Terms of Service
Please read these terms of service (these “Terms”) carefully, as it sets forth the terms and conditions of the contract between you as well as your employer or other person or entity you serve or represent or on whose behalf, or for whose benefit, you use the Platform (individually and collectively, “You”), on one hand, and Ascen Inc. on behalf of itself, Ascen Workforce, LLC, and any other controlled subsidiary or affiliate of the foregoing that operates, maintains, or enforces rights in connection with the Platform (“Ascen”), on the other hand. These Terms govern Your use of the Ascen’s website and platform.
IMPORTANT – READ CAREFULLY THIS NON-LIMITING SUMMARY OF CERTAIN KEY PROVISIONS OF THESE TERMS OF SERVICE. YOU MUST ALSO READ THESE TERMS OF SERVICE IN FULL:
You must be at least 18 years of age to use the Platform;
You agree to use the Platform and related data solely for internal, non-resale purposes and solely in connection with the services provided by Ascen;
You agree not to reverse-engineer, copy, or disseminate any information related to the Platform or how it operates, and to use the Platform solely in a manner intended by Ascen;
You agree that these Terms, and Your License to use the Platform, may be revised at any time for any reason by Ascen or may be terminated based upon Your failure to comply with these Terms;
You agree that Ascen will be entitled to an immediate injunction or other equitable relief against You, and all of its attorneys’ fees and other expenses, in connection with enforcing these Terms and/or Ascen’s rights with respect to its intellectual property, computer code, source code, confidential information, or trademarks;
You agree to use the Platform at Your own risk, that the Platform is provided as-is without any warranty or representation, and that the Platform is subject to the limitations of liability set forth herein;
You agree that Ascen has no responsibility for any third-party products, services, software, functionality, or content that may be incorporated into or used with the Platform; and
You agree to the restrictions set forth herein on Your use of, or access to, the Platform and to indemnify, defend, and hold harmless Ascen in connection with any claims related to Your use of the Platform.
1. Interpretation and Application
The rights provided to Ascen pursuant to these Terms apply to, and may be exercised by or on behalf of, any of Ascen’s Related Parties. The term “Related Parties” means direct and indirect affiliates, parents, and subsidiaries and their respective owners, stockholders, other equity holders, officers, agents, employees, and directors as well as any and all, whether direct or indirect, predecessors-in-interest, successors-in-interest, suppliers, vendors, manufacturers, developers, distributors, contractors, partners, agencies, and customers.
Any obligation on You not to do something includes an obligation that You not do, attempt to do, or allow that thing to be done or otherwise contribute to, assist, induce, entice, encourage, or incentivize such thing to be done.
Unless the context otherwise requires, the word “or” is disjunctive but not exclusive; the word “including” (and other versions of “include”) means “including, but not limited to,”; and the words “shall” and “will” have the same mandatory meaning to impose obligations.
The words “Disclose” or “disclose” each mean to, in whole or in part, transfer, transmit, describe, reveal, make known, provide access to, provide another the means of discovering, learning, or receiving information or to contribute to, induce, entice, encourage, or incentivize any of the foregoing.
Any obligation regarding confidential information (e.g., to protect it or keep it confidential) includes preventing it from being disclosed. Any reference to the Platform (as defined below) applies individually and collectively to the entire Platform, any work or development derived from the Platform, or any portion of the platform, including any information on or that constitutes part of the Platform.
2. Your Agreement to be Bound; Commencement of Term
You agree to be bound by these Terms (including all agreements and policies of Ascen) by accessing the Platform, opening, and accessing the Software, logging into the Site as a user, or clicking the “Agree” button. The term (“Term”) of these Terms will commence when You first do any of the foregoing.
And You reaffirm Your agreement to these Terms each time You do any of the foregoing.
If You do not agree to these Terms, do not use the Platform (not even for trial use purposes); close out of, and delete, all instances of the Software; and disconnect all Your devices from the Platform.
3. Incorporated Terms, Policies, and Agreements
These Terms include and incorporate the content and terms of the related provisions, conditions, agreements, or policies available at https://ascen.com (the “Site”). By way of non-limiting example, You accept and agree to be bound and abide by these Terms and Ascen’s “Privacy Policy,” which can be found at the Site or are available upon request to support@ascen.com.
4. Scope
These Terms apply to the following, each of which constitute part of the “Platform”:
The Ascen Site;
The Ascen software application and code (“Software”);
All databases, algorithms, third-party integrations, and other functionality to which the Software and Site are connected;
All text, images, graphics, sounds, audio, music, videos, audiovisual combinations, blogs, social media, interactive features, collections, or other material You may view on or access through the Platform;
All computer software associated with the Platform (including algorithms, source code, object code, compilation code or software, build tools or data, data structures, databases, firmware, hardware, and any related data, information, or code as well as all updates, patches, data, or new versions of the Platform);
Data input to or via the Platform, stored in connection with the Platform, related to the Platform, modified by the Platform, transmitted by the Platform, or exported in any way (e.g., printing, creating documentation or reports, or displaying) from the Platform;
The operation and layout off the Platform, including the manner and process by which information is input, stored, displayed, analyzed, presented, or otherwise processed;
The look and feel of the Platform (e.g., icons, colors, screen layout, and graphical user interface or GUI);
Instructions, documentation, and other materials describing or associated with the Platform;
Legal notices; and § all information regarding You, Your login credentials, or Your account (if applicable) on the Site or Platform (“Registration”).
5. Your Representation and Warranties
You represent and warrant that:
All information You submit to Ascen or the Platform is and will be true and accurate and You have all necessary rights and licenses to submit such information;
You are 18 years of age or older;
You will use the Platform only as intended by Ascen;
You have read all terms and disclaimers set forth in these Terms prior to using the Platform and agree to be bound by these Terms; and
You will not use the Platform, or submit information to the Platform, in violation of any law or rights of any other person or entity.
6. Disclaimer: Third-Party Services, Hardware, or Software
The Platform may use or incorporate third-party services, hardware, or software (“Third-Party Services or Products”). Ascen is not responsible in any manner for any Third-Party Services or Products.
FOR THE AVOIDANCE OF DOUBT, ASCEN PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO SUCH THIRD-PARTY SERVICES OR PRODUCTS, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE.
Ascen does not provide any warranty, maintenance, technical, or other support for any Third-Party Service or Product. Ascen does not warrant the accuracy, timeliness, sufficiency, effectiveness, or suitability of any Third-Party Services or Products, which You use at Your own risk. Accordingly, Ascen is not responsible for Your use of any Third-Party Service or Product or any personal injury, death, property damage (including to Your home), or other harm or losses arising from or relating to Your use of any Third-Party Service or Product.
You agree that You have no recourse against Ascen for any Claim or Loss arising out of or related to any Third-Party Service or Product. Claims against third-parties in connection with Third-Party Services or Products must be brought against the applicable third-party (e.g., the manufacturer or provider of such service) and not Ascen. For the avoidance of doubt, the mere inclusion of links to any third-party website in or with the Platform does not create or imply any affiliation between Ascen and such website or the entity that operates the website.
7. Third-Party Software Licenses
Certain software included in, distributed with, or downloaded in connection with the Platform may comprise third-party proprietary software or code that is subject to separate license terms (“Third-Party Software”). All such Third-Party Software may comprise or include software or software components that are derived, in whole or in part, from software that is distributed as free software, open source software, or under similar licensing or distribution models (collectively, “External Software”).
Your use of External Software is subject in all cases to the applicable licenses from the applicable External Software providers, which will take precedence over the rights and restrictions granted in these Terms solely with respect to such External Software and solely to the extent required by such licenses. You will comply with the terms of all applicable External Software licenses, if any. For example, copyrights to open source software are held by their respective copyright holders indicated in the copyright notices in the corresponding source files.
FOR THE AVOIDANCE OF DOUBT, ASCEN PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO SUCH EXTERNAL SOFTWARE, INCLUDING WITH RESPECT TO FUNCTIONALITY OF SUCH EXTERNAL SOFTWARE.
Ascen does not provide any warranty, maintenance, technical, or other support for any External Software. Accordingly, Ascen is not responsible for Your use of any External Software or any personal injury, death, property damage (including to Your home), or other harm or losses arising from or relating to Your use of any External Software. You agree that You have no recourse against Ascen for any Claim or Loss arising out of or related to any External Software. Claims against third-parties in connection with External Software must be brought against the applicable third-party (e.g., the manufacturer or provider of such service) and not Ascen.
8. Data Use
Certain features associated with the Platform use internet protocols and may send to the appropriate systems computer information, such as Your internet protocol address; the type of operating system, browser, and name and version of the software You are using; or the language code of the device where You installed or access the Platform. Ascen or its designees may use this information to make the internet-based services available to You.
9. Your Personal, Limited License to Access the Platform
During the period of time when You maintain an active, paid-up account with Ascen and contingent at all times upon Your compliance with these Terms: Ascen grants to You a limited, non-exclusive, personal, freely revocable right to access the Platform in object code or executable form only, solely for internal, non-resale purposes and solely in connection with the services provided by Ascen (the “License”). The License is strictly limited to the number of users agreed to in writing by the parties; in the absence of such written, agreement, You may install any Software, and access the Platform, from a single workstation or mobile device only. Where necessary, You may temporarily download one copy of employment documents or reports in either MS Word or PDF form from the Platform for internal, noncommercial, transitory viewing only and not for further reproduction, publication, or distribution.
10. Ownership and Intellectual Property
The Platform is proprietary to Ascen and its licensors. All right, title, and interest in and to the Platform, including all intellectual property and all other legal rights, titles, and interests, do and will remain with Ascen and its licensors.
For the avoidance of doubt, and by non-limiting example, You acknowledge and agree that the source and object code of the Platform and the format, directories, queries, databases, algorithms, structure, and organization of the Platform are the intellectual property and proprietary and confidential information of Ascen and its licensors only. All rights not expressly granted under these Terms are reserved to Ascen and its licensors. Neither these Terms, nor any rights or obligations provided in them, constitute a sale or other transfer of any right, title, or interest in or to the Platform or any portion thereof.
All trademarks, service marks, trade names, trade dress, logos, slogans or other identifiers of source, endorsement, or affiliation—and the goodwill associated therewith—included or displayed in or around the Platform (“Marks”) are the exclusive property of Ascen; with the exception of third-party marks expressly identified by Ascen as the property of another third-party. You are not permitted to use any of the Marks, or any third-party mark, without the express, prior, written consent of Ascen.
11. Restrictions on Use
Only persons 18 years of age or older and that are authorized to use, input data into, or interface in any way with the Platform, and You will not permit any person who does not meet both requirements from doing so.
You may not do any of the following, except to the extent specifically and expressly allowed in Section 9:
Access or use the Platform without authorization or other than as specifically set forth in these Terms or allow any other person or entity other than You to access or use the Platform;
Attempt to use the Platform for Your, or Your company’s, gain independent of Ascen or as otherwise not in furtherance of the interests of Ascen;
Use the Platform for any advertising purpose or submit any advertisement or solicitation through or to it;
Reverse engineer, decompile, disassemble, or access any portion of the Platform;
Alter, copy, download, scrape, remove, or acquire any data in, or associated with, the Platform, including accessing, using, or copying any portion of the Platform using automated mechanisms, such as bots, spiders, scrapers, web crawlers, or indexing agents;
Reproduce, publicly display, publicly perform, download, use, copy, modify, reconfigure, divide, create derivative works of, sublicense, or distribute any portion of the Platform;
Remove or modify any markings, notices of rights, or Marks from the Platform or any documents or information associated with the Platform; § make the Platform available in any manner to any third-party for use in the third-party’s business operations or otherwise, including re-hosting or using the Platform on equipment, operating systems, or platforms not approved by Ascen;
Transmit to the Platform any information that contains any viruses or other computer programming routines that may damage, interfere with, intercept, or take any system or data associated with the Platform;
Send to or otherwise impose an unreasonably large amount of information or requests on the Platform;
Use the Platform in any manner that could disable, overburden, damage, or impair the Platform (including any related website) or interfere with any other authorized party’s use of the Platform, including their ability to engage in real time activities through the Platform;
Use the Platform in any way that violates any applicable federal, state, local, or international law or regulation (including any laws regarding the export of data or software to and from the United States or other countries);
Use the Platform for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;
Use the Platform to send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms or any other rights or obligations of a third-party;
Use the Platform to transmit, or procure the sending of, any advertising or promotional material without the express, prior, written consent of Ascen, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation;
Use the Platform to impersonate, or to attempt to impersonate, any person or entity other than Yourself, including Ascen, an Ascen representative, any other client, or any other person or entity (including by using e-mail addresses, license keys, or login credentials associated with any of the foregoing);
Engage in conduct that is harmful, unethical, fraudulent, deceptive, or offensive; or
Use the Platform to engage in any other conduct that restricts or inhibits any authorized user’s use or enjoyment of the Platform, or that may harm Ascen or its authorized users or clients, or expose any of the foregoing to reputational harm or liability.
12. Prohibited Countries
The Platform is not open to users who live in countries that are prohibited by law, regulation, treaty, or administrative act from entering into trade relations with the United States. It is solely Your responsibility to determine if You may lawfully use the Platform in any particular country or jurisdiction.
13. Term and Termination; Updates to Agreement
Unless terminated as provided in this Section 13, and subject to any update or modification as set forth in this Section, these Terms will continue in perpetuity.
You agree that Ascen may revise, update, or change these Terms at any time in its sole and complete discretion. Updates may be posted publicly on the Site (or other operative website of Ascen) or distributed to You via the Platform or other means. If there is any ambiguity as to which version of these Terms applies,
You agree that the terms of the most recent version will apply, by default, to the entire time period during which You used of the Platform. You agree that Ascen may issue additional policies related to the Platform.
Ascen will have the right to terminate these Terms without notice if You fail to comply with these Terms.
Additionally, by way of non-limiting example, Your right to access the Platform, and Your Registration Information, will terminate upon any of the following: Your failure to comply with any term or condition of these Terms, Your unlawful use of the Platform, or Your abusive conduct involving the Platform that is outside the normal contemplated use thereof.
The foregoing includes any acts induced by You, contributed to by You, or conducted with Your participation, direction, control, or assent. Upon termination of the License granted herein, You must cease all use of the Platform and destroy all copies (physical or electronic) of any portion of the Platform (including the Software and all component parts and copies thereof and all related materials, data, and documents) and certify to Ascen, if so requested by Ascen, that all the foregoing have been so destroyed.
The License to You will immediately terminate upon Your breach of any of these Terms, unless such breach is curable and is actually and immediately cured by You, which will be determined in Ascen’s sole and complete discretion. These remedies are cumulative and in addition to any other remedies available to Ascen.
All terms of Sections 6, 7, 8, 10, 11, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29, 30, and 31, as well others that by their nature are intended to or would be expected to survive, will survive termination of these Terms.
14. Your Registration and Termination
You may be required to create an account or update your account on the Platform. You may be asked to complete an initial questionnaire, or to provide information to Ascen, to begin or continue using the Platform.
Ascen may terminate Your Registration at any time without notice if You fail to comply with these Terms. You agree that if Your use of the Platform is terminated pursuant to these Terms, You will not attempt to access or use the Platform, including under any name or entity, real or assumed.
15. Registration and Security
You agree and acknowledge that Your Registration information on the Platform is for Your use only and not for the use of any other person or entity. You are solely responsible for any activity in connection with Your Registration information and credentials and agree to maintain Your secure password and not use anyone other person’s password or login credentials.
You further agree not to share or sell Your password or login and to notify Ascen if You suspect unauthorized use of Your Registration information or credentials. You will immediately alert Ascen to any unauthorized use of Your Registration information or credentials by e-mailing Ascen at support@ascen.com.
16. Limited Warranty and Disclaimer
YOU EXPRESSLY ACKNOWLEDGE THAT USE OF THE PRODUCT IS AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NEITHER ASCEN NOR ITS SUPPLIERS, DISTRIBUTORS, OR CUSTOMERS, NOR ANY OF THEIR RESPECTIVE RELATED PARTIES, MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE PLATFORM, ITS USE, OR THE RESULTS OF SUCH USE. ALL WARRANTIES AND CONDITIONS OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. UNDER NO CIRCUMSTANCES WILL ASCEN OR ANY OF ITS RELATED PARTIES BE LIABLE UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OR STATUTORY OR CIVIL PENALTIES OF ANY KIND—INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF MONEY, REVENUES, PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES RESULTING FROM THESE TERMS OR THE INSTALLATION, MAINTENANCE, PERFORMANCE, DEFECT, FAILURE, OR INTERRUPTION OR USE OF THE PLATFORM OR ANY PRODUCT OR SERVICE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), EVEN IF ASCEN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THESE TERMS, ASCEN OR ANY OF ITS RELATED PARTIES IS FOUND TO BE LIABLE, SUCH LIABILITY (INCLUDING ANY DAMAGES OR REMEDY) IS AND WILL BE LIMITED EXCLUSIVELY TO A MAXIMUM OF ONE THOUSAND U.S. DOLLARS ($1,000.00) IN THE AGGREGATE.
Without limiting the foregoing, Ascen does not warrant or represent that the operation of the Platform will be uninterrupted or error-free or that any defect within the Platform will be corrected. Furthermore, Ascen does not warrant or make any representation regarding the results of Your use of the Platform in terms of capability, correctness, accuracy, reliability, or otherwise; that the Platform will meet Your requirements; or that the Platform is secure. No presentation, specimen, information, or advice—whether oral or written—given by Ascen, any representative of Ascen, any client, or any other person or entity will create a warranty.
For the avoidance of doubt, neither Ascen nor any of its Related Parties will have liability with respect to the content of the Platform, including with respect to errors or omissions contained in the Platform or any claim related to the following: libel, business interruption, personal injury, loss of privacy, disclosure of confidential information, or infringement or violation of any third-party’s rights of publicity, intellectual property, privacy, or moral right.
You release and waive all claims against Ascen and any of its Related Parties from any and all Claims or Losses arising out of Your use of the Platform. If You are a California resident, You waive any rights You may have under § 1542 of the California Civil Code—or any similar law or right—which reads: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
You agree to release unknown claims and waive all available rights under California Civil Code § 1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, the release in this Section covers all such claims regardless of the negligence of Ascen or any of its Related Parties.
Some states or jurisdictions do not allow the exclusion or limitation of incidental, consequential, or special damages or the exclusion of implied warranties or limitations on how long a given warranty may last, so the above limitations may not apply to You. The limitations provided in these Terms are intended to apply to the fullest extent allowable under applicable law, and You acknowledge that the terms will be construed and enforced as necessary to limit Ascen’s and any of its Related Party’s possible liability to the amount set forth herein.
17. Reliance on Information Posted
The information presented on or through the Platform is made available solely for general information purposes. Ascen does not warrant the accuracy, completeness, or usefulness of this information. Any reliance You place on such information is strictly at Your own risk. Ascen disclaims all liability and responsibility arising from any reliance placed on such materials by You or any other visitor to the Platform or by anyone who may be informed of any of its contents.
The Platform may include content provided by third-parties, including materials provided by other member users and third-party licensors, syndicators, aggregators, or reporting services. All statements or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Ascen, are solely the opinions and the responsibility of the person or entity providing those materials. Such materials do not necessarily reflect the opinion of the Ascen. Ascen is not responsible, or liable to You or any third-party, for the content or accuracy of any materials provided by any third-parties.
18. Changes to the Platform
Ascen may update the content on the Platform from time to time, but its content is not necessarily complete or comprehensive. Any of the material on the Platform may be out of date at any given time, and Ascen is under no obligation to update such material.
19. Information About You and Your Visits to the Platform
All information collected on the Platform is subject to the Privacy Policy. By using the Platform, You consent to all actions taken by Ascen with respect to Your information in compliance with the Privacy Policy.
20. Linking to the Platform and Social Media
Features You may link to the Site, provided You do so in a way that is fair and legal and does not damage, or otherwise unfairly take advantage of, the reputation of Ascen or any Ascen Related Party. You must not establish a link in such a way as to suggest any form of affiliation, approval, or endorsement by Ascen or a Ascen Related Party without prior, express, written consent from Ascen.
Subject to the foregoing, You must not:
Establish a link from any website that is not owned by You;
Cause the Site or portions of it to be displayed on, or appear to be displayed by, any other website, by for example, framing, deep linking, or in-line linking; or
Otherwise take any action with respect to the materials on the Platform that is inconsistent with any other provision of these Terms.
The website from which You are linking, or on which You make certain content accessible, must comply in all respects with these Terms and any content standards of Ascen. You agree to cooperate with Ascen in causing any unauthorized framing or linking immediately to stop.
Ascen reserves the right to withdraw linking permission without notice.
You agree that Ascen may disable or block any link at any time, for any reason, without notice.
21. Links from the Platform
If the Platform contains links to other websites and resources provided by third-parties, such links are provided for Your convenience only. Ascen has no control over the contents of those websites or resources.
Ascen accepts no responsibility for them or for any loss or damage that may arise from Your use of them. If You decide to access any of the third-party websites linked from the Platform, You do so entirely at Your own risk and subject to the terms and conditions of use for such websites.
22. Indemnification
YOU AGREE TO, BY ASSUMING AND PAYING IMMEDIATELY ON DEMAND, INDEMNIFY, DEFEND, AND HOLD HARMLESS ASCEN AND ALL OF ITS RELATED PARTIES FROM AND AGAINST ANY AND ALL ALLEGATIONS, NOTICES, CLAIMS, LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND FEES (INCLUDING REASONABLE ATTORNEYS’ FEES) (EACH INDIVIDUALLY A “CLAIM OR LOSS” OR COLLECTIVELY “CLAIMS OR LOSSES”) RESULTING FROM, ARISING FROM, OR IN CONNECTION WITH THE FOLLOWING: YOUR USE OF THE PLATFORM, YOUR VIOLATION OF THESE TERMS, OR YOUR INTERACTION WITH ASCEN. YOU AGREE AND ACKNOWLEDGE THAT ASCEN WILL NOT INDEMNIFY YOU IN ANY WAY IN CONNECTION WITH THESE TERMS, THE PLATFORM, OR YOUR USE OF THE PLATFORM, INCLUDING IN CONNECTION WITH AN UNAUTHORIZED PARTY ACTING ON YOUR BEHALF.
23. Security and Privacy
Ascen utilizes encryption and Secure Sockets Layer (SSL) protocol, which are provided and controlled by third-parties, for financial transactions.
Ascen seeks to protect sensitive personal data from unauthorized access, use, and disclosure using appropriate physical, technical, organizational, and administrative security measures based on the type of personal data and how Ascen processes that data. However, the Platform is subject to several factors that Ascen cannot control (e.g., communication lines over the internet); as such, Ascen cannot guarantee that the Platform will be absolutely secure.
You acknowledge and agree that the internet is neither more nor less secure than other communications media, including mail, facsimile, and telephone services—all of which can be intercepted and otherwise compromised.
You have been advised and agree to assume that all unencrypted internet communications are not secure.
24. Consent to Electronic Communications and Information
You Provide You consent to receive unencrypted and unsecured e-mail and text message (SMS) communications from Ascen. You agree that any notices, agreements, disclosures, or other communications that Ascen provides to You by e-mail or other electronic means (including through the Platform) satisfy any legal communication requirements.
Ascen has the right, but not the duty, to monitor Your use of the Platform, including any information You provide. Any information You send to Ascen by e-mail may be misdirected or intercepted by unintended recipients, and thus it may not constitute a confidential medium of communication. If You have confidentiality concerns, You will use an alternative mode of communication and not transmit any sensitive or confidential information to Ascen via e-mail.
The Platform may provide You the option to communicate with Ascen through e-mail. This option is, or will be, provided solely for Your convenience, and it may not be secure. By using e-mail, You agree that Ascen is not responsible for the privacy of any e-mail messages. Ascen does not warrant the confidentiality or security of any e-mail transmission.
You are responsible for all information You send through or to the Platform. This means that You agree not to transmit information that is illegal, threatening, libelous, defamatory, obscene, ethnically or racially offensive, discriminatory, profane, invasive of the rights of publicity or privacy of another person, or violates any law, confidentiality agreement, or legal right of any person or entity. Ascen may edit, delete, modify, or ban such information and take necessary legal action.
25. Confidentiality
“Ascen Platform Confidential Information” means any non-public information belonging to, or in the possession, custody, or control of Ascen or any of its Related Parties and relates to the operation of the Platform (e.g., contained or stored in or on, the Platform). “Ascen Platform Confidential Information” also includes instructions or feedback provided by the Platform or any related Software, sensitive information, trade secrets, know-how, inventions, techniques, data, research, developments, specifications, samples, patterns, designs, drawings, documents, data, personal information, financial information, analyses, or operational information. “Ascen Platform Confidential Information” does not include any information that, without breach of these Terms, breach of any other obligation, or other wrongful or unreasonable act (i) is or becomes a part of the public domain; (ii) based upon conclusive, documentary evidence, was known to You at the time You received it from Ascen; or (iii) is independently developed by You without reference the Ascen Platform Confidential Information.
Even if Ascen Platform Confidential Information may fall under one of the foregoing exceptions, You will not disclose to any third-party that such information is used in any way by Ascen or any of its Related Parties, the manner in which such information is used, or that the information is considered a trade secret of Ascen or any of its Related Parties. You will not attempt to use any such information, or other Ascen Platform Confidential Information, as a guide or reference to assemble publicly available pieces of information together or to argue that such information is not Ascen Platform Confidential Information. You will use Your best efforts to preserve and protect the confidentiality of the Ascen Platform Confidential Information at all times, both during the term of these Terms, and for a period of at least five (5) years after termination of these Terms; provided, however, that You will keep confidential in perpetuity all computer code or source code, all Ascen Platform Confidential Information stored in Ascen databases, and all trade secrets of Ascen or any of its licensors or Related Parties. For the avoidance of doubt, the restrictions set forth above (including in Section 11 (Restrictions on Use)) will survive the termination of these Terms in perpetuity.
You will not use or disclose any Ascen Platform Confidential Information other than solely and directly in the ordinary course of using the Platform. You will not use or disclose any Ascen Platform Confidential Information for any purpose following expiration or termination of these Terms. As a non-limiting example, You will not incorporate, seek to incorporate, or allow to be incorporated any Ascen Platform Confidential Information into any intellectual property or development of any person or entity other than Ascen, including into any joint intellectual property or development.
You will notify Ascen in writing immediately upon discovery of any unauthorized use or disclosure of Ascen Platform Confidential Information or any other breach of these Terms by anyone and will cooperate with Ascen in every reasonable way to regain possession of Ascen Platform Confidential Information and prevent any further unauthorized use.
Except to the extent prohibited by applicable law: upon request of Ascen, You will promptly return (or destroy, if requested by Ascen) all Ascen Platform Confidential Information and all materials incorporating or referencing any of the foregoing. If requested by Ascen, You will provide a written certification, signed under penalty of perjury, to Ascen that You have done so. If Ascen makes no request for Ascen Platform Confidential Information to be returned or destroyed, You will permanently destroy all of the foregoing Ascen Platform Confidential Information within seven (7) calendar days following termination or expiration of these Terms.
If You are legally required to disclose any of the Ascen Platform Confidential Information, then, prior to such disclosure, You will assist Ascen in (i) seeking a stipulation or entry of a protective order to prevent disclosure or, if prevention is not reasonably practicable, to limit disclosure; (ii) if disclosure is required, seeking a stipulation or entry of a confidentiality order to protect the information required to be disclosed; (iii) cooperate with the Ascen to facilitate Ascen’s review, prior to disclosure, of all Ascen Platform Confidential Information to be disclosed for responsiveness, privilege, confidentiality, and privacy; and (iv) at all times undertake all reasonable efforts to protect and limit the amount and extent of Ascen Platform Confidential Information that must be disclosed, including providing confidentiality designations or stamps and redactions requested by Ascen. In all circumstances, You will disclose the Ascen Platform Confidential Information only to the minimum extent necessary to comply with the applicable legal requirements.
26. Ascen’s Entitlement to Injunctive Relief
You acknowledge and agree that the Ascen Confidential Information and all intellectual property and other legal rights associated with the Platform are and will be, of special and unique character, which gives it a peculiar and economic value, and that any breach of these Terms, or access to or disclosure of such information, cannot and will not be adequately compensated by damages in an action at law, will lead to damages that are difficult or impossible or calculate or measure, and will cause Ascen immediate and irreparable harm and injury. Accordingly, Ascen will be entitled, in addition to all other remedies available at all, to a restraining order, injunction, specific performance, and other equitable relief necessary to redress any actual or threatened breach of these Terms regardless of any applicable legal standard for the issuance or grant of the foregoing. By way of non-limiting example, You will and do hereby waive any requirement that Ascen submit proof of the economic value of any Ascen Platform Confidential Information or post a bond or any other form of security. Nothing contained herein will be construed as a waiver by Ascen of any other rights or remedies under the law or in equity.
27. Deadline for Claims or Causes of Action
You agree that regardless of any statute or law to the contrary, any claim or cause of action You may have arising out of or related to any use of the Platform or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
28. Choice of Law
The laws of the state of Delaware, without giving effect to its conflict of law principles, govern all adversarial proceedings arising out of these Terms. Subject to the dispute resolution provisions set forth below, if You take legal action against Ascen or any of its Related Parties in connection with any action or dispute relating to these Terms, You will file such action only in a dispute resolution entity or state or federal court with jurisdiction over Boston, Massachusetts.
29. Attorneys’ Fees
Notwithstanding the foregoing, Ascen will be entitled to collect its reasonable attorneys’ fees and other costs and expenses incurred (i) in seeking an injunction (or other legal or equitable relief) to protect its Platform, Software, other computer code, or source code, Ascen Platform Confidential Information, Marks, or any other of its intellectual property; (ii) in, on a claim-by-claim basis, defending against any claim brought by You against Ascen in which You do not prevail following the exhaustion of all final appeals or potential appeals; or (iii) in collecting and fees or payments due by You to Ascen.
30. Export Regulation
The Platform may be subject to United States export control laws, including the Export Control Reform Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Platform to, or make the Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Platform available outside the US.
31. United States Government Rights
The Platform is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if You are an agency of the United States Government or any contractor therefor, You receive only those rights with respect to the Software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other United States Government licensees and their contractors.
32. Other Provisions
The Section headings used herein are for convenience of reference only and do not form a part of these terms and conditions, and no construction or inference will be derived therefrom.
You may not assign, novate, or otherwise transfer any rights, obligations, or other provisions of these Terms or Your Registration to any other person or entity. Ascen, however, may transfer, assign, or novate any rights, obligations, or provisions of these Terms at any time without notice to or consent from You.
You agree that: (i) if any provision of these Terms is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded; (ii) if an unenforceable provision is modified or disregarded in accordance with this Section, then the rest of these Terms will remain in effect as written; and (iii) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
No waiver by Ascen of any of any privacy policy or these Terms will be effective unless it is in writing and signed by an authorized representative of Ascen. No such waiver will be deemed a further or continuing waiver of such term or any other term or condition of use.
This Agreement, and the policies and agreements incorporated in it, constitutes the entire agreement between You and Ascen as it relates to Your use of the Platform. Neither Ascen nor any of its Related Parties has made any promises, statements, or assurances other than as expressly set forth herein. You acknowledge and represent that you have not relied, and will not rely, on any promises, statements, or assurances other than as expressly set forth herein. You do not have, will not have, and will not assert any claim based on any implied term, provision, promise, statement, or assurance.
The relationship between Ascen and You is that of licensor and licensee, and it is not the purpose or intention of these Terms or of the parties to create a partnership, joint venture, principal-agent, or other relationship for any purpose whatsoever. To the extent any terms are used by Ascen or You that might suggest otherwise, it is expressly understood that they refer only to the spirit of cooperation and do not describe or expressly or impliedly the legal status of licensor and licensee under these Terms.
