These Terms of Service govern your access and use of RoboHead Services and form a legally binding agreement between you (“Client”, “You” or “Your”) and Aquent LLC. (“Aquent”,  “Our”, “We” or “Us”). These Terms apply to and are incorporated into any Proposal or Ordering Document between You and Aquent, (collectively the “Agreement”) regardless  if expressly referenced, unless agreed otherwise in writing. 

Aquent may modify these Terms at any time by posting a revised version on this website or otherwise providing notice to You. By continuing to use the Services after the effective date of any modifications to these Terms, You agree to be bound by the modified terms.

These Terms of Service (“Terms”) govern your access and use of RoboHead Services and form a legally binding agreement between you (“Client”, “You” or “Your”) and Aquent LLC. (“Aquent”,  “Our”, “We” or “Us”). These Terms apply to and are incorporated into any Implementation Proposal or Ordering Document between You and Aquent, (collectively the “Agreement”) regardless  if expressly referenced, unless agreed otherwise in writing. 

Aquent may modify these Terms at any time by posting a revised version on this website or otherwise providing notice to You. By continuing to use the Services after the effective date of any modifications to these Terms, You agree to be bound by the modified terms. Aquent may modify these Terms by mutual agreement as may be written on the Implementation Proposal. 

“Intellectual Property Rights” means all patents, patent registration or applications, business processes, data rights, copyrights, trade names, trademarks, trade secrets, know-how, mask works, or any other intellectual property rights, whether registered or unregistered, arising, or enforceable under United States law or the law of any other jurisdiction.

“Personal Data” means any data that is “personal information,” “personal data,” “personally identifiable information,” “nonpublic personal data,” or similar terms as defined by and regulated by Applicable Laws.“Services” means, collectively, the specific products, plans and/or services ordered by you or that Aquent has authorized you to use and access.  

By using and accessing Services You agree to these terms and conditions. Subject to and conditioned on Your and Your authorized users’ compliance with the terms and conditions of this Agreement, We hereby grant You a non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the Term, solely for use by authorized users in accordance with the terms and conditions herein. Such use is limited to Your internal business purposes.

Services are licensed to use, not sold. The license to use terminates upon termination of this Agreement. No code is delivered or transferred. Any rights not specifically granted are reserved.

Ownership

All right, title, and interest in and to the Services, including all Intellectual Property Rights therein, are and will remain with Aquent and, with respect to third-party materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the third-party materials. All other rights in and to the Services and third-party materials are expressly reserved by Aquent and the respective third-party licensors.

Copyright

Title and copyrights in and to the Services, including any images, “applets,” photographs, animations, video, audio, music, and text incorporated into or a part of the Services, and all accompanying printed and electronic materials, together with any copies You are permitted to make herein, are owned by or licensed to Aquent and are protected by United States copyright laws and international treaty provisions. Therefore, You must treat the Services like any other copyrighted material (e.g., a book or musical recording). You are permitted to make copies of the printed training materials accompanying the Services strictly for use as reference guides for authorized users using the Service in an authorized manner for internal business purposes. All such copies shall contain the copyright and other notices of Aquent or its licensors. Any other copying of the printed materials accompanying the Services is prohibited without express written permission from Aquent or its licensors. 

Limitations on the Use of the Services

You shall not use the Services (a) for any illegal purpose, (b) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (c) to post or transmit any sexually explicit, hateful, vulgar, threatening, abusive, harassing, defamatory, racially, ethnically, or otherwise objectionable material. You agree to abide by any and all local, country, and international export rules and regulations governing Your use of the Services. 

You shall not use the Services and Documentation except as expressly permitted by the Agreement.  You shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the Services or the Documentation, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or the Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (d) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary notices from the Services or the Documentation; (e) use the Services, or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any entity, or that violates any applicable law; (f) bypass or breach any security device, or protection used by the Services or Aquent or access or use Services other than by an authorized user through the use of their own then-valid access credentials or (g) otherwise access or use the Services or Aquent beyond the scope of the authorization granted under this section.

You acknowledge that You are solely responsible for the use of and the results obtained from the Services. You acknowledge that it is Your sole responsibility to understand and comply with any and all applicable laws regarding the use of the Services in Your place or places of business, regardless of country or jurisdiction.

Confidentiality.

Each party hereto (each, a “Recipient”) shall protect and keep confidential all nonpublic information (“Confidential Information”) disclosed to Recipient by the other party (each, a “Discloser”) and shall not, except as may be authorized by Discloser in writing, use or disclose any such information during or after the provision of Services under this Agreement. Recipient will protect the confidentiality of Confidential Information with the same degree of care as Recipient uses for its own similar information, but in no event with less than a reasonable degree of care. Confidential Information also includes the terms and provisions of the Agreement and any Statement of Work. Confidential Information shall not include any information that (i) was lawfully in Recipient’s possession before receipt from Discloser; (ii) is or becomes available to the public through no fault of Recipient; (iii) is lawfully disclosed to Recipient by a third party without restriction on disclosure; (iv) is independently developed by Recipient without using Confidential Information; or (v) is required to be disclosed as a matter of law upon prior written notice to Discloser. The confidentiality obligations of Aquent and Client under this section shall survive any termination or expiration of this Agreement and continue for a period of three (3) years after such termination or expiration.

Compliance with Privacy Laws.

You shall use the Services in accordance with all applicable law, including all applicable privacy laws. Without limiting the generality of the foregoing, You represent and warrant that: (a) all Personal Data provided or otherwise made available to Aquent and all instructions for processing is and will be done in compliance with applicable law, including without limitation, applicable privacy laws; and (b) You shall provide appropriate notices and obtain all required consents or fall within appropriate exemptions under applicable privacy laws to enable Aquent to process personal information, as required to provide the Services to you as contemplated in the Agreement. You shall not provide sensitive personally identifiable information such as social security numbers, account numbers, driver’s license numbers, and information of a similarly sensitive nature through the Services.

Disclaimer of Warranties and Limitation of Liability

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF EITHER PARTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, FOR THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, AQUENT MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR AQUENT PROPERTY OR ANY THIRD PARTY MATERIALS, THIRD PARTY PRODUCT OR WEBSITE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (A) MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS AND EXPECTATIONS; (B) OPERATE WITHOUT INTERRUPTION; (C) ACHIEVE ANY INTENDED RESULT; (D) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES; OR (E) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE OR UNINTERUPTED USE.

AQUENT DOES NOT WARRANT THE SERVICES WILL OPERATE IN COMBINATION WITH YOUR CONTENT OR YOUR APPLICATIONS, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY AQUENT. YOU ACKNOWLEDGE THAT AQUENT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AQUENT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. AQUENT IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SERVICES THAT ARISE FROM YOUR CONTENT, YOUR APPLICATIONS OR THIRD-PARTY CONTENT OR SET UP OR YOUR ACCOUNT OR YOUR SECURITY CONFIGURATION.

Aquent employs anti-virus measures in accordance with industry-standard best practices but cannot guarantee that any data or files stored in or transmitted through the Services will not be subject to unauthorized access by others or that others will not gain access to the Services or files. AQUENT makes no warranty on network, infrastructure or security beyond Aquent’s reasonable control.      

You are responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from Your Content and Your Applications, including any viruses, Trojan horses, worms or other programming routines contained in Your Content or Your Applications. AQUENT makes no representation or warranty that any data or files stored in or transmitted through the Services do not contain viruses or other damaging or destructive attribute.

AQUENT provides only storage and delivery Services and it is not the publisher of Your information stored or transmitted within the Services. AQUENT does not review, censor, or monitor and is not in any manner responsible for any content stored or sent through the Services. Such content may include, without limitation, infringing, abusive, profane, or sexually offensive material. All content from parties accessed via the Services are accessed by You and those You have authorized, all at Your own risk. You acknowledge hereby and retain all right, title and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in the content, information and files You store through use of the Services, and AQUENT explicitly disclaims any ownership of, or right, title and interest in the content, information and files You store through use of the Services. AQUENT assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content accessed using the Services. 

LIMIT OF LIABILITY

IN NO EVENT IS AQUENT OR ITS LICENSORS LIABLE FOR: (A) DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES EVEN IF AQUENT HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY, IN EACH CASE IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING YOUR CLAIM, INCLUDING, BUT NOT LIMITED TO: (I) BREACH OF CONTRACT, EVEN IF IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH, OR (II) TORT INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MISREPRESENTATION.

IN NO EVENT SHALL AQUENT’S LIABILITY, AND THE LIABILITY OF ITS LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE SIX (6) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. 

Indemnification

You shall indemnify AQUENT against any and all claims arising out of Your use of the Services, including, without limitation, Your use of the Services in conjunction with any material that: (a) infringes any third party’s intellectual property or publicity/privacy rights; (b) violates any law or regulation; (c) is defamatory, libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, harmful to minors or child pornographic; (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage or detrimentally interfere with data or personal information; (f) is materially false, inaccurate or misleading; (g) your breach of applicable law.

User Backup Recommended

Aquent employs redundant data storage, automated disaster recovery and performs           regular back up procedures for the Services. However, You understand the inherent risk in electronic storage and agree to rely solely on Your own back up copies of all files, data, and documents stored in or transmitted through the Services should those files, data, and documents stored in or transmitted through the Services become lost or damaged. During Your Service term, as well as after Your Service term expires, Aquent shall have no responsibility to recover or retrieve Your data, documents, and files stored and transmitted as part of Your use of Aquent Services.

Service and Performance

Aquent will make reasonable efforts to assure that the Services will be available seven (7) days a week. You understand that normal maintenance and backup procedures will cause temporary down time during which the Services cannot be used. It is possible that there will be interruptions of Services. If an outage condition is known sufficiently in advance, Aquent will attempt to provide You with electronic mail notification.

No Agency

You and Aquent are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement. 

Notice

Except as explicitly stated otherwise, any notice to Aquent shall be given by electronic mail or certified mail, postage prepaid and return receipt requested to Aquent LLC, 501 Boylston Street, Boston, MA 02116, Attn: Legal. Notice shall be deemed given three (3) days after the date of mailing. 

Governing Law and Arbitration

All disputes arising out of or in connection with the negotiation, execution, interpretation, performance or nonperformance of the Agreement shall be solely and finally settled by arbitration, which shall be conducted in Boston, Massachusetts, U.S.A. by a single arbitrator appointed by the American Arbitration Association. The parties hereby renounce all recourse to litigation and agree that the award of the arbitrator shall be final and subject to no judicial review. The arbitration shall by conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as now or hereafter amended. All substantive questions of law shall be determined under the laws of the Commonwealth of Massachusetts, U.S.A. (without regard to the principles of conflicts of laws).

Severability

The Terms of Service  and the Implementation Proposal comprises the entire agreement between You and Aquent with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of the Agreement. The Terms of Service   and the Implementation Proposal shall be construed as one agreement. If one or more of the paragraphs in the agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect. 

Force Majeure

Neither party shall be liable for any delay or failure in performance due to causes beyond its reasonable control and without such party’s fault or negligence, including but not limited to natural catastrophes, war, riot, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate the Agreement upon written notice to the other. Under no circumstances will payment obligations be excused or extended as a result of force majeure conditions. 

Service Level Agreement

The ability of an IT Service to perform its required function at a stated instant or over a stated period of time is referred to as “availability” or “uptime”. This Service Level agreement (SLA) represents contractual commitments for delivering specified levels of availability. Availability is expressed as a percentage and is the percentage of time that the service is actually available for use by the customers within an agreed-to service period.

Using the formula outlined above, the availability of RoboHead will be at least 99.50% in a calendar month.

Aquent shall not be held responsible for:

1. Your acts or omissions or anyone gaining access to the system in a manner that is not authorized by Aquent
2. A failure of the Internet and/or the public switched network
3. The occurrence of any event that is beyond Aquent’s reasonable control.
   If Aquent fails to make RoboHead available at the SLA of 99.50% for two (2) consecutive months, then You can terminate the Agreement immediately with written notice, and with no liability for future payments to Aquent.