TERMS OF SERVICE

Effective: December 1st, 2016

LET’S BUILD SOMETHING TOGETHER!

Hello! This Assembly Services Agreement (the “Agreement”) is between Assembly, Inc., a Delaware corporation (“Assembly”) and the individual or organization agreeing to these terms (“Customer”).
Scope. This Agreement governs access to and use of the following that are made available to you (together, the “Services”):
1. Assembly software, firmware, and other programs contained within the Assembly Equipment, accessed online, or downloaded or installed, and any other software or plug-ins to such software distributed or used in connection with the Services,
2. Assembly hardware, including our workstations, terminals, sensor modules, network interface and routing devices, and any other equipment provided by Assembly (“Equipment”),
3. Assembly Internet properties (ex. websites, databases), network infrastructure, bandwidth, and other hosted or on-premise resources,
4. and other services that we may provide to you,
5. as well as the Beta Services.
We Agree. By clicking “I agree”, signing your contract for the Services, or using the Services, Customer agrees to this Agreement as a Customer.
EU Compliance. To the extent that Assembly, Inc. is, on behalf of the Customer, processing Customer Data that is subject to national laws implementing EU Data Protection Directive (95/46/EC) (“EU Data Protection Laws”), by using our Services, you are also agreeing to the EU Standard Contractual Clauses with Assembly, Inc. for the transfer of personal data to processors set forth in Schedule 1.
For an Organization. If you are agreeing to this Agreement and Schedule 1 (if applicable) for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.

1. Services

Provision of Services. Customer and users of Customer’s Services account (“End Users”) may access and use the Services in accordance with this Agreement.
Services Period. Unless Customer is subject to a minimum term arrangement (“MTA”), Services are provided to Customer on either a month-to-month (“Monthly Plan”), a week-to-week (“Weekly Plan”), or as-demanded (“On Demand”) basis. Terms are defined from the first day Services are rendered to Customer, which may or may not align with the first day of a week or month, and renew the term’s number of days later. For this purpose, a week is seven days; a month is a calendar month.
Upgrading or Downgrading. Services, except those provided On Demand, are purchased on a subscription basis which will automatically renew at the end of its applicable term. Subscriptions are billed in advance and are NON-REFUNDABLE FOR THE SUBSCRIPTION PERIOD they are purchased for.
1. For Weekly Plan subscriptions, notice must be received and acknowledged by the start of the second calendar day prior to the start of the next term (e.g. by midnight, 48 hours prior to the start of the next weekly term).
2. For Monthly Plan subscriptions, notice must be received and acknowledged by the start of the seventh calendar day prior to the start of the next term (e.g. by midnight, 24 x 7 = 168 hours prior to the start of the next monthly term).
Beta Services. Assembly may provide features or products that we are still testing and evaluating. These products and features are identified as alpha, beta, preview, early access or evaluation (or words or phrases with similar meanings) (collectively “Beta Services”). Notwithstanding anything to the contrary in this Agreement or in Schedule 1, the following terms apply to all Beta Services:
1. Beta Services may not be supported, may not be reliable, and may be changed at any time without notice to you;
2. Beta Services have not been subjected to the same security measures and auditing to which non-Beta Services (collectively “Assembly Services”) have been subjected; and
3. ASSEMBLY WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES - USE AT YOUR OWN RISK.

2. Data

Customer Data. When you use our Services, you provide us with things like your procedures, specifications, files, content, email messages, procedures, contacts and so on (“Customer Data”). Customer Data belongs to the Customer. These Terms don’t give us any rights to Customer Data except for the limited rights that enable us to offer, develop, and expand the Services.
You Grant Us License. We need your permission to do things like hosting Customer Data, backing it up, and sharing it when you ask us to. Our Services also provide you with features like photo thumbnails, document previews, email organization, easy sorting, editing, sharing and searching of test results and other metadata. These and other features may require our systems to access, store, process, report on, and scan Customer Data. Customer give us permission to do those things, and this permission extends to our affiliates and trusted third parties we work with.
Facilities and Data Processing. The Customer agrees that Assembly may transfer, store and process Customer Data in the United States and locations other than the Customer’s country. To the extent that Customer Data is subject to EU Data Protection Laws and is processed by Assembly as a data processor acting on the Customer’s behalf (as a data controller), Assembly will use and process such Customer Data as the Customer instructs in order to provide the Services and fulfill Assembly’s obligations under the Agreement. “Customer Data” means Stored Data and Account Data.
1. “Stored Data” means the files and structured data submitted to the Services by the Customer or End Users or collected by the Services while fulfilling Assembly’s obligations under the Agreement.
2. “Account Data” means the account and contact information submitted to the Services by the Customer or End Users or collected by the Services while fulfilling Assembly’s obligations under the Agreement.
Suggestions. Assembly may, at its discretion and for any purpose, use, modify and incorporate into its products and services, license and sub-license, any feedback, comments or suggestions that Customer or End Users send Assembly or post in Assembly’s forums without any obligation to Customer.
Customer List. Assembly may include Customer’s name in a list of Assembly customers on the Assembly website or in promotional materials.

3. Software

Software. Some Services allow Customer to download Assembly software, which may be updated automatically. Customer may use the software only to access the Services.
Please No Reverse-Engineering. Unless the following restrictions are prohibited by law, Customer agrees not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.

4. Hardware

It’s Our Stuff. Customer agrees that all Equipment, including any software, firmware, or other programs contained within, belongs to Assembly or other third parties and will not be deemed fixtures or in any way part of Customer’s premises. Customer may not sell, lease, abandon, or give away our Equipment, or permit any other provider to use our Equipment. Customer agrees that you will not allow anyone other than Assembly or its agents to service our Equipment. Customer agrees to use our Equipment only for the Services pursuant to this Agreement.
Installation & Removal. Assembly may remove or change our Equipment at our discretion at any time the Services are active or following the termination of Customer’s Services. Customer acknowledges and agrees that our addition or removal of or change to our Equipment may interrupt Customer’s Services. The Equipment may only be used in the premises in which it was assigned by Assembly. YOU UNDERSTAND AND ACKNOWLEDGE THAT IF YOU ATTEMPT TO INSTALL OR USE OUR EQUIPMENT OR SERVICES AT A LOCATION OTHER THAN THE ONE ASSIGNED BY US, THE SERVICES MAY FAIL TO FUNCTION OR MAY FUNCTION IMPROPERLY.
Safe-Keeping. Assembly suggests that the Equipment in Customer’s possession be covered by Customer’s insurance policy. Customer will be directly responsible for loss, repair, replacement and other costs, damages, fees, and charges if Customer does not return the Equipment to Assembly in an undamaged condition.
No Unauthorized Devices or Tampering. Customer agrees not to attach or assist any person to attach, any unauthorized device to the Equipment. If Customer makes or assists any person to make any unauthorized connection or modification to Assembly Equipment or the Services, Assembly may terminate Customer’s Services and recover such damages as may result.

5. Fees & Payment.

Fees. The Customer will pay, and authorizes Assembly to charge, using the Customer’s selected payment method, for all applicable fees. Fees are non-refundable except as required by law. Refunds (if any) are at the discretion of Assembly and only in the form of credit for the Assembly Services. The Customer is responsible for providing complete and accurate billing and contact information to Assembly. Assembly may suspend or terminate the Services if fees are overdue. Nothing in these Terms obligates Assembly to extend credit to any party.
Fee Calculation. Charges are solely based on Assembly’s measurements of Customer’s use of the Assembly Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, Customer waives all claims relating to charges unless claimed within 60 days after the charge.
When We Bill. You will generally be billed in advance for recurring Services charges, Equipment charges, and fees. YOU MUST PAY, ON OR BEFORE THE DAY WE INSTALL ANY OR ALL OF THE SERVICES. Your first bill may include pro-rated charges from the date you first begin receiving Services, as well as recurring charges for the next month and charges for non-recurring services you have received. You may be billed for some Services individually after they have been provided to you.
Partial Payments. We do not waive our rights to collect the full balance owed to us by accepting partial payment. We will apply the partial payment to the outstanding charges in the amounts and proportions that we determine.
Auto-renewals and Trials. IF THE CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD, ASSEMBLY MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS THE CUSTOMER NOTIFIES ASSEMBLY THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL.
Third-Party Charges. Customer acknowledges that if Customer directs Assembly to incur charges with third-party service providers, such as independent testing laboratories or specialty equipment providers, or by directing Assembly to make payments to third-parties on Customer’s behalf, and Assembly accepts such direction, these charges are separate and apart from the amounts charged by Assembly. Customer is solely responsible for all such charges payable to third parties, including all applicable taxes. In addition, Customer is solely responsible for protecting the security of personal information provided to others in connection with such transactions.
Modifications to the Services. We may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future. The most current version will always be posted on the Assembly Services website. If a revision, in Assembly’s sole discretion, is material, Assembly will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Assembly’s blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
Taxes. The Customer is responsible for all taxes. Assembly will charge tax when required to do so. If the Customer is required by law to withhold any taxes, the Customer must provide Assembly with an official tax receipt or other appropriate documentation. YOU WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES AND TAXES THAT BECOME APPLICABLE RETROACTIVELY.
Purchase Orders. If the Customer requires the use of a purchase order or purchase order number, the Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If the Customer is purchasing via a reseller, any terms and conditions from the Customer’s reseller or in a purchase order between the Customer and its reseller that conflict with the Assembly Services Agreement are null and void.

6. Term & Termination.

Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
Termination for Breach. Either Assembly or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
Effects of Termination. If this Agreement terminates: (i) the rights granted by Assembly to Customer will cease immediately (except as set forth in this section); (ii) Assembly may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and (iii) after a commercially reasonable period of time, Assembly may delete any Stored Data relating to Customer’s account. The following sections will survive expiry or termination of this Agreement: Third-party Requests, Intellectual Property Rights, Fees & Payment, Effects of Termination, Indemnification, Disclaimers, Limitation of Liability, Disputes, and Miscellaneous.

7. End Users & Other Third Parties.

Compliance. Customer is responsible for use of the Services by its End Users. Customer and its End Users must use the Services in compliance with the Acceptable Use Policy. Customer will obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Assembly to provide the Services. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any.
Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify Assembly of any unauthorized use of or access to the Services.
Suspension. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that Assembly reasonably believes will cause it liability, then Assembly may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Assembly may do so.
Restricted Uses. Customer will not (i) sell, resell or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
If Customer uses any third-party service (ex. a service that uses an Assembly API) with the Services, (a) Assembly will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) Assembly does not warrant or support any service provided by the third party.
“Third-party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer’s Services account. Third-party Requests may include valid search warrants, court orders or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
Customer is responsible for responding to Third-party Requests via its own access to information. Customer will seek to obtain information required to respond to Third-party Requests and will contact Assembly only if it cannot obtain such information despite diligent efforts.
Assembly will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-party Request, to:
1. promptly notify Customer of Assembly’s receipt of a Third-party Request;
2. comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third-party Request; and
3. provide Customer with information or tools required for Customer to respond to the Third-party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third-party Request, Assembly may, but will not be obligated to do so.

8. Indemnification.

By Customer. Customer will indemnify, defend and hold harmless Assembly from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Assembly and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.
By Assembly. Assembly will indemnify, defend and hold harmless Customer from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Assembly’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, US patent or trademark right of the third party. In no event will Assembly have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by Assembly and (ii) any content, information or data provided by Customer, End Users or other third parties.
Possible Infringement. If Assembly believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, Assembly may: (i) obtain the right for Customer, at Assembly’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Assembly does not believe the options described in this section are commercially reasonable, Assembly may suspend or terminate Customer’s use of the affected Services (with a pro rata refund of pre-paid fees for the Services).
General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE ASSEMBLY AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

9. Limitation of Liability.

As Is. THE SERVICES ARE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR ASSEMBLY AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.
Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ASSEMBLY OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR ASSEMBLY AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, ASSEMBLY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $100,000 OR THE AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Export Restrictions. The export and re-export of Customer Data via the Services, or the outputs of the manufacturing the Services have enabled, may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba, Iran, North Korea, Sudan, or Syria or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
Export Indemnification. If Customer violates any of Customer’s obligations and commitments under this Section, Assembly may terminate, cancel, or otherwise be excused from performing any obligations it may have under this contract. Customer will fully indemnify Assembly and its representatives against any damages, costs, losses, and/or liabilities arising out of Customer’s non-compliance with this Section which shall survive termination of this contract.

10. Disputes.

Informal Resolution. Assembly wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or Assembly may bring a formal proceeding.
Agreement to Arbitrate. Customer and Assembly agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in San Francisco (CA), or any other location both parties agree to in writing.
NO CLASS ACTIONS. Customer may only resolve disputes with Assembly on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.

11. Miscellaneous.

Entire Agreement. This Agreement, including the Customer’s invoice and order form with Assembly (if applicable), constitutes the entire agreement between the Customer and Assembly with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement including any inconsistency between the terms of a warehouse receipt, or the terms included on a Customer’s Purchase Order, and this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Assembly invoice, the Assembly order form, the Agreement.
Governing Law. THE AGREEMENT WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES.
Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
Notice. Notices must be sent via first class post, airmail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Assembly must be sent to Assembly, Inc.; Attn: Legal Dept.; 599 Seaport Blvd.; Redwood City, CA 94063.
Waiver. A waiver of any default is not a waiver of any subsequent default.
Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Assembly. Assembly may not assign this Agreement without providing notice to Customer, except Assembly may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
No Agency. Assembly and Customer are not legal partners or agents, but are independent contractors.
Force Majeure. Except for payment obligations, neither Assembly nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labour condition, governmental action and Internet disturbance).
No Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.

Appendix A: Assembly Now

The document Assembly Now Definitions and Additional Terms is herein incorporated by reference.

Appendix B: Assembly Move

The document Assembly Move Warehousing and Logistics Services Agreement is herein incorporated by reference.

Schedule 1

Schedule 1 incorporates the text of Commission Decision C(2010)593’s ANNEX: Standard Contractual Clauses (processors). Complete text available here.