Terms of Service

PCX ANALYTICS LLC

TERMS OF SERVICE

These PCX Analytics Terms of Service (these “Terms of Service” or this “Agreement”) govern Customer’s access to and use of the PCXa cloud-based analytics platform (the “Cloud Service”). Customer and PCX Analytics LLC (“Provider”) agree to be bound by these Terms of Service, which together with any Orders form the parties’ Agreement. In the event of conflict among the component documents, the order of precedence in Section 22.5 controls. Capitalized terms are defined in Section 23 (Definitions) or in context.

1. Cloud Service

Subject to this Agreement, Customer may access and use the Cloud Service for its own internal business purposes during each Subscription Term (the “Permitted Use”). This right includes the right to copy and use any Provider Software and Documentation as part of Customer’s Permitted Use. Customer shall comply with the Documentation in using the Cloud Service.

2. Users

Customer may permit Users to use the Cloud Service on its behalf. Customer is responsible for provisioning and managing User accounts, for its Users’ actions through the Cloud Service, and for their compliance with this Agreement. Customer shall ensure that Users keep their login credentials confidential and shall notify Provider promptly upon learning of any compromise of User accounts or credentials.

3. Affiliates

Customer’s Affiliates may serve as Users under this Agreement. Alternatively, a Customer Affiliate may enter into its own Order directly with Provider, which creates a separate agreement between such Affiliate and Provider incorporating this Agreement with the Affiliate treated as “Customer.” Neither Customer nor any Affiliate has rights under the other’s separate agreement, and breach or termination of one does not affect any other.

4. Customer Data and Security

4.1. Use of Customer Data.

Subject to this Agreement, Provider shall access and use Customer Data solely to provide and maintain the Cloud Service, Support, and Professional Services (“Use of Customer Data”). Provider shall not disclose Customer Data to third parties except as authorized in this Agreement.

4.2. Security.

Provider shall implement and maintain the Security Measures identified in an Order or SOW. If no Security Measures are specified, Provider shall use appropriate technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data.

4.3. Data Processing Addendum.

The parties shall adhere to the PCX Analytics Data Processing Addendum, which is incorporated into this Agreement by reference.

4.4. Usage Data.

Provider may collect Usage Data and use it to operate, improve, and support the Cloud Service and for other lawful business purposes, including benchmarking and aggregate reporting. Provider shall not disclose Usage Data externally unless it is: (a) de-identified so that it does not identify Customer, its Users, or any other individual; and (b) aggregated with data across other customers. Customer may opt out of any ML/AI training usage by written notice to privacy@pcxa.app. For the avoidance of doubt, Usage Data derived from or incorporating Customer Personal Data (as defined in the DPA) remains subject to the secondary use prohibition in the DPA.

5. Compliance with Laws

Each party shall comply with all Laws applicable to its performance under this Agreement.

6. Support and Service Level

6.1. Support.

Provider shall provide support for the Cloud Service via email to support@pcxa.app during business hours (Monday through Friday, 9:00 AM to 5:00 PM Central Time, excluding U.S. federal holidays). Provider shall use commercially reasonable efforts to respond within two (2) business days. Support covers troubleshooting, bug reports, and general usage questions. Support does not include custom training, data migration, third-party integration assistance, or other Professional Services.

6.2. Service Level.

Provider shall adhere to the Service Level Agreement (“SLA”) specified in the applicable Order. If no SLA is specified, Provider shall use commercially reasonable efforts to make the Cloud Service available 99.5% of the time per calendar month.

6.3. SLA Exclusive Remedy.

Service credits issued under the SLA and the Multiple Failures termination right (each as defined in the SLA specified in the applicable Order, if any) are Customer’s sole and exclusive remedies, and Provider’s sole liability, for any failure to meet Target Availability (as defined in the applicable SLA or, if no SLA is specified, the 99.5% monthly availability target in Section 6.2). A failure to meet Target Availability will not, by itself, constitute a material breach of this Agreement for purposes of Section 13.3. For the avoidance of doubt, any claim relating to the availability, accessibility, or uptime of the Cloud Service is governed exclusively by the SLA and this Section 6.3, and not by the Performance Warranty in Section 7.2(a). The Performance Warranty applies to the functional operation of the Cloud Service (features performing as described in the Documentation) when the Cloud Service is accessible.

7. Warranties

7.1. Mutual Warranties.

Each party represents and warrants that: (a) it has legal power and authority to enter into this Agreement; and (b) it shall use industry-standard measures to avoid introducing Viruses into the Cloud Service.

7.2. Provider Warranties.

1. Performance Warranty. The Cloud Service shall perform materially as described in the Documentation, and Provider shall not materially decrease the overall functionality of the Cloud Service during a Subscription Term.
2. Professional Services Warranty. Professional Services shall be performed in a professional and workmanlike manner.

7.3. Warranty Remedy.

Provider shall use reasonable efforts to correct a verified breach of the Performance Warranty or Professional Services Warranty reported by Customer. If Provider fails to do so within thirty (30) days after Customer’s warranty report (the “Fix Period”), either party may terminate the Order as it relates to the non-conforming Cloud Service or Professional Services, in which case Provider shall refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). To receive these remedies, Customer must report a breach in reasonable detail within forty-five (45) days after discovering the issue in the Cloud Service, or within forty-five (45) days after delivery of the relevant Professional Services, as applicable (the “Claim Period”). These procedures are Customer’s exclusive remedies and Provider’s sole liability for breach of the Performance Warranty or Professional Services Warranty.

7.4. Disclaimer.

Except as expressly set forth in this Agreement, each party disclaims all warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, and noninfringement. Provider’s warranties do not apply to issues arising from third-party platforms or misuse or unauthorized modification of the Cloud Service.

8. Usage Rules

8.1. Compliance.

Customer: (a) shall comply with the Acceptable Use Policy in Section 8.4; and (b) represents and warrants that it has all rights necessary to use Customer Data with the Cloud Service and to grant Provider the rights to Customer Data specified in this Agreement, without violating third-party intellectual property, privacy, or other rights. Between the parties, Customer is responsible for the content and accuracy of Customer Data.

8.2. High Risk Activities and Sensitive Data.

Customer: (a) shall not use the Cloud Service for High Risk Activities; (b) shall not submit Sensitive Data to the Cloud Service except that Customer may submit Protected Health Information (as defined under HIPAA) solely to the extent that Customer and Provider have executed a separate Business Associate Agreement (meaning a written agreement satisfying the requirements of 45 C.F.R. § 164.308 and related HIPAA implementing regulations) governing such submission and Customer has received Provider’s prior written approval to enable HIPAA-covered use of the Cloud Service; and (c) acknowledges that the Cloud Service is not designed for (and Provider has no liability for) use prohibited in this Section 8.2.

8.3. Restrictions.

Customer shall not and shall not permit anyone else to: (a) sell, sublicense, distribute, or rent the Cloud Service (in whole or part), grant non-Users access to the Cloud Service, or use the Cloud Service to provide a hosted or managed service to others; (b) reverse engineer, decompile, or seek to access the source code of the Cloud Service, except to the extent these restrictions are prohibited by Laws and then only upon advance notice to Provider; (c) copy, modify, create derivative works of, or remove proprietary notices from the Cloud Service; (d) conduct security or vulnerability tests of the Cloud Service, interfere with its operation, or circumvent its access restrictions; or (e) use the Cloud Service to develop a product that competes with the Cloud Service.

8.4. Acceptable Use Policy.

In using the Cloud Service, Customer and its Users shall not:

1. submit or transmit any content that is unlawful, harmful, threatening, abusive, harassing, defamatory, or otherwise objectionable;
2. impersonate any person or entity or falsely state or misrepresent an affiliation with a person or entity;
3. upload or transmit viruses, worms, or any other malicious code or software;
4. attempt to gain unauthorized access to the Cloud Service, other accounts, computer systems, or networks connected to the Cloud Service;
5. use the Cloud Service to send unsolicited communications, promotions, or advertisements;
6. use the Cloud Service for cryptocurrency mining, load testing, or other resource-intensive activities not related to the Cloud Service’s intended purpose;
7. scrape, data mine, or use automated means to access the Cloud Service except through Provider-authorized APIs;
8. use the Cloud Service in any manner that could disable, overburden, damage, or impair the Cloud Service or interfere with any other party’s use; or
9. violate any applicable laws, regulations, or third-party rights in connection with use of the Cloud Service.

Provider may investigate and take appropriate action against violations, including removal of offending content, suspension of access (per Section 12), or termination of the Agreement.

8.5. Analytics Outputs Disclaimer.

Customer acknowledges that: (a) the Cloud Service is a data analytics platform and is not a substitute for professional judgment, building information modeling, or safety-critical decision-making; (b) all outputs and reports are for informational purposes only and must be independently verified before being relied upon for construction, safety, or regulatory compliance decisions; (c) Provider makes no representations regarding the suitability of the Cloud Service for safety-critical activities; and (d) Customer assumes sole responsibility for all decisions made using outputs of the Cloud Service.

9. Third-Party Platforms

Customer may enable integrations with Third-Party Platforms. Customer’s use of any Third-Party Platform is governed by its agreement with the relevant provider, not this Agreement. Provider is not responsible for Third-Party Platforms or how their providers use Customer Data.

10. Professional Services

Provider shall perform Professional Services as described in an Order or Statement of Work, which may identify additional terms or milestones for the Professional Services. Customer shall provide Provider with timely access to Customer Materials reasonably needed for Professional Services, and Provider shall use Customer Materials only for purposes of providing Professional Services. Subject to any limits in an Order or Statement of Work, Customer shall reimburse Provider’s reasonable travel and lodging expenses incurred in providing Professional Services. Customer may use code and deliverables furnished as part of Professional Services in connection with Customer’s Permitted Use of the Cloud Service. Deliverables not technically dependent on the Cloud Service may be used for Customer’s internal business purposes.

11. Fees

11.1. Payment.

Customer shall pay the fees described in the Order within thirty (30) days after the invoice date (the “Payment Period”). Late payments are subject to a charge of 1.5% per month or the maximum rate permitted by law, whichever is less. Undisputed amounts more than fifteen (15) days past due may result in suspension of the Cloud Service in accordance with Section 12. All fees and expenses are non-refundable except as expressly set forth in this Agreement.

11.2. Taxes.

Customer is responsible for all sales, use, GST, value-added, withholding, and similar taxes applicable to its Orders, excluding Provider’s income taxes.

11.3. Payment Disputes.

If Customer disputes an invoice in good faith, it shall notify Provider within the Payment Period. The parties shall attempt to resolve the dispute within fifteen (15) days. Customer is not required to pay disputed amounts during the discussion period, but shall timely pay all undisputed amounts. After the discussion period, either party may pursue any available remedies.

11.4. Price Changes.

Provider may increase fees for any renewal Subscription Term upon at least thirty (30) days’ prior written notice before the start of the applicable renewal period. If Customer does not agree to the price increase, Customer may terminate this Agreement by providing written notice to Provider before the renewal date, and Provider shall not apply the increased fees. If Customer does not terminate before the renewal date, the new fees shall apply for the renewal Subscription Term.

12. Suspension

Provider may suspend Customer’s access to the Cloud Service and related services due to a Suspension Event, but where practicable shall give Customer prior notice so that Customer may seek to resolve the issue and avoid suspension. Provider is not required to give prior notice in exigent circumstances or for a suspension made to avoid material harm or violation of Law. Once the Suspension Event is resolved, Provider shall promptly restore Customer’s access to the Cloud Service in accordance with this Agreement. “Suspension Event” means: (a) Customer’s account is fifteen (15) or more days overdue; (b) Customer is in material breach of the Acceptable Use Policy (Section 8.4); or (c) Customer’s use of the Cloud Service risks material harm to the Cloud Service or others.

13. Term and Termination

13.1. Subscription Terms.

Each Subscription Term shall last for an initial twelve (12)-month period unless the Order states otherwise. Each Subscription Term shall automatically renew for successive periods of the same duration unless: (a) the parties agree on a different renewal Order; or (b) either party notifies the other of non-renewal at least sixty (60) days prior to the end of the current Subscription Term.

13.2. Term of Agreement.

This Agreement commences on the Effective Date and continues until the end of all Subscription Terms, unless earlier terminated.

13.3. Termination for Cause.

Either party may terminate this Agreement if the other party: (a) fails to cure a material breach within thirty (30) days after written notice; (b) ceases operations without a successor; or (c) seeks protection under bankruptcy or similar insolvency proceedings that are not dismissed within sixty (60) days.

13.4. Data Export and Deletion.

1. During a Subscription Term, Customer may export Customer Data from the Cloud Service (or Provider shall otherwise make Customer Data available to Customer) as described in the Documentation.
2. After termination or expiration, Customer shall have ninety (90) days to extract Customer Data in a machine-readable format. Provider shall delete Customer Data after such ninety (90)-day period, and each party shall delete the other’s Confidential Information in its possession.
3. Each party may retain Customer Data and Confidential Information in accordance with its standard backup or records retention policies or as required by law, subject to the security and confidentiality provisions of this Agreement.

13.5. Effect of Termination.

Customer’s right to use the Cloud Service, Support, and Professional Services shall cease upon termination or expiration. The following Sections survive: 4.4 (Usage Data), 6.3 (SLA Exclusive Remedy), 7.3 (Warranty Remedy), 7.4 (Disclaimer), 8 (Usage Rules), 11.1 (Payment, for amounts then due), 11.2 (Taxes), 13.4 (Data Export and Deletion), 13.5 (Effect of Termination), 14 (Intellectual Property), 15 (Limitations of Liability), 16 (Indemnification), 18 (Confidentiality), 19 (Required Disclosures), 22 (General Terms, including 22.16 (Dispute Resolution) and 22.17 (Class Action Waiver)), and 23 (Definitions).

Except where an exclusive remedy is provided, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

14. Intellectual Property

14.1. Reserved Rights.

Neither party grants the other any rights not expressly set out in this Agreement. As between the parties: Customer retains all rights in Customer Data and Customer Materials; Provider and its licensors retain all rights in the Cloud Service, Professional Services deliverables, and related technology.

14.2. Feedback.

If Customer provides feedback regarding the Cloud Service, Support, or Professional Services, Provider may use such feedback without restriction or obligation. All feedback is provided “AS IS.” Provider shall not publicly identify Customer as the source of any feedback without Customer’s prior written permission.

14.3. Customer Data Ownership.

As between the parties, Customer retains all right, title, and interest in Customer Data. Nothing in this Agreement transfers ownership of Customer Data to Provider.

15. Limitations of Liability

15.1. General Cap.

Each party’s entire liability arising out of or related to this Agreement shall not exceed the General Cap.

15.2. Consequential Damages Waiver.

Neither party shall have any liability for indirect, special, incidental, reliance, or consequential damages, or for loss of use, lost profits, or interruption of business, even if informed of the possibility in advance.

15.3. Exceptions and Enhanced Cap.

Sections 15.1 and 15.2 do not apply to Enhanced Claims or Uncapped Claims. For Enhanced Claims, each party’s entire liability shall not exceed the Enhanced Cap.

15.4. Nature of Claims.

These limitations apply regardless of the form of action and survive failure of any limited remedy.

15.5. Liability Definitions.

“Enhanced Cap” means three times (3x) the General Cap.

“Enhanced Claims” means (a) Provider’s breach of Section 4.2 (Security); (b) either party’s breach of Section 4.3 (DPA); (c) either party’s breach of Section 18 (Confidentiality); (d) either party’s infringement or misappropriation of the other party’s intellectual property rights; and (e) the indemnifying party’s obligations under Section 16.

“General Cap” means the total fees paid or payable by Customer to Provider in the twelve (12) months preceding the first event giving rise to the claim.

“Uncapped Claims” means (a) fraud or intentional misconduct; and (b) liabilities that cannot be limited by law.

16. Indemnification

16.1. By Provider.

Provider shall defend Customer from and against Provider-Covered Claims and shall indemnify and hold harmless Customer from any damages, costs, and attorneys’ fees arising therefrom.

16.2. By Customer.

Customer shall defend Provider from and against Customer-Covered Claims and shall indemnify and hold harmless Provider from any damages, costs, and attorneys’ fees arising therefrom.

16.3. Definitions.

“Customer-Covered Claim” means a third-party claim arising from Customer’s breach or alleged breach of Section 8.1 (Compliance) or Section 8.2 (High Risk Activities and Sensitive Data).

“Provider-Covered Claim” means a third-party claim that the Cloud Service, when used by Customer as authorized in this Agreement, infringes or misappropriates a third party’s intellectual property rights.

16.4. Procedures.

The indemnifying party’s obligations are conditioned on: (a) prompt written notice (delayed notice only reduces obligations to the extent of actual prejudice); (b) exclusive control of defense and settlement; and (c) reasonable cooperation at the indemnifying party’s expense. The indemnifying party may not settle a claim in a manner requiring the indemnified party to admit fault or take or refrain from taking any action, except that when Provider is the indemnifying party it may settle claims involving Customer’s use of the Cloud Service without Customer’s consent. The indemnified party may participate with its own counsel at its own expense.

16.5. Mitigation.

In response to an infringement claim, Provider may: (a) procure rights for Customer’s continued use; (b) replace or modify the infringing element without reducing overall functionality; or (c) terminate the affected Order and refund pre-paid unused fees.

16.6. Exceptions.

Provider’s indemnification obligations do not apply to claims arising from: (a) modification or unauthorized use of the Cloud Service; (b) use of the Cloud Service in combination with items not provided by Provider, including Third-Party Platforms; or (c) Provider Software other than the most recent release, if Provider made available at no additional charge a newer release that would have avoided the infringement.

16.7. Exclusive Remedy.

This Section 16 sets forth the indemnified party’s exclusive remedy and the indemnifying party’s sole liability for third-party intellectual property claims.

17. Trials and Betas

Provider may offer optional Trials and Betas. Use is permitted only for internal evaluation during the period designated in the Order (or thirty (30) days if not designated). Either party may terminate Trials and Betas at any time. Trials and Betas may be inoperable, incomplete, or include features never released.

Provider offers no warranty, indemnity, SLA, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$1,000.

18. Confidentiality

18.1. Use and Protection.

As Recipient, each party shall: (a) use Confidential Information only to perform its obligations and exercise its rights under this Agreement; (b) not disclose Confidential Information to third parties without the Discloser’s prior written consent; and (c) protect Confidential Information with at least the same care it uses for its own similar information, and no less than a reasonable standard of care.

18.2. Permitted Disclosures.

Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided they are bound to confidentiality obligations no less protective than this Section 18. Recipient remains responsible for their compliance.

18.3. Exclusions.

Confidentiality obligations do not apply to information that Recipient can demonstrate: (a) is or becomes publicly available through no fault of Recipient; (b) was rightfully known without restriction prior to receipt; (c) was rightfully received from a third party without restriction; or (d) was independently developed without reference to Confidential Information.

18.4. Remedies.

Breach of this Section 18 may cause irreparable harm for which monetary damages are an inadequate remedy. The Discloser shall be entitled to seek equitable relief, including a temporary restraining order, preliminary injunction, or permanent injunction, without the requirement to post bond or other security or to prove the amount of actual damages, in addition to all other remedies available at law or in equity.

18.5. Survival.

Confidentiality obligations survive termination for five (5) years. Obligations with respect to trade secrets survive for so long as such information remains a trade secret.

19. Required Disclosures

Recipient may disclose Confidential Information (including Customer Data) to the extent required by law. If permitted by law, Recipient shall provide reasonable advance notice and cooperate in obtaining confidential treatment.

20. Publicity

Neither party may publicly announce this Agreement without the other party’s prior written consent, except as required by law.

21. Anti-Bribery and Anti-Corruption

Each party represents, warrants, and covenants that it will comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010. Neither party will, directly or indirectly, offer, pay, promise, or authorize any payment of value to any government official or other person for the purpose of influencing any decision, securing any improper advantage, or inducing any violation of lawful duties.

22. General Terms

22.1. Assignment.

Neither party may assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement, with notice to the other party, in connection with the assigning party’s merger, reorganization, acquisition, or transfer of all or substantially all of its assets or voting securities. Any non-permitted assignment is void. This Agreement shall bind and inure to the benefit of each party’s permitted successors and assigns.

22.2. Governing Law and Venue.

This Agreement is governed by the laws of the State of Texas, without regard to conflict of law principles. The parties shall adjudicate any action arising out of or relating to this Agreement in the state and federal courts located in Harris County, Texas, and each party consents to the exclusive jurisdiction and venue of such courts for these purposes.

Any dispute arising out of or relating to this Agreement is subject to the dispute resolution procedures in Section 22.15 and the jury trial waiver in Section 22.16.

22.3. Notices.

Notices must be in writing to the addresses on the Cover Page and are deemed given: (a) upon personal delivery; (b) upon receipt if by certified mail; (c) one (1) day after dispatch if by overnight courier; or (d) upon delivery if by email. Provider may also send operational notices through the Cloud Service.

22.4. Entire Agreement.

This Agreement, including all Orders, constitutes the entire agreement of the parties regarding its subject matter and supersedes all prior and contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. Excluding Orders, terms in business forms, purchase orders, or quotes used by either party shall not amend or modify this Agreement; any such documents are for administrative purposes only. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

22.5. Order of Precedence.

In the event of conflict: (1) the DPA controls with respect to Processing of personal data; (2) Additional Terms and Attachments specified in an Order control; (3) an Order controls over these Terms of Service only with respect to the subject matter of that Order, and only if the Order specifically identifies the provisions it supersedes; (4) a Statement of Work executed under this Agreement is treated as an Order or attachment to an Order for purposes of this Section 22.5, and controls over these Terms of Service only with respect to the Professional Services it governs and only if it specifically identifies the provisions it supersedes; and (5) these Terms of Service control over all other documents, including any Customer purchase orders or business forms.

22.6. Amendments and Operational Changes.

Amendments require a written instrument executed by both parties. Provider may modify the Cloud Service, Support, SLA, Documentation, or Security Measures with notice to Customer; such modifications may not materially decrease the overall functionality of the Cloud Service during a Subscription Term. Provider shall give at least thirty (30) days’ advance notice of material changes.

22.7. Waivers and Severability.

Waivers must be in writing and cannot be implied from conduct. If any provision is held invalid or unenforceable, it shall be limited to the minimum extent necessary, and the remaining provisions shall remain in effect.

22.8. Force Majeure.

Neither party is liable for delay or failure to perform due to a Force Majeure. If a Force Majeure materially adversely affects the Cloud Service for thirty (30) or more consecutive days, either party may terminate the affected Order(s) upon notice to the other, and Provider shall refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. However, this Section does not limit Customer’s obligations to pay fees owed.

22.9. Subcontractors.

Provider may engage subcontractors and permit them to exercise its rights and fulfill its obligations, but remains responsible for their compliance. This does not limit any additional terms for subprocessors under the DPA.

22.10. Independent Contractors.

The parties are independent contractors, not agents, partners, or joint venturers.

22.11. No Third-Party Beneficiaries.

There are no third-party beneficiaries to this Agreement.

22.12. Open Source.

Provider Software distributed to Customer (if any) may include third-party open source software (“Open Source”) as listed in the Documentation or provided by Provider upon request. If Customer elects to use any Open Source on a standalone basis, that use is subject to the applicable Open Source license and not this Agreement.

22.13. Export.

Each party shall: (a) comply with all applicable export and import Laws in performing this Agreement; and (b) represent and warrant that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or designated by the U.S. government as a terrorist-supporting country. Customer shall not submit to the Cloud Service any data controlled under the U.S. International Traffic in Arms Regulations.

22.14. Government Rights.

To the extent applicable, the Cloud Service is “commercial computer software” or a “commercial item” for purposes of FAR 12.212 and DFARS 227.7202. Use, reproduction, release, modification, disclosure, or transfer of the Cloud Service is governed solely by the terms of this Agreement, and all other use is prohibited.

22.15. Dispute Resolution.

Before commencing any Action (other than a request for equitable relief under Section 18.4), the aggrieved party shall first notify the other party in writing describing the dispute in reasonable detail. Within ten (10) business days of such notice, a principal or senior executive of each party shall meet (in person or by videoconference) to attempt to resolve the dispute in good faith. If the dispute is not resolved within such period, either party may initiate non-binding mediation administered by a mutually agreed mediator in Harris County, Texas, with costs shared equally. If the dispute is not resolved within thirty (30) days after the mediator is appointed (or forty-five (45) days after the initial dispute notice if no mediator is appointed), either party may pursue remedies available under this Agreement, including litigation in the courts specified in Section 22.2. Notwithstanding this Section, either party may seek injunctive or other equitable relief at any time to prevent irreparable harm.

22.16. Jury Trial Waiver.

The parties expressly and irrevocably waive any right to trial by jury with respect to any dispute arising out of or relating to this Agreement. No dispute under this Agreement shall be submitted to arbitration.

22.17. Class Action Waiver.

To the fullest extent permitted by law, each party may only bring claims against the other in its individual capacity and not as a plaintiff or class member in any purported class, consolidated, or representative proceeding.

23. Definitions

“Acceptable Use Policy” or “AUP” has the meaning set forth in Section 8.4 (Acceptable Use Policy).

“Additional Terms” means any additions to or modifications of these Terms of Service specified on the Cover Page or in an Order.

“Affiliate” means an entity controlled by, controlling, or under common control with a party, where “control” means at least fifty percent (50%) ownership or the power to direct management.

“Agreement” has the meaning in the preamble.

“Attachments” means any attachments, policies, or documents that the parties specify on the Cover Page.

“Cloud Service” means Provider’s proprietary PCXa cloud-based analytics platform, as modified from time to time. The Cloud Service includes the Provider Software and Documentation but not Professional Services deliverables or Third-Party Platforms.

“Confidential Information” means (i) information or material that gives or could give the Discloser or its affiliates a competitive advantage, or the disclosure of which could be detrimental to the Discloser’s or its affiliates’ interests; (ii) all non-public information (in any form or medium) concerning the Discloser or its affiliates, including without limitation business, assets, liabilities, operations, financial condition, projections, contracts, customers, products, data, data models, machine learning models, algorithms, source code, object code, software, ideas, concepts, marketing techniques, formulas, systems, trade secrets, know-how, pricing, and personnel; (iii) information identified as ‘confidential’ or ‘proprietary’ or that should reasonably be understood as such given its nature and the circumstances of disclosure; and (iv) all analyses, compilations, studies, reports, diagrams, flowcharts, records, or other documents prepared by or for Recipient based on information furnished by Discloser. Each party’s Confidential Information also includes the existence and status of the parties’ discussions and the terms of this Agreement. Provider’s Confidential Information includes technical and performance information about the Cloud Service. Customer’s Confidential Information includes Customer Data.

“Customer” means the party identified as “Customer” on the Cover Page or in an Order.

“Cover Page” means a cover page or other document that (a) incorporates these Terms of Service by reference, (b) specifies the Key Terms and any Additional Terms and incorporates any Attachments, and (c) is signed by Customer and Provider.

“Customer Data” means any data, content, or materials that Customer (including its Users) submits to the Cloud Service, including data from Third-Party Platforms.

“Customer Materials” means materials and resources that Customer makes available to Provider in connection with Professional Services.

“DPA” means the PCX Analytics Data Processing Addendum.

“Discloser” means the party disclosing Confidential Information. Each party may be a Discloser, a Recipient, or both with respect to different Confidential Information.

“Documentation” means Provider’s standard usage documentation for the Cloud Service.

“Effective Date” means the date specified in the first Order executed under this Agreement.

“Force Majeure” means an unforeseen event beyond a party’s reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, third-party internet or utility failure, refusal of government license, or natural disaster, where the affected party takes reasonable and customary measures to avoid or mitigate such event’s effects.

“High Risk Activities” means activities where use or failure of the Cloud Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

“Key Terms” means the Effective Date, Governing Law, Courts, and other terms specified by the parties as “Key Terms” on the Cover Page.

“Laws” means all applicable laws, regulations, rules, court orders, and other binding governmental requirements.

“Order” means an order for Customer’s access to the Cloud Service, Support, or Professional Services that is executed by the parties and references this Agreement.

“Professional Services” means training, migration, or other professional services that Provider furnishes to Customer in connection with the Cloud Service.

“Provider” means PCX Analytics LLC, a Texas limited liability company.

“Provider Software” means any proprietary apps or software that Provider distributes to Customer as part of the Cloud Service.

“Recipient” means the party receiving Confidential Information. Each party may be a Discloser, a Recipient, or both with respect to different Confidential Information.

“Security Measures” means the technical and organizational security measures described in Schedule 2 of the DPA.

“Sensitive Data” means (a) protected health information under HIPAA; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other government-issued identification numbers; and (d) special categories of data under GDPR Article 9(1).

“Service Level Agreement” or “SLA” has the meaning set forth in Section 6.2 (Service Level).

“Statement of Work” means a statement of work for Professional Services that is executed by the parties and references this Agreement.

“Subscription Term” means the term for Customer’s use of the Cloud Service, as specified in an Order.

“Support” means support for the Cloud Service as described in Section 6.1.

“Terms of Service” means these PCX Analytics Terms of Service, as amended from time to time.

“Third-Party Platform” means any product, add-on, or platform not provided by Provider that Customer uses with the Cloud Service.

“Trials and Betas” means access to the Cloud Service or features on a free, trial, beta, or early access basis.

“Usage Data” means Provider’s technical logs, data, and analytics about Customer’s use of the Cloud Service, excluding Customer Data.

“User” means anyone that Customer allows to use its accounts for the Cloud Service, who may include (a) employees, advisors, and contractors of Customer and its Affiliates and (b) others if permitted in this Agreement, the Documentation, or an Order.

“Virus” means viruses, malicious code, ransomware, or similar harmful materials.