SOLVER’S TERMS OF SERVICE

Welcome to Solver’s Cloud Service and related websites. These Terms of Service (“Terms”) cover your use and access to our websites, and our software (collectively, “Services”). By accessing and using our Services, you agree to all of the terms outlined herein. If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms. These Terms are effective as of the date you click “Accepted and Agreed To” (the “Effective Date”). If at any time you do not accept all of these Terms, you must stop using the Services immediately.

Our Responsibilities. Solver, Inc. (“Solver”) will make the Services available to you pursuant to this agreement, and will use reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: planned downtime, and any unavailability caused by Internet service provider failures occurring outside of Solver’s control, including any unavailability of Microsoft’s Azure data centers which is used by Solver’s Services.
Payment.
You are responsible for paying the fees associated with using the Services, and you are responsible for such monthly or annual service fees as are required to use your account. If you are on an annual service plan, you will be informed within a reasonable period of time, before the renewal date via email that your plan is about to renew. You can renew your service at any time, including prior to being informed that your service will end, provided that payment must be received prior to the end of the current service period to avoid any disruption of your access to the Services. We may modify the fees for Services from time to time, but we will give you adequate notice that such a modification will occur. The modification in fees will only be effective for the following service period. Upon payment for the Services, Solver grants you a nonexclusive, nontransferable, nonsublicensable, worldwide, limited, license to use the Services during the term of the service.
Payment for the Services may be collected on Solver’s behalf by a third party authorized to resell the Services (“Partner”). For purposes of Section 2(a), a payment owed for the Services is deemed to have been received by Solver when such Partner receives payment.
Customer shall be responsible for all sales taxes and other similar taxes (e.g., gross receipts, etc.) imposed on the transactions contemplated by this Agreement by any federal, state or local governmental entity in which Customer operates, excluding taxes on the Company’s net income (“Customer Taxes”).  If the Company becomes responsible for paying or collecting Customer taxes, the appropriate amount shall be invoiced to and paid by Customer.
Service Level Agreement. In the event of a service failure related directly to Solver’s Services, Solver will issue you a credit equivalent to a proportion of the downtime. However, Solver will not issue a credit for planned downtime, or downtime strictly caused by Solver’s hosting platform, Microsoft Azure, or for occurrences outside of Solver’s control, such as a natural disaster, or external factors such as Internet downtime. Credits issued pursuant to the SLA apply to outstanding or future payments only and are forfeited upon termination of this agreement. Solver is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation termination of this agreement. Credits issued pursuant to the SLA are your sole remedy for the service failure in question. The SLA is hereby incorporated into this Agreement.
Materials, Software, & IP.
You recognize and agree that: (i) the content, and materials provided through the Services (collectively, the “Materials”) are the property of Solver or its licensors and are or may be protected by copyright, trademark, and other intellectual property laws; and (ii) you do not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for your use of the Services.
IP in General. Solver retains all right, title, and interest in and to the Services, including without limitation all software used to provide the Services and all logos and trademarks reproduced through the Services, with the exception of any third party plugins used in the Services which remain owned by the respective third party organizations. These Terms do not grant you any intellectual property rights in or to the Services, or any of its components.
Online Policies.
Acceptable Use Policy (“AUP”). As a user of the Services, you may not: (1) reproduce or publish any portion of the Services in any manner other than as expressly permitted in these Terms, (2) use the Services to create any derivative products, (3) resell, relicense, or redistribute the Services in whole or in part, (4) use the Services to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, (5) use the Services for any purpose that is defamatory, obscene, libelous, unlawfully threatening or unlawfully harassing. In the event of your material breach of the AUP, including without limitation any copyright infringement, Solver may suspend or terminate your access to the Services, in addition to such other remedies as Solver may have at law or pursuant to these Terms. Solver reserves the right to take any other remedial action it sees fit.
Privacy Policy. The Privacy Policy applies only to the Services and does not apply to any third party site or unrelated service, whether or not that service is linked to or used by the Services.
Azure Terms of Service: As a user of the Services, you agree to be bound by any applicable Terms of Service published by Microsoft governing usage of Azure Services. If Azure modifies any of its policies, you are responsible for abiding by the revised terms. If you do not approve of the revised terms, then you must stop using the Services immediately.
Term and Termination.
This agreement commences on the Effective Date, and continues until all subscriptions hereunder have expired or have been terminated.
Terms of Service Plans. The term of each service plan shall be as specified when you order the plan. Service plans will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
Solver may terminate this agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a lawsuit or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors. You may terminate this agreement for any reason with 30 days written notice.
Payment upon Termination. If you terminate your service before the service period is over, then you are not entitled to a refund or credit for any balance of the pre-paid subscription remaining. You are responsible for any unpaid fees for the Service for the entirety of the Term. You are also responsible for any fees incurred prior to the date of termination.
Your Data Upon Termination. Your data will remain available for the duration of the service period. If a request is made in writing within 30 days after the date of termination for your data, then we will make it available to you free of charge. After your service period has concluded, then we will have no further obligation to maintain your data.
User Content.
As a part of your use of the Services, you may be permitted to input comments, images, hyperlinks, questions, ideas, and other, similar content (“User Content”). The User Content does not include any financial information such as account information that is identifiable as related to you or any information covered under section 10. User agrees that this content will abide by the Acceptable Use Policy set forth above.  Furthermore, User grants Solver and its affiliates a nonexclusive, royalty free, perpetual, irrevocable, universal, worldwide, and fully sublicensable right to use, modify, adapt, publish, translate, create derivative works from, distribute, and display any such content in any media.
You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this Agreement and will not cause injury to any person or entity; and that you will indemnify Solver or its affiliates for all claims resulting from content you supply. Solver has the right but not the obligation to monitor and edit or remove any activity or content. Solver takes no responsibility and assumes no liability for any content posted by you or any third party.
Solver respects the intellectual property rights of others. If you believe that your work has been copied in any way that constitutes copyright infringement, please contact Solver at dmca@bi360.com in accordance with the requirements of the DMCA takedown notice under 15 U.S.C. § 512(c)(3).
Each Party’s Warranties.
Your Identity. You warrant: (i) that you have accurately identified yourself through your account and will maintain the accuracy of such identification; and (ii) that it is a corporation or other business entity authorized to do business pursuant to applicable law or an individual 18 years or older.
Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this agreement.
Disclaimers: SOLVER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE METHODOLOGIES USED OR THE ACCURACY, TIMELINESS, RELIABILITY OR COMPLETENESS OF ANY OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN ”AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. ANY RELIANCE ON OR USE BY USER OF THE SERVICES SHALL BE ENTIRELY AT USER’S OWN RISK. SOLVER MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES IN ANY JURISDICTION, STATE OR REGION. USER SHALL BE SOLELY RESPONSIBLE FOR OBTAINING ANY AND ALL NECESSARY LICENSES, CERTIFICATES, PERMITS, APPROVALS OR OTHER AUTHORIZATIONS REQUIRED BY FEDERAL, STATE OR LOCAL STATUTE, LAW OR REGULATION APPLICABLE TO USER’S USE OF THE SERVICES.
Limitation of Liability. SOLVER’S TOTAL LIABILITY AND USER’S EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, SHALL BE LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE TOTAL VALUE RECEIVED BY SOLVER FROM YOU FOR THE APPLICABLE SERVICE CONTRACT. THIS LIMIT IS CUMULATIVE AND ANY PAYMENTS UNDER THIS AGREEMENT WILL BE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THE LIMIT. SOLVER SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF SOLVER IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY. USER AGREES THAT THE LIMITATIONS SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, AND THAT THE SERVICES WOULD NOT BE PROVIDED TO USER ABSENT SUCH LIMITATIONS.
Data Management.
Access, Use, & Legal Compulsion. Unless we receive your prior written consent, Solver: (i) will not access or use your data other than as necessary to facilitate the Services; and (ii) will not give any third party access to your data. Notwithstanding the foregoing, Solver may disclose your data as required by applicable law or by proper legal or governmental authority. Solver will give you prompt notice, if legally allowed to do so, of any such legal or governmental demand and reasonably cooperate with you in any effort to seek a protective order or otherwise to contest such required disclosure, at your expense.
Your Rights. You possess and retain all right, title, and interest in and to your data, and Solver’s use and possession thereof is solely as your agent or licensee.
Retention & Deletion. Solver will retain all of your Data until deleted pursuant to a termination of the agreement, or pursuant to your written request in accordance with the Data Processing Terms in Exhibit 1.
Indemnification. USER AGREES TO INDEMNIFY AND HOLD SOLVER HARMLESS FROM AND AGAINST ALL CLAIMS OF THIRD PARTIES ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES BY THE USER, OR ATTRIBUTABLE TO USER’S BREACH OF THIS AGREEMENT; PROVIDED THAT SOLVER GIVES USER PROMPT WRITTEN NOTICE OF ANY SUCH CLAIM. SOLVER SHALL CONTROL THE DEFENSE AND ANY SETTLEMENT OF SUCH CLAIM, AND USER SHALL COOPERATE WITH SOLVER IN DEFENDING AGAINST SUCH CLAIM.
California Residents. User understands that he or she is waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, User acknowledges that he or she has read and understand, and User hereby expressly waive, the benefits of section 1542 of the civil code of California, and any similar law of any state, country or territory, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
Export Controls. The Services offered herein may not be exported, in violation of any Laws, (1) into any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order. You represent and warrant that you are not located in, under the control of, or a national or resident of any such country, or on any such list.
General Terms.
Notices. Solver may send notices pursuant to this agreement to the email address associated with a user’s account, and such notices will be deemed received one day after they are sent. You may send notices pursuant to this agreement to Solver, and such notices will be deemed received one day after they are sent.
Amendment. Solver may amend this Agreement (including any applicable SLA and the Privacy Policy) from time to time by posting an amended version at its website and sending you written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice. Your continued use of the Service following the effective date of an amendment will confirm your consent thereto. If you do not agree to the revised terms, then you must stop using the Service immediately. You will not be entitled to a refund for the early termination.
Force Majeure. Solver is not liable for loss of use of the Services caused by a condition outside of Solver’s control (such as a natural disaster, or Internet downtime) that was beyond Solver’s reasonable control.
No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
Assignment & Successors. Neither party may assign this Agreement or any of its rights or obligations here under without the other’s express written consent, except that either party may assign this Agreement to the surviving party in a merger of that party into another entity. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.
Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of California, applicable to agreements executed and to be performed solely within California. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the United States District Court for the Central District of California, Western Division and the Superior and Municipal Courts of the State of California, Los Angeles County in any litigation arising out of or relating to this Agreement or its subject matter.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
Entire Agreement. This Agreement, including Exhibit 1 attached hereto, sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.


 

Exhibit 1 – Data Processing Terms
Purpose
This Exhibit supplements the terms and conditions in the Agreement as they relate to Solver’s Processing of Personal Data and compliance with Data Protection Law.

 

Definitions
Capitalized terms used but not defined in this Exhibit have the meaning given in the Agreement.  Other terms in this Exhibit, which are not defined in the Agreement or this Exhibit, shall have meanings consistent with any corresponding terms in Data Protection Law.

 

“Customer” means the company or other legal entity on whose behalf you have entered into the Agreement, or if you are an individual entering into the Agreement on your own behalf, you.
“Customer Personal Data” means Personal Data received from, or on behalf of, Customer by Solver in its performance of the Services.
“Data Protection Law” means any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, applicable to Customer or Solver, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”). An identifiable natural person is one who can be identified, directly or indirectly, in particular by referencing an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Personal Data, whether transmitted, stored, or otherwise Processed.
“Privacy Shield Principles” means the Privacy Shield Principles, including the Supplemental Principles under the EU-U.S. Privacy Shield and the Swiss-U.S. Privacy Shield.
“Processing” means any operation or set of operations that is performed on Customer Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction. “Process” and “Processed” will have a corresponding meaning.
GDPR Requirements
Without limiting Solver’s obligation to comply with the Data Protection Law, Solver, in its capacity as a data processor or sub-processor of Customer Personal Data will:
Process Customer Personal Data only on documented instructions from Customer, including with regard to transfers of Customer Personal Data to a third country or an international organization, unless required to do so by European Union or Member State law to which Customer is subject. In such case, Customer will inform Solver of that legal requirement before Processing, unless that law prohibits such information on important grounds of public interest;
Ensure that persons authorized to Process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
Implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk of the Processing, including all measures required pursuant to Article 32 of the GDPR;
Taking into account the nature of the Processing, assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfillment of Customer’s obligation to respond to requests for exercising the Data Subject’s rights laid down in Data Protection Law (including Chapter III of the GDPR);
Reasonably assist Customer in ensuring compliance with data security, Personal Data Breach, data protection impact assessments, and engaging in legally required consultations with a competent supervisory authority, pursuant to Data Protection Law (including Articles 32 to 36 of the GDPR taking into account the nature of processing and the information available to Solver);
At the choice of Customer, promptly delete or return all the Customer Personal Data to Customer after the end of the provision of services relating to the Processing, and delete existing copies unless applicable law requires storage of the Customer Personal Data;
Without limiting any of Customer’s existing audit rights under the Agreement (if any), make available to Customer all information reasonably necessary to demonstrate compliance with Data Protection Law (including the obligations laid down in Article 28 of the GDPR) and allow for and contribute to reasonably frequent audits, including inspections, conducted by Customer or another auditor mandated by Customer, provided that (i) each party shall bear its own costs in connection with an audit up to one (1) audit per contractual year and (ii) for any further audits during the same contractual year, Customer shall bear the costs and (iii) each party shall always bear its own costs in relation to audits initiated by a competent supervisory authority; and
Immediately inform Customer if, in its opinion, an instruction infringes Data Protection Law.
The subject matter of the Processing is described in Exhibit 1-A of this Exhibit. Customer’s instructions relating to the Processing will be documented in the Agreement or another written agreement signed by the parties’ authorized representatives.
Customer agrees that Solver may engage third party sub-processors to process Personal Data in accordance with this Section.
Customer hereby authorizes Solver to appoint the sub-processors that Solver has engaged as of the Effective Date. A list of current sub-processors is available upon written request.
Solver shall provide Customer prior notice of any additional or replacement sub-processors. After being notified, Customer must notify Solver within ten (10) business days of any reasonable objection related to such sub-processors’ Processing of Personal Data it has to such sub-processors.  Failure to notify Solver within this time frame will constitute approval of such sub-processors.
In the event Customer provides reasonable objection pursuant to Section 3(c)(ii) of this Exhibit, Solver will use commercially reasonable efforts to make a change in the service or Customer’s configuration available to avoid Processing of Personal Data by such sub-processor. If Solver is unable to make available such change within a reasonable period of time or to otherwise address the grounds for Customer’s objections, which shall not exceed one hundred eighty (180) days, Customer may terminate the Agreement or purchase orders under the Agreement in respect only to those services which cannot be provided by Solver without the use of the objected-to sub-processor, by providing written notice to Solver. Customer shall receive a refund of any prepaid fees for the period following the effective date of termination in respect of such terminated services.
In the event Solver engages sub-processors under the Agreement, Solver shall place the same or similar obligations as those in this Exhibit on such sub-processors or other obligations required by Data Protection Law. Solver shall remain fully liable to Customer for such sub-processors’ performance of their obligations arising out of the Agreement.
Solver will notify Customer without undue delay upon becoming aware of a Personal Data Breach.
Where Customer faces an actual or potential claim arising out of or related to violation of any Data Protection Law (e.g., Article 82 of the GDPR) concerning the Services, Solver will promptly provide all materials and information reasonably requested by Customer that are available to Solver and relevant to the defense of such claim and the underlying circumstances concerning the claim.
Solver will comply with Data Protection Law.
Transfers of Personal Data from the European Economic Area or Switzerland to Solver
Solver self-certifies to and complies with the EU-U.S.  and Swiss-U.S.  Privacy Shield Frameworks, as administered by the US Department of Commerce.  Solver will provide the Customer Personal Data the same protection as provided under the Privacy Shield Principles.   Upon Customer’s reasonable request, Solver will assist Customer in responding to requests from Data Subjects when they exercise their rights under the Privacy Shield Principles relating to notice, choice, access, and data privacy complaint resolution.  In the event Solver determines that it no longer can provide the Personal Data the same protection as provided under the Privacy Shield Principles, Solver shall notify Customer in writing, including email, no later than 72 hours following such a determination.

 

Exhibit 1-A – Details of Processing
Nature and Purpose of Processing

 

Solver will Process Customer Personal Data as necessary to perform the Services pursuant to the Agreement, and as further instructed by Customer in its use of the Services.

 

Categories of Data Subjects

 

Customer may submit or otherwise provide access to Personal Data through the use of the Services, the extent of which is determined and controlled by Customer in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

 

Customer’s employees or contractors authorized to use the Services on behalf of Customer;
Customer’s past, present, and prospective customers.
Categories of Personal Data

 

Customer may submit or make available Customer Personal Data to the Services, the extent of which is determined and controlled by Customer in its sole discretion.

 

Duration of Processing

 

Unless otherwise instructed by Customer or required by applicable law, Solver stores Customer Personal Data for the duration of the Agreement and for an additional time period to enable Customer to retrieve such data as specified in the Agreement.