EXHIBIT 1 – Definitions
“Affiliate” means, in relation to a Party, any Person that controls, is controlled by, or is under common control with such Party, where “control” means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of a Person, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such Person.
“Agreement” means this Agreement, its Exhibits, Schedules, any SOWs and Orders executed by the Parties in connection with the Services relating thereto, and all Attachments and Exhibits of any of the foregoing.
“Authorized User” means Customer’s and its Subsidiaries’ employees, contractors, and agents (including temporary employees and contract employees) authorized by Customer to access and use the Cloud Service on Customer’s or any of its Subsidiaries’ behalf.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in New York, New York.
“Cloud Service” means the online, web-based applications of the Software provided by Varicent that are ordered by Customer under an Order executed by the Parties or on the Online Portal with respect to Free Services, if applicable.
“Customer” means the Person identified as “Customer” in the first Order executed by the Parties. With respect to Free Services and Symon.AI Purchased Cloud Services accessed through the Online Portal, Customer shall refer to the individual accepting this Agreement on his or her own behalf, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.
“Customer Data” means all Records, Personal Data, documents, content, and other data and information uploaded to the Cloud Service by Customer, any of its Subsidiaries, or any Authorized User.
“Data Protection Laws” means the EU General Data Protection Regulation 2016/679 (GDPR), the California Consumer Privacy Act, and any other applicable similar privacy or data protection Laws.
“Data Security Standards” has the meaning given in Section 6.1.
“Documentation” means the documentation for the Cloud Service made available by Varicent to Customer, including training materials and user manuals, which may be amended by Varicent from time to time upon notice to Customer.
“Effective Date” means the date of Customer’s acceptance of this Agreement.
“Entitlement” is the method by which Varicent charges for use of the Cloud Service, on a “per Entitlement” basis. What constitutes an “Entitlement” is dependent on the ordered Software for which the Cloud Service is provided, as set forth in the relevant Software Schedule.
“Fees” has the meaning given in Section 3.1.
“Force Majeure Event” has the meaning given in Section 13.9.
“Free Services” means Cloud Services which Varicent makes available to Customer free of charge.
“Intellectual Property Rights” means all patents, copyrights, moral rights, database rights, design rights, and rights in trade secrets and know-how, all other intellectual property and proprietary rights, all other equivalent or similar rights which may arise or exist anywhere in the world, in each case, whether registered or unregistered, and all applications for any of the foregoing rights.
“Law” means all applicable law, statutes, regulations and codes from time to time in force.
“Online Portal” means a portal on https://www.varicent.com or other Varicent owned and operated website where Free Services or Symon.AI Purchased Services are made available by Varicent.
“Order” means any order for Services or Entitlements that references this Agreement and is executed by both Parties.
“Party” means each of Varicent and Customer individually and “Parties” means Varicent and Customer collectively.
“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, self-regulatory organization, regulatory authority, or other governmental authority.
“Purchased Cloud Services” means Cloud Services that Varicent makes available to Customer for a fee.
“Personal Data” means (a) any information that, either alone or in combination with other readily available data, identifies an individual or from which an individual is identifiable, including any name, address, financial information or social security number, and (b) any information that comprises “non-public personal information”, “personal information”, “personal data” or equivalent term, as such terms are defined in applicable Data Protection Laws.
“Personnel” means a Person’s employees, independent contractors, and subcontractors.
“Production Instance” means a configuration of the Cloud Service that provides full productive use of product and any add-ons listed in any Orders.
“Professional Services” means the services to be provided by Varicent or any of its Affiliates to Customer set forth in any SOW.
“Record” means the data that represents any physical or electronic document managed by the Cloud Service, including call detail records, invoices, plans, purchase orders, quotes, receipts, returns, sales orders, schedules, and shipments.
“Representative” means a Person’s officers, directors, Personnel, attorneys, accountants, and agents.
“Services” means, collectively, the Cloud Service, the Support Services, and any Professional Services.
“SOW” means a statement of work for the provision of Professional Services by Varicent to Customer executed by both Parties that references this Agreement.
“Software” means the object-code version of Varicent’s software programs ordered by Customer in an Order (including any related Varicent application programming interfaces) or on the Online Portal with respect to Free Services, if applicable.
“Software Schedule” has the meaning given in Section 1.
“Subscription Term” means the duration of the period during which Customer is entitled to use the Purchased Cloud Service, as set out in an Order.
“Subsidiary” means, in relation to a Party, any Affiliate that is controlled by such Party where “control” has the meaning given in the definition of “Affiliate”.
“Support Services” has the meaning given in Section 4.1.
“Third Party” means a Person other than Varicent, Customer or their respective Affiliates.
“Trial Period” means the duration of the period during which Customer is entitled to use the Free Services, as set out in an Order or the Online Portal.
“Usage Data” has the meaning given in Section 8.2.
“Varicent IP” has the meaning given in Section 8.2.