend all or part of Customer's use of the Services (including use of the underlying Account) if (a) Ferant reasonably believes Customer's or any End User's use of the Services could adversely impact the Services, other customers' or their end users' use of the Services, or the Ferant network or servers used to provide the Services; (b) there is suspected unauthorized third-party access to the Services; (c) Ferant reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions). Ferant will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer's request, Ferant will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.

5. Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features Within the Services.

   1. Intellectual Property Rights. Except as expressly stated in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other's content or any of the other's intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Ferant owns all Intellectual Property Rights in the Services.

   2. Protection of Customer Data. Ferant will only access or use Customer Data to provide the Services and TSS to Customer or as otherwise instructed by Customer. Without limiting the generality of the preceding sentence, Ferant will not process Customer Data for Advertising purposes or serve Advertising in the Services. Ferant has implemented and will maintain administrative, physical, and technical safeguards to protect Customer Data.

   3. Customer Feedback. At its option, Customer may provide feedback or suggestions about the Services to Ferant ("Feedback"). If Customer provides Feedback, then Ferant and its Affiliates may use that Feedback without restriction and without obligation to Customer.

   4. Using Brand Features Within the Services. Ferant will display within the Services only those Customer Brand Features that Customer authorizes by uploading them into the Services. Ferant will display those Customer Brand Features within designated areas of the web pages displaying the Services to Customer or its End Users. Customer may specify details of this use in the Admin Console. Ferant may also display Ferant Brand Features on such web pages to indicate that the Services are provided by Ferant.

6. FERPA. Ferant shall maintain Student Information for and on behalf of Customer – in accordance with the Family Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g(a)(4)(A)(ii), 1232g(b)(1) – for the primary purpose of providing assessment and research services pursuant to this Subscription. Ferant may itself, through its own employees or employees of contractors, use the Student Information to conduct assessment and research activities, including, but not limited to, longitudinal studies, alignment studies, and norming studies for the benefit of Customer and/or for the collective benefit of multiple Customers. Personally identifiable information (“PII”) derived from Student Information provided to Ferant may be disclosed only to Ferant employees or employees of contractors who have a legitimate educational interest in maintaining, organizing, or analyzing the data for uses authorized in this Subscription. In its annual notice to parents 1 under FERPA, Customer shall indicate that (a) Student Information shall be maintained in part on behalf of Customer by Ferant and its contractors in order to provide assessment and research services to Customer; (b) Ferant employees and employees of Ferant’s contractors shall be deemed school officials for the purpose of access to PII derived from Student Information only if they have a legitimate interest in maintaining, organizing, or analyzing the data for assessment and research purposes under this Subscription; and (c) PII derived from student education records and maintained by Ferant shall not be further disclosed to third parties, except as allowed by FERPA and authorized by Customer or by this Subscription agreement. Customer is responsible for any notices to parents required under FERPA and for providing parents/guardians with an opportunity to inspect and challenge the contents of the student records in question.

7. Technical Support Services. Subject to payment of applicable Fees, Ferant will provide TSS to Customer during the Term in accordance with the TSS Guidelines. Certain TSS levels include a minimum recurring Fee as described at https://policies.ferant.io/terms/tssg.html. If Customer downgrades its TSS level during any calendar month, Ferant may continue to provide TSS at the same level and for the same TSS Fees as applied before the downgrade for the remainder of that month.

8. Confidential Information.

   1. Obligations. The recipient will only use the disclosing party's Confidential Information to exercise the recipient’s rights and fulfill its obligations under the Agreement, and will use reasonable care to protect against the disclosure of the disclosing party's Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors ("Delegates") who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.

   2. Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient or its Affiliate uses commercially reasonable efforts to (a) promptly notify the other party before any such disclosure of its Confidential Information, and (b) comply with the other party's reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in a violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual.

9. Term and Termination.

   1. Agreement Term. The term of this Agreement (the "Term") will begin on the Effective Date and continue until the Agreement is terminated or not renewed as stated in this Section 9 (Term and Termination).

   2. Renewal.

      1. With a Flexible Plan. Order Terms for the Flexible Plan are monthly. At the end of each month, the Order Term will automatically renew for another month, unless cancelled by Customer via the Admin Console.

      2. With an Annual/Fixed-Term Plan. At the end of each Order Term for an Annual/Fixed-Term Plan, the Services will renew consistent with Customer’s elections in the Order Form or Admin Console.

      3. Generally. Customer may use the Admin Console to adjust the number of End User Accounts to be renewed. Customer will continue to pay Ferant the then-current Fees for each renewed End User Account unless Customer and Ferant mutually agree otherwise. If either party does not want the Services to renew, then it must notify the other party to this effect at least 15 days before the end of the then-current Order Term, and this notice of non-renewal will take effect at the end of the then-current Order Term.

   3. Termination for Breach. To the extent permitted by applicable law, either party may terminate this Agreement immediately on written notice if (a) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach, or (b) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.

   4. Termination for Convenience. Customer may stop using the Services at any time. Subject to Customer fulfilling all its financial commitments under an Order Form or otherwise under this Agreement (including payment of all Fees for the Order Term), Customer may also terminate this Agreement for its convenience at any time on prior written notice.

   5. Termination Due to Applicable Law; Violation of Laws. Ferant may terminate this Agreement and/or any applicable Order Form immediately on written notice if Ferant reasonably believes that (a) continued provision of any Service used by Customer would violate applicable law(s) or (b) Customer has violated or caused Ferant to violate any Anti-Bribery Laws or Export Control Laws.

   6. Effect of Termination or Non-Renewal. If the Agreement is terminated or not renewed, then (a) all rights and access to the Services will cease (including access to Customer Data), unless otherwise described in this Agreement, and (b) all Fees owed by Customer to Ferant are immediately due upon Customer’s receipt of the final electronic bill or as stated in the final invoice.

   7. No Refunds. Unless expressly stated otherwise in this Agreement, termination or non renewal under any section of this Agreement will not oblige Ferant to refund any Fees.

10. Publicity. Customer may state publicly that it is a Ferant customer and display Ferant Brand Features in accordance with the Trademark Guidelines. Ferant may use Customer's name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in the Agreement. Any use of a party's Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.

11. Representations and Warranties. Each party represents and warrants that (a) it has full power and authority to enter into the Agreement, and (b) it will comply with all laws applicable to its provision, receipt, or use of the Services, as applicable.

12. Disclaimer. Except as expressly provided for in the Agreement, Ferant does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, title, non-infringement, or error-free or uninterrupted use of the Services and (b) any representations about content or information accessible through the Services.

13. Limitation of Liability.

    1. Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 13.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to the Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.

    2. Limitation on Amount of Liability. Each party's total aggregate Liability for damages arising out of or relating to the Agreement is limited to the Fees Customer paid during the 12 month period before the event giving rise to Liability.

    3. Unlimited Liabilities. Nothing in the Agreement excludes or limits either party's Liability for:

       1. its fraud or fraudulent misrepresentation;
       2. its obligations under Section 14 (Indemnification);
       3. its infringement of the other party's Intellectual Property Rights;
       4. its payment obligations under the Agreement; or
       5. matters for which liability cannot be excluded or limited under applicable law.

14. Indemnification.

    1. Ferant Indemnification Obligations. Ferant will defend Customer and its Affiliates using the Services under Customer’s Account and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that any Service or any Ferant Brand Feature, in each case used in accordance with the Agreement, infringes the third party's Intellectual Property Rights.

    2. Customer Indemnification Obligations. Customer will defend Ferant and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Customer Data or Customer Brand Features or (b) Customer's or an End User's use of the Services in breach of the AUP or Section 3.3 (Restrictions).

    3. Exclusions. Sections 14.1 (Ferant Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party's breach of the Agreement or (b) a combination of the indemnifying party's technology or Brand Features with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.

    4. Conditions. Sections 14.1 (Ferant Indemnification Obligations) and 14.2 (Customer Indemnification Obligations) are conditioned on the following:

       1. Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 14.4.1 prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party's obligations under Section 14.1 (Ferant Indemnification Obligations) or 14.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.

       2. Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party's prior written consent, not to be unreasonably withheld, conditioned, or delayed.

    5. Remedies.

       1. If Ferant reasonably believes the Services might infringe a third party's Intellectual Property Rights, then Ferant may, at its sole option and expense (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.

       2. (b) If Ferant does not believe the remedies in Section 14.5.1 are commercially reasonable, then Ferant may Suspend or terminate Customer's use of the impacted Services. If Ferant terminates the impacted Services, then Ferant will provide a pro-rata refund of any unearned Fees actually paid by Customer applicable to the period following termination of such Services.

    6. Sole Rights and Obligations. Without affecting any other termination rights of either party, this Section 14 (Indemnification) states the parties' sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 14 (Indemnification).

15. Miscellaneous.

    1. Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to Ferant must be sent to legal-notices@ferant.io. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.

    2. Emails. The parties may use emails to satisfy written approval and consent requirements under the Agreement.

    3. Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, and (b) the assigning party has notified the other party of the assignment. Any other attempt to assign is void. If Customer assigns this Agreement to an Affiliate in another jurisdiction such that there is a change in the Ferant contracting entity as defined at https://policies.ferant.io/terms/ferant-entity: this Agreement is automatically assigned to the new Ferant contracting entity.

    4. Change of Control. If a party experiences a change of Control other than as part of an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), that party will give written notice to the other party within 30 days after the change of Control.

    5. Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.

    6. Subcontracting. Ferant may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

    7. No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.

    8. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

    9. Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

    10. No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

    11. Equitable Relief. Nothing in this Agreement will limit either party's ability to seek equitable relief.

    12. U.S. Governing Law.

        1. For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.

        2. For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF CALIFORNIA (EXCLUDING CALIFORNIA'S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

        3. For All Other Entities. If Customer is any entity not identified in Section 15.12.1 (U.S. Governing Law for U.S. City, County, and State Government Entities) or 15.12.2 (U.S. Governing Law for Federal Government Entities), then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE'S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

    13. Amendments. Except as stated in Section 1.4.2, modifications to the Agreement any amendment to this Agreement after the Effective Date must be in writing, signed by both parties, and expressly state that it is amending this Agreement. For clarity, Ferant’s provision of an updated URL in place of any URL stated in this Agreement will not constitute an amendment to or modification of the terms of the Agreement.

    14. Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights; Protection of Customer Data; Feedback; Using Brand Features within the Services), Section 8 (Confidential Information), Section 9.6 (Effect of Termination or Non-Renewal), Section 12 (Disclaimer), Section 13 (Limitation of Liability), Section 14 (Indemnification), and Section 15 (Miscellaneous).

    15. Entire Agreement. This Agreement sets out all terms agreed between the parties and terminates and supersedes any and all other agreements between the parties relating to its subject matter, including any prior versions of this Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly stated in this Agreement. After the Effective Date, Ferant may provide an updated URL in place of any URL in this Agreement.

    16. Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order (of decreasing precedence): the Order Form, the remainder of the Agreement.

    17. Headers. Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

    18. Conflicting Languages. If this Agreement is translated into any language other than English, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.

    19. U.S. Federal Agency Users. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.

    20. Definitions.

        1. "Account" means Customer's Ferant account credentials and correlating access to the Services under this Agreement.

        2. "Additional Products" means products, services and applications that are not part of the Services but that may be accessible for use in conjunction with the Services.

        3. "Admin Account" means a type of End User Account that Customer (or Reseller, if applicable) may use to administer the Services.

        4. "Admin Console" means the online console(s) or dashboard provided by Ferant to Customer for administering the Services.

        5. "Administrators" mean the Customer-designated personnel who administer the Services to End Users on Customer’s behalf, and have the ability to access Customer Data and End User Accounts. Such access includes the ability to access, monitor, use, modify, withhold, or disclose any data available to End Users associated with their End User Accounts.

        6. "Advertising" means online advertisements displayed by Ferant to End Users, excluding any advertisements Customer expressly chooses to have Ferant or any of its Affiliates display in connection with the Services under a separate agreement (for example, Ferant AdSense advertisements implemented by Customer on a website created by Customer using the "Ferant Sites" functionality within the Services).

        7. "Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.

        8. "Anti-Bribery Laws" means all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties.

        9. "AUP" means the then-current acceptable use policy for the Services stated at https://policies.ferant.io/terms/use_policy.html.

        10. "BAA" or "Business Associate Agreement" is an amendment to the Agreement covering the handling of Protected Health Information (as defined in HIPAA).

        11. "Brand Features" means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

        12. "Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer's Confidential Information.

        13. "Control" means control of greater than 50 percent of the voting rights or equity interests of a party.

        14. "Customer Data" means data submitted, stored, sent or received via the Services by Customer or its End Users.

        15. "Domain Email Address" means the email address on the Domain Name for use in connection with the Services.

        16. "Domain Name" means the domain name specified in the Order Form or Reseller Order to be used in connection with the Services.

        17. "End Users" means the individuals who are permitted by Customer to use the Services and managed by an Administrator. For clarity, End Users may include employees of Customer Affiliates and other third parties.

        18. "End User Account" means a Ferant-hosted account established by Customer through the Services in order for an End User to use the Services.

        19. "Export Control Laws" means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.

        20. "Fees" means (a) the product of the amount of the Services used or ordered by Customer multiplied by the Prices or (b) the applicable fees for TSS, plus any applicable Taxes.

        21. "High Risk Activities" means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).

        22. "HIPAA" means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.

        23. "including" means including but not limited to.

        24. "Indemnified Liabilities" means any (i) settlement amounts approved by the indemnifying party and (ii) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.

        25. "Intellectual Property Rights" means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.

        26. "Legal Process" means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.

        27. "Liability" means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.

        28. "Notification Email Address" means the email address(es) designated by Customer in the Admin Console.

        29. "Order Form" means an order form executed by Customer, or an order placed by Customer via a Ferant website, in either case specifying the Services Ferant will provide to Customer under the Agreement.

        30. "Order Term" means the period of time starting on the Services Start Date or the renewal date (as applicable) and continuing for the period indicated on the Order Form unless terminated in accordance with this Agreement.

        31. "Prices" means the then-current applicable prices for the Services described at https://ferant.io/pricing.html (incorporated into the Agreement by this reference), unless otherwise agreed in an addendum or Order Form. Prices do not include Taxes.

        32. "Prices" means the then-current applicable prices for the Services described at https://ferant.io/pricing.html (incorporated into the Agreement by this reference), unless otherwise agreed in an addendum or Order Form. Prices do not include Taxes.

        33. "Services Start Date" means either the start date stated in the Order Form or, if none is specified in the Order Form, the date Ferant makes the Services available to Customer.

        34. "Suspend" or "Suspension" means disabling access to or use of the Services or components of the Services.

        35. "Taxes" means all government-imposed taxes, except for taxes based on Ferant's net income, net worth, asset value, property value, or employment.

        36. "Term" has the meaning stated in Section 9.1 (Agreement Term) of this Agreement.

        37. "Third-Party Legal Proceeding" means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).

        38. "Third-Party Offerings" means third-party services, software, products, and other offerings that are not incorporated into the Services.

        39. "Trademark Guidelines" means Ferant's then-current Guidelines for Third Party Use of Ferant Brand Features at https://brand.ferant.io/permissions/guidelines.html.

        40. "TSS" means the then-current Ferant technical support service.

        41. "TSS Guidelines" means Ferant's then-current guidelines for technical support services, as stated at https://policies.ferant.io/terms/tssg.html.