These Process Health Terms of Service constitute a binding agreement between Augury Inc. (or the Augury affiliate identified on the Enrollment Form) (“Augury”) and the customer identified on the Enrollment Form (“Customer”) and apply to Customer’s use of Augury’s proprietary process health platform and services (collectively, the “Services”) as further described in one or more ordering documents signed by the parties (each, an “Enrollment Form”).
BY EXECUTING AN ENROLLMENT FORM OR OTHER AGREEMENT REFERENCING THESE TERMS OF SERVICE, OR BY ACCESSING OR USING THE SERVICES, CUSTOMER IS ACKNOWLEDGING THAT IT UNDERSTANDS AND AGREES TO BE BOUND BY THESE TERMS OF SERVICE, AND REPRESENTS AND WARRANTS TO AUGURY THAT THE INDIVIDUAL SUBMITTING THE ENROLLMENT FORM HAS THE LEGAL AUTHORITY TO BIND CUSTOMER. CUSTOMER’S RIGHT TO ACCESS AND USE THE SERVICES IS EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS OF SERVICES.
These Terms of Service and all Enrollment Forms (collectively referred to as the “Agreement”) represent the parties’ entire understanding regarding the Services, and expressly supersedes and replaces any prior or contemporaneous understandings, agreements and representations, oral or written. Any different or additional terms or conditions included in any other documents, orders, specifications, requirements or communications issued or generated by Customer that are inconsistent with or in addition to the Agreement are hereby rejected. Notwithstanding the foregoing, if Customer and Augury have entered into a master agreement governing Customer’s use of the Services, then these Terms of Service are without prejudice to the terms and conditions of such master agreement.
1.1 Grant of Rights to Use the Services. Subject to Customer’s compliance with the terms and conditions of the Agreement, including, without limitation, the timely payment of all fees set forth in the Enrollment Form, Augury grants Customer, during the applicable Subscription Term, a limited, non-exclusive, non-transferable right to permit its Authorized Users to access and use the Services, in accordance with the end-user documentation (as generally made available by Augury to its customers) and any applicable law, and solely for the purpose of increasing throughput and preventing production losses in quality and yield in Customer’s production processes. As used herein, “Authorized Uses” means Customer’s administrators identified through a unique login and individuals authorized by Customer to use the Services (subject to any limitations set forth in the Enrollment Form on the number of individuals permitted to use the Services).
1.2 Account Set Up. To access and use the Services, Customer must sign up for an account (the “Account”). During the Account setup and registration process, Customer may be required to provide certain credentials for each individual Authorized User, including selecting a username and password (the “Login Information“). The following rules govern the security of Customer’s Account and Login Information. For the purposes of this Agreement, references to Account and Login Information include any account and account information, including user names, passwords or security questions that are used to access the Services:
a. Customer shall not share its Account or Login Information, nor let anyone else access its Account or do anything else that might jeopardize the security of the Account;
b. In the event Customer becomes aware of or reasonably suspects any breach of security, including, without limitation any loss, theft, or unauthorized disclosure of its Login Information or unauthorized access to its Account, Customer must immediately notify Augury and modify its Login Information;
c. Customer is solely responsible for maintaining the confidentiality of the Login Information, and will be responsible for all uses of its Login Information, whether or not authorized by it; and
d. Customer is responsible to monitor its Account and will be responsible for all activities that occur under or through its Account. Customer therefore acknowledges that its Account may be terminated if anyone uses it to engage in any activity that violates the Agreement or is otherwise improper or illegal.
1.3 Changes to the Services. Augury may update or modify the Services from time to time. If, in Augury’s reasonable judgment, any such modification to the Services materially reduces the Service functionality, Augury will use commercially reasonable efforts to inform Customer of the change via the e-mail address associated with Customer’s Account no less than fourteen (14) days prior to the implementation of such change. The terms of the Agreement will apply to any updates and modifications that Augury may make available to Customer.
2.1 Definition. The term “Customer Data” means any and all Customer proprietary data that is uploaded to the Services by Customer or its Authorized Users or otherwise submitted to Augury by Customer in connection with the Services, including files created by Customer with the use of the Services, as well as Login Information and other information provided during the Account setup.
2.2 Submission of Customer Data. Customer will be solely responsible to collect and upload onto the platform any data, files, materials and other Customer Data, as per Augury’s specifications, as required to the enable Augury to provide the Services and to enable Customer to make use of the Services. Networking, historian data capture and data extraction are Customer’s responsibilities and at Customer’s cost. Customer acknowledges that accuracy of the Services’ Automated Root Cause Analysis and Alerts heavily depend on (i) the accuracy of the data provided by Customer, (ii) the amount of data, and (iii) the amount of fault examples provided. Augury will have no obligation to monitor Customer Data for accuracy or completeness or for the potential violation of any third party rights, all of which are the sole responsibility of Customer.
2.4 Representations. Customer represents and warrants to Augury that (a) Customer possesses all rights required to lawfully upload the Customer Data onto the platform and share the Customer Data with Augury and otherwise make use of the Services with respect to the Customer Data, and (b) the display, access to and/or use of the Customer Data for the purpose of the provision of the Services does not and will not infringe, misappropriate or otherwise violate any intellectual property or other proprietary rights of any third parties. Without derogating from any of Augury’s rights and remedies under this Agreement and/or under law, Augury will be entitled, at its sole discretion, to immediately suspend or discontinue the Services or any part thereof in the event of any alleged infringement, misappropriation or violation of any rights of any third parties in connection with Customer Data. Customer hereby agrees to indemnify and hold harmless Augury, its affiliates and its and their officers, directors, employees and agents, from and against any and all liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees and court costs) incurred by them with respect to any third-party claim, action, suit or proceeding brought by third parties arising out of breach of the foregoing warranties.2.5 Retention of Customer Data. Data Augury may remove or delete any Customer Data or any other data relating to the Customer, within one month after the termination of the applicable Enrollment Form. In addition, for a period of thirty (30) days following termination, Customer will be provided with access to, and an option to obtain a copy of, the Customer Data and any Insights presented to Customer through the Services.
3.1 Services Availability. Augury will use commercially reasonable efforts to ensure that during the Subscription Term the Services are accessible and functional on a continuous basis, twenty-four (24) hours per day, seven (7) days per week, with the exception of scheduled maintenance periods. The foregoing notwithstanding, Customer acknowledges and agrees that the Services may be inaccessible or inoperable at any time and for any reason, including, without limitation, due to equipment malfunctions, unscheduled maintenance or repairs, or causes that are beyond Augury’s reasonable control or not reasonably foreseeable by Augury, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion and other failures. If the Services become inaccessible or are not functional, other than due to scheduled maintenance, Augury shall have qualified personnel respond and use commercially reasonable efforts to remedy such unavailability or failure of functionality as soon as reasonably possible.3.2 Customer Responsibilities. Customer will be responsible to ensure that its and its Authorized Users’ computers, operating systems, computer networks and network connections, telecommunications facilities and mobile devices meet all the necessary technical specifications to enable Customer and its Authorized Users to access and use the Services. Augury does not provide Customer with the equipment to access and/or use the Services. Customer is responsible for all fees charged by third parties related to its access and use of the Services (e.g., charges by Internet service providers or air time charges).
4.1 Fees. In consideration of the Services provided by Augury under the Agreement, Customer shall pay Augury the fees set forth in the Enrollment Form, in accordance with the payment terms set forth therein. If the Enrollment Form provides that Customer may use the Services at no charge for a limited trial period, then Customer will not be billed for the subscription fees for such period. Customer may add additional concurrent Authorized Users to Customer’s Account by requesting such additional users from Augury and paying the applicable additional subscription fees.
4.2 Billing. Unless the Enrollment Form expressly states otherwise, billing for the first year of the Subscription Term for the Services will commence upon the Subscription Start Date and continue on an annual recurring basis thereafter during the Subscription Term. Unless the Enrollment Form expressly states otherwise, Customer shall pay Augury the full amount of the annual subscription fees within thirty (30) days of the applicable invoice date. All payments to Augury will be made in U.S, unless otherwise set forth in the Enrollment Form. dollars. Such amounts shall be paid by wire transfer to Augury’s account in accordance with written instructions provided by Augury or as detailed in the Enrollment Form. Overdue amounts will bear interest at a monthly rate of 1.5%, compounded daily. All payments are non-refundable. In addition, no amounts may be set off by Customer for any reason whatsoever. Invoices will be issued by Augury or an Augury affiliate, as determined by Augury.
4.3 Taxes. The fees set out in the Enrollment Form exclude, and Customer shall be responsible for and pay, all sales, use, value added and similar taxes as required by applicable law that are associated with the Agreement or its receipt of the Services, except for taxes based on Augury’s net income. Customer shall make payment of all amounts due to Augury without withholding or deduction of any taxes or other government charges, except as required by law. If Customer is required by law to make any withholding or deduction from payments due to Augury under this Agreement, then (a) the parties will cooperate in obtaining exemptions from withholding tax, and (b) if the withholding tax cannot be exempted, Customer will pay such taxes to the applicable tax authorities and will increase the payments made to Augury to make up for the withheld or deducted amounts such that the payments made to Augury will be as if Customer was not required to make any such withholding or deduction.
5.1 Subscription Term and Renewal. This Agreement takes effect upon execution of the Enrollment Form and, unless terminated earlier as set forth in this Section, will continue in effect until expiration or termination of the Subscription Term in accordance with this Section 5. The initial subscription period to the Services will commence upon the subscription start date set forth in the Enrollment Form (the “Subscription Start Date”) and continue for the period set forth in the Enrollment Form (the “Initial Subscription Term”). Thereafter, unless otherwise set forth in the Enrollment Form, the Initial Subscription Term will automatically renew for subsequent periods of the same duration as the Initial Subscription Term (each, a “Renewal Subscription Term,” and collectively with the Initial Subscription Term, the “Subscription Term”), unless either party provides the other with written notice of its intent not to renew at least ninety (90) days prior to the end of the Initial Subscription Term or the then-current Renewal Subscription Term.
5.2 Termination for Cause. Each party may terminate this Agreement if: (a) the other party has materially breached this Agreement (including, without limitation, non-payment of any fees due under this Agreement) and failed to cure such breach within thirty (30) days after receiving written notice from the non-breaching party describing the nature of the breach; or (b) the other party is adjudicated bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party, or any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
5.3 Effect of Termination. Upon expiration or termination of the Agreement for any reason: (a) Customer shall immediately cease using the Services; (b) all payments due hereunder by Customer will become immediately due and payable; and (c) each party shall cease using and shall either destroy or return to the other party any confidential information of the other party in such party’s possession. Sections 2.5 (Retention of Customer Data), 5.3 (Effect of Termination), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Warranty Disclaimer), 9 (Limitation of Liability) and 10 (Miscellaneous) will survive expiration or termination of this Agreement for any reason.
6.1 Augury Technology. Customer acknowledges and agrees that while Customer will retain ownership of Customer Data and Insights, Augury exclusively owns and will retain all right, title and interest, including all intellectual property rights, in and to the Services, any underlying software, algorithms and other technology, and all methods, processes, methodologies and know-how of any kind employed by Augury in providing the Services, including any updates, enhancements, improvements and derivatives to or of any of the foregoing (collectively, “Augury Technology”). Customer agrees that Augury may collect general, aggregated, non-identifiable information (personally or which otherwise directly identifies the Customer) regarding data about Customer’s usage of the Services, and use such information for statistical purposes and to improve its products. Customer further agrees that Augury will be free to use any feedback or input provided to Augury by Customer in relation to the Services.
6.2 Rights in Customer Data. The Customer Data and the unique recommendation and suggestions made available to Customer through the Services (collectively, “Insights”) are and will remain the sole and exclusive property of Customer. Customer hereby grants Augury and its affiliates: (a) a non-exclusive, worldwide, royalty-free license, during the applicable Subscription Term, to store, host, process, display and use the Customer Data and Insights as necessary or useful for provision of the Services in accordance with the Agreement, and (b) a perpetual license to use Customer Data, in an anonymized fashion, for Augury’s research and development activities, including to further develop and improve Augury’s process health platform and other offerings.
6.3 Restrictions. Customer will not, and will ensure that Authorized Users do not: (a) decipher, decompile, disassemble, attempt to find the underlying code of, or reverse-engineer, any of the software, algorithms, hardware or technology included in or used to provide the Services; (b) copy, modify, frame, or create derivative works of the Services or any Augury Technology; (c) remove or alter any trademark, product names, logos, or any other proprietary notices, legends, symbols or labels included in the Services; (d) except as expressly permitted in the Agreement, license, sublicense, sell, resell, transfer, assign, distribute or otherwise make available to any third party any part of the Services; (e) publish or otherwise disclose to third parties the results of benchmark tests of the Services or other Augury Technology, without Augury’s prior written consent; or (f) access or use any part of the Services or any Augury Technology in order to build a competitive product or service.
7.1 Augury Confidential Information. Customer acknowledges that all nonpublic technical, business or other information, documentation and materials delivered to or obtained by Customer in connection with use of the Services or otherwise the Agreement (including, without limitation, any Augury Technology and any feedback, software, trade secrets and specifications relating to the Services and/or Augury Technology) constitute Augury’s confidential information (“Augury Confidential Information”). Customer hereby agrees, during and after the Subscription Term: (a) to hold and maintain in strict confidence all Augury Confidential Information, and to use at least the same degree of care to protect all Augury Confidential Information as it uses to protect its own confidential information of like importance (and in no event with less than reasonable care); (b) not to use any Confidential Information except as expressly permitted under this Agreement, and (c) not to disclose Augury Confidential Information to any person (including third party contractors), except to those of its employees who have a need-to-know for the purposes of this Agreement, without express written authorization from Augury on a case-by-case basis.
7.2 Customer Data. Augury acknowledges that Customer Data constitutes Customer’s confidential information. Augury hereby agrees, during and after the Term: (a) to hold and maintain in strict confidence all Customer Data, and to use at least the same degree of care to protect the Customer Data as it uses to protect its own confidential information of like importance (and in no event with less than reasonable care); (b) not to use any Customer Data except as expressly permitted under this Agreement, and (c) not to disclose Customer Data to any person (including third party contractors), except on a need-to-know basis for the purposes of this Agreement, without express written authorization from Customer on a case-by-case basis.
Customer acknowledges and agrees that (a) Augury does not warrant that the Services or the Insights are error-free or with no vulnerabilities, (b) any Insights must be independently verified by a trained professional, and (c) the Services are intended only to assist Customer in operating its own business and Customer is solely responsible (and Augury assumes no responsibility and will have no liability of any kind) for the decisions that Customer may make based on the Services or the Insights (or lack thereof) or any effects on Customer’s business that may result from Customer’s use of the Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY WARRANTIES EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE SERVICES, INSIGHTS AND ANY INFORMATION PROVIDED UNDER THE AGREEMENT ARE PROVIDED “AS IS” AND AUGURY AND ITS AFFILIATES HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO LIABILITY ARISING UNDER SECTION 6.3 (RESTRICTIONS) OR 7 (CONFIDENTIALITY), (A) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF USE OR DATA, LOSS OR INTERRUPTION OF BUSINESS OR PRODUCTION, OR FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, AND/OR CONSEQUENTIAL DAMAGES OR ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR OTHERWISE THE SERVICES OR AUGURY SOLUTION, AUGURY TECHNOLOGY OR INSIGHTS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT WILL AUGURY’S CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, OR OTHERWISE THE SERVICES, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO AUGURY FOR USE OF THE AUGURY SOLUTION DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
10.1 Publicity. Neither party may use the name or logo of the other party in any media release, public announcement or similar disclosure unless such use was approved in writing (including via email) by the other party prior thereto. Notwithstanding the foregoing, Augury may use Customer’s name and logo in its customer lists which may be posted on Augury’s website or other marketing materials, provided that such postings will at all times comply with any trademark usage guidelines provided by Customer to Augury and will promptly be removed following Customer’s request to do so.
10.2 Governing Law; Jurisdiction; Injunctive Relief. This Agreement will be governed by the laws of the State of New York, exclusive of its choice of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The competent courts in New York, NY will have exclusive jurisdiction to hear any disputes arising under this Agreement. Notwithstanding the foregoing, in the event a breach or threatened breach of this Agreement that could result in irreparable harm to a party for which money damages would be an inadequate remedy, including, without limitation, breaches of Sections 6.3 (Restrictions) or 7 (Confidentiality), the non-breaching party will be entitled to seek immediate equitable and other provisional relief in any court of competent jurisdiction, in addition to any other remedies available at law or in equity and without prejudice to any such other remedies.
10.3 Relationship of the Parties. The parties hereto are and intend to remain independent contractors. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between Customer and Augury or authorizes Customer to act on behalf of Augury.
10.4 Force Majeure. Augury will not be liable to Customer due to any delay in provision of the Services or any other non-performance under this Agreement caused by circumstances beyond the reasonable control of Augury, including, without limitation, fire, floods, earthquakes and other acts of nature, acts of civil or military authority, epidemics and pandemics, lockdowns, quarantine restrictions or other government-ordered restraints, regulation or required approvals of government bodies, strikes, riots, sabotage or delays in transportation (“Force Majeure”). In the event Augury’s performance is affect by a Force Majeure event, Augury will, as soon as practically possible, give written notice to Customer specifying the Force Majeure event and use commercially reasonable efforts to resume performance of its obligations.
10.5 Assignment. Neither party may assign this Agreement, in whole or in part, to any third party, without the prior written consent of the other party. Notwithstanding the foregoing, Augury will have the right, without the prior written consent of Customer, to assign this Agreement (or its rights or obligations under this Agreement) to (a) an affiliate of Augury, or (b) an unrelated entity in connection with a merger or an acquisition or sale of all or substantially all of its assets with or to such other entity. Any assignment in violation of the foregoing will be void.
10.6 Severability. Should one or more of the provisions of this Agreement become void or unenforceable as a matter of law, then the remaining provisions of this Agreement will remain in full force and effect, and the parties will use their commercially reasonable efforts to substitute the invalid or unenforceable provision with a valid and enforceable provision which most closely achieves the effect of the original provision.
10.7 Waivers and Amendments. The failure of either party to assert a right under this Agreement or any Enrollment Form will not constitute a waiver of that right or excuse a similar subsequent failure to perform any such term or condition by the other party. No waiver will be effective unless it has been given in writing and signed by the party giving such waiver. No provision of this Agreement or any Enrollment Form may be amended or modified other than by a written document signed by authorized representatives of each party.
10.8 Notices. All notices given pursuant to this Agreement must be in writing and will be deemed to have been duly given when: hand delivered, sent by email (with written confirmation of receipt), or when received by the addressee (with written confirmation of receipt) in each case to the appropriate address set forth in the first paragraph of this Agreement or in the applicable Enrollment Form (or to such other email addresses or addresses as a party may designate by notice). Any notice Augury may be required to provide to Customer under this Agreement may also be provided to the email address provided by Customer upon registration for the Services.
10.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Version Update: May 2023