ASM Chatbot Terms of Use
This Agreement is a contract between an ASM Chatbot user (“User” or “Users”) and ASM
International, Inc. (“ASM”) (each a “Party”, and collectively the “Parties”). This Terms of Use
(“Agreement”) governs the use of ASM International Inc.’s “ASM Materials Information Chatbot”
(hereinafter “ASM Chatbot”) feature and is effective upon the first use or access to the ASM
Chatbot application (as defined below). You acknowledge that you are agreeing to this
Agreement on behalf of yourself or an organization, and you represent and warrant that you
have the authority to bind the organization to this Agreement. If you do not agree to this
Agreement, do not access, or use the ASM Chatbot feature.
1. Definitions
As used in this Agreement, the following definitions shall apply:
“Affiliate” is included in the term Organization, Party, or Parties, and means any business entity
that, from time to time, is controlled by or under common control with Organization or is an
Organization’s authorized agent to use or procure services and products under this Agreement.
“Aggregated Data” means data, which is based on or derived from Customer Data, and which has
been aggregated and de-identified in a manner that does not designate or identify Customer or
its Authorized Users as the source of the data.
“ASM Chatbot” is a computer application, using artificial intelligence, on ASM’s website that
simulates and processes human conversation allowing ASM Chatbot users to interact with digital
devices as if they were communicating with a real person.
“ASM Chatbot User(s)” means individuals or organizations who use the ASM Chatbot feature to
ask questions.
“Confidential Information” means any information relating to or disclosed in the course of the
Agreement, which is or should be reasonably understood to be confidential or proprietary to the
disclosing party, or which is described in Section 7 of this Agreement.
“Customer Data” means any ASM Chatbot User’s information, documents, or electronic files that
are provided to ASM hereunder.
“Documentation” means any online or printed user manuals, functional specifications that are
provided to Customer by Company, and any derivative works arising from or related to the
foregoing.
“Enrichment Data” means user interaction and behavioral data derived from ASM Chatbot Users’
interactions with the application and any communications received from them. Enrichment Data
includes, but is not limited to, clicks, opens of messages, and/or records, and time spent
consuming specific pieces of content and any generated data that is created by the application
using other Enrichment Data.
“Error” means any reproducible material failure of the application to function in accordance with
its Documentation.
“Intellectual Property” means patents, copyrights, trade secrets, trademarks (including trade
names, logos, and service marks) and confidential know-how, in each case whether registered or
unregistered, and including any applications or registrations for any of these, and the equivalent,
on a world-wide basis, and all rights related thereto.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents, or programs.
“Organization” means Associations using the ASM Chatbot application, including its Affiliates and
Authorized User(s).
“Support Services” means maintenance and technical support services for the application.
“Update” means any patch, bug fix, release, version, modification, or successor to the
application.
“User Data” means all information, data, and materials provided, uploaded, or approved to be
uploaded by a user, whether in electronic form or otherwise.
“Work Product” means all work created under this Agreement by ASM
using other Enrichment Data.
“Error” means any reproducible material failure of the application to function in accordance with
its Documentation.
“Intellectual Property” means patents, copyrights, trade secrets, trademarks (including trade
names, logos, and service marks) and confidential know-how, in each case whether registered or
unregistered, and including any applications or registrations for any of these, and the equivalent,
on a world-wide basis, and all rights related thereto.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or
malicious code, files, scripts, agents, or programs.
“Organization” means Associations using the ASM Chatbot application, including its Affiliates and
Authorized User(s).
“Support Services” means maintenance and technical support services for the application.
“Update” means any patch, bug fix, release, version, modification, or successor to the
application.
“User Data” means all information, data, and materials provided, uploaded, or approved to be
uploaded by a user, whether in electronic form or otherwise.
“Work Product” means all work created under this Agreement by ASM
2. Provision of ASM Chatbot
ASM shall make ASM Chatbot available to individual and organization users pursuant to this
Agreement. Individual and organization users agree that the use of ASM Chatbot is not
contingent on the delivery of any future functions or features or on any oral or written public
comments made by ASM, its affiliates or representative, regarding future functionality or
features.
3 License
3.1 ASM hereby grants to ASM Chatbot Users a non-exclusive, non-transferable license to use
the ASM Chatbot application for its internal business purposes (the “Authorized Use”). For any
use of the ASM Chatbot application that is not an Authorized Use, ASM Chatbot users must obtain
the written approval of ASM for such uses.
3.2 ASM Chatbot Users shall not, directly, indirectly, alone, or with another party, (i) copy,
disassemble, reverse engineer, or decompile the application; (ii) modify, create derivative works
based upon, or translate the application; (iii) transfer or otherwise grant any rights in the
application in any form to any other party, nor shall ASM Chatbot Users attempt to do any of the
foregoing or cause or permit any third party to do or attempt to do any of the foregoing, except
as expressly permitted hereunder.
3.3 ASM Chatbot Users are solely responsible for maintaining the security of all usernames and
passwords granted to it, for the security of its information systems used to access the application,
and for its Users’ compliance with the terms of this Agreement. ASM has the right at any time to
terminate or suspend access to any Authorized User if ASM reasonably believes that such
termination or suspension is necessary to preserve the security, integrity, or accessibility of the
application, ASM (including its officers, directors, employees, and agents), and ASM’s other
customers.
3.4 By using the ASM Chatbot application, ASM Chatbot Users grant to ASM a royalty-free,
worldwide, fully transferable, irrevocable, and perpetual license to use or incorporate any of their
recommendations, improvement suggestions, or feedback, including utilization data, provided
by ASM Chatbot Users.
4 Support Services
4.1 ASM shall, at its sole discretion, provide to ASM Chatbot Users technical support services for
the application on the same basis as it provides such services to similarly situated ASM Chatbot
Users.
4.2 ASM shall, at its sole discretion, apply updates to the application from time to time.
4.3 ASM shall, at its sole discretion, use commercially reasonable efforts to correct all Errors to
the application or to provide a reasonable workaround as soon as is reasonably possible during
ASM’s normal business hours.
4.4 ASM is not obligated to correct any Errors or provide any other support to the extent such
Errors or need for support was created in whole or in part by: (i) the acts, omissions, negligence
or willful misconduct of ASM Chatbot Users; (ii) any failure or defect of ASM Chatbot Users’ or a
third party’s equipment, software, facilities, third party applications, or internet connectivity (or
other causes outside of ASM’s or its managed services provider’s point of presence); or (iii) a
Force Majeure Event.
4.5 ASM is not obligated to provide services for (i) development of new features, or (ii) any service
change requested by ASM Chatbot Users and not agreed to by ASM in signed writing.
5 Intellectual Property
5.1 ASM Chatbot Users acknowledge that they obtain no ownership rights in the application, or
any of its related Services, Software, or Work Product. All rights to the application Services,
Software, and/or Work Product, including but not limited to any accompanying technical
documentation, Confidential Information, trade secrets, trademarks, service marks, patents,
copyrights, and other proprietary information, are, shall be, and will remain the sole property of
ASM or any third party from whom ASM has licensed such software or technology.
5.2 By using the ASM Chatbot application, ASM Chatbot Users grant to ASM, a non-exclusive,
non-transferable, non-sublicensable right and license to use, copy, transmit, modify, and display
the ASM Chatbot User Data solely for purposes of providing the application and related services
to ASM Chatbot Users hereunder.
5.3 ASM Chatbot Users hereby grant to ASM a perpetual, irrevocable, worldwide, royalty-free,
sublicensable, non-exclusive license to create, process, reproduce, store, display, modify,
translate, create derivative works from, make available and otherwise use Aggregated Data in
connection with developing, providing, maintaining, supporting, or improving the application or
any of ASM’s current and future products and services, or for any other lawful purpose.
5.4 ASM owns all rights, title, and interest in the Enrichment Data. ASM Chatbot Users
acknowledge that ASM utilizes Enrichment Data across its entire service to benefit the experience
of its customers and all ASM Chatbot Users and that Enrichment Data will not be deleted upon
termination of this Agreement, except to the minimum extent required by applicable law.
non-transferable, non-sublicensable right and license to use, copy, transmit, modify, and display
the ASM Chatbot User Data solely for purposes of providing the application and related services
to ASM Chatbot Users hereunder.
5.3 ASM Chatbot Users hereby grant to ASM a perpetual, irrevocable, worldwide, royalty-free,
sublicensable, non-exclusive license to create, process, reproduce, store, display, modify,
translate, create derivative works from, make available and otherwise use Aggregated Data in
connection with developing, providing, maintaining, supporting, or improving the application or
any of ASM’s current and future products and services, or for any other lawful purpose.
5.4 ASM owns all rights, title, and interest in the Enrichment Data. ASM Chatbot Users
acknowledge that ASM utilizes Enrichment Data across its entire service to benefit the experience
of its customers and all ASM Chatbot Users and that Enrichment Data will not be deleted upon
termination of this Agreement, except to the minimum extent required by applicable law.
6 Warranty
6.1 The ASM Chatbot application, and all its content, applications, software, functions, and
materials, is provided “as is,” “with all faults” and without any warranties of any kind, express or
implied. ASM, and its owners, shareholders, directors, officers, employees, representatives, and
affiliates (collectively “ASM”), expressly disclaim any and all warranties in any way related to the
ASM Chatbot application, express or implied, including, but not limited to, warranties of
merchantability, fitness for a particular purpose, non-infringement, title, merchantability, data
accuracy, system integration, and informational content.
6.2 In addition to the disclaimers in Section 6.1 above, ASM also makes no warranties or
representations regarding operation of the ASM Chatbot application, the accuracy or reliability
of the information provided by the application, or the results of the use of the materials available
or any other website linked to ASM Chatbot. The application materials may be out of date, and
ASM makes no commitment to update such materials. ASM Chatbot Users also acknowledge that
ASM does not operate or control the internet. ASM does not warrant that the files available for
downloading, if any, will be free from infection, viruses, worms, trojan horses, or other malicious
code that manifest contaminating or destructive properties. ASM also does not warrant that ASM
Chatbot, its related software, materials, products, or services will be uninterrupted or error-free
or that any defects in software, materials, products, or services will be corrected.
6.3 ASM Chatbot Users agree to assume all obligations: (i) related to the use of ASM Chatbot to
achieve its intended results, and (ii) related to any decisions or advice made or given as a result
of the use or application of ASM Chatbot or any materials retrieved from the application,
including those to any third party, for the content, accuracy, and review of such results.
7 Confidential Information
7.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”)
has disclosed or may disclose confidential or proprietary business, technical or financial
information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential
Information” of the Disclosing Party). In addition to Confidential Information as defined in Section
1 of this Agreement, the Confidential Information of ASM includes non-public information
regarding features, functionality and performance of the application or Services. The Receiving
Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii)
not to use (except in performance of the Services or as otherwise permitted herein) or divulge to
any third person any such Confidential Information. The Disclosing Party agrees that the
foregoing shall not apply with respect to any information after the later of five (5) years following
the disclosure thereof, or the termination of this Agreement, or any information that the
Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its
possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed
to it without restriction by a third party, or (d) was independently developed by Receiving Party
prior to its disclosure and without use of any Confidential Information of the Disclosing Party or
(e) is required to be disclosed by law.
8 Overall Limitation of Damages
8.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, ASM AND ITS SUPPLIERS (INCLUDING
BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES,
REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE
WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS
RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY:
(A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF
DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS
OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES; (C) FOR ANY MATTER BEYOND ASM’S REASONABLE CONTROL; OR (D) FOR ANY
AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED A
TOTAL OF FIVE HUNDRED DOLLARS ($500.00). IN EACH CASE, WHETHER OR NOT ASM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9 Termination.
9.1 ASM may terminate this Agreement immediately and without notice in the event that any
ASM Chatbot User breaches any term or condition of this Agreement or discontinues use of the
ASM Chatbot application.
10 Rights Upon Termination.
10.1 In the event of termination as described in Section 9, ASM will have no obligation to maintain
or provide any Customer or User Data and may, upon written request, unless legally prohibited,
delete all User Data in its systems or otherwise in its possession or under its control.
10.2 The termination of this Agreement shall not extinguish any rights or obligations of the
parties relating to protection of Confidential Information or to the protection of ASM’s
intellectual property rights.
11 Assignment.
11.1 ASM Chatbot Users shall not sell, pledge, assign, sublicense, or otherwise assign, transfer,
or share its rights or delegate its obligations under this Agreement without the prior written
consent of ASM. Any attempt to sell, pledge, assign, sublicense or otherwise transfer in violation
hereof shall be void and of no force or effect. ASM may assign its rights and delegate its duties
hereunder at any time without the consent of ASM Chatbot Users.
12 General Provisions.
12.1 Applicable Law. The parties agree that this Agreement and interpretation thereof shall be
governed, construed, and performed in accordance with the laws of the State of Ohio, exclusive
of its choice of law provisions. The parties agree that the United Nations Convention for the
International Sale of Goods shall not apply to this agreement.
12.2 Required Consents. ASM Chatbot User warrants that it has obtained lawful permission to
use all hardware and software required for the services to take place.
12.3 Modification. This Agreement may be modified or amended at any time and in the sole
discretion of ASM, by updating this posting. In addition, ASM may modify the ASM Chatbot
application and its related materials, features, and services at any time without prior notice to
ASM Chatbot Users. By using the ASM Chatbot application, ASM Chatbot Users agree to be bound
by any such revisions.
12.4 No Waiver. The failure of either party to exercise any right or the waiver by either party of
any breach, shall not prevent subsequent exercise of such right or be deemed a waiver of any
subsequent breach of the same or any other term of the Agreement.
12.5 Notices. Except as otherwise specified in this Agreement, all notices related to this
Agreement will be in writing and will be effective upon the later of (a) personal delivery, or (b)
the second business day after mailing.
12.6 Force Majeure. ASM shall not be deemed in default of this Agreement to the extent that
performance of any of its obligations or attempts to cure any breach are delayed or prevented
by reason of any act of God, fire, natural disaster, accident, act of government, shortages of
materials or supplies or any other cause beyond its control (“Force Majeure”). In the event of
such Force Majeure, the time for performance or cure shall be extended for a period equal to the
duration of the Force Majeure but not in excess of twelve months.
12.7 Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties
with respect to the subject matter hereof and supersedes any prior oral or written promises or
agreements. There are no promises, covenants, or undertakings other than those expressly set
forth in this Agreement and any related Statements of Work.
12.8 Equitable Remedies. The parties recognize that money damages may not be an adequate
remedy for any breach or threatened breach of any obligation hereunder by an ASM Chatbot
User involving intellectual property or Confidential Information. The parties therefore agree that,
in addition to any other remedies available hereunder, by law or otherwise, ASM and any third
party from whom ASM has licensed software or technology shall be entitled to an injunction
against any such continued breach by a ASM Chatbot User of such obligations.
12.9 Relationship of the Parties. ASM shall perform the Services as an independent contractor.
Nothing in this Agreement nor in the course its performance shall be construed to create a
relationship of principal and agent, joint venture, partnership, association, or employment
between the parties. Neither party shall represent to any third party that it is the agent or
employee of the other.
12.10 Exclusive Jurisdiction and Venue. Any cause of action arising out of or related to this
Agreement, including an action to confirm or challenge an arbitration award, may only be
brought in the courts of applicable jurisdiction in Cuyahoga County Ohio, and the parties hereby
submit to the jurisdiction and venue of such courts.
12.11 Dispute Resolution. Except for actions seeking Equitable Remedies as described in Section
12.8, any dispute occurring or relating to this agreement, or breach thereof, should be
determined by arbitration in accordance with the arbitration rules of the American Arbitration
Association. Any arbitration shall proceed in the State of Ohio. Judgment upon the award of the
arbitrator(s) may be entered in any court having jurisdiction thereof.
12.12 Validity of Provisions. In the event any provision, or any part or portion of any provision, of
this Agreement, or of any Statement of Work or Order Form included herewith, shall be held to
be invalid, void or otherwise unenforceable, that provision shall be deemed modified so as to
carry out the intent of the parties to the maximum extent permitted by law, and shall not affect
the remaining part or portion of that provision, or any other provision hereof. Any headings
within this Agreement are used for convenience of reference only, and shall not operate to
expand, modify, or interpret the language therein.
12.13 International Use. ASM makes no representation that the ASM Chatbot application, or its
related materials, features, or services, are appropriate or available for use in locations outside
the United States. ASM Chatbot Users who choose to access the ASM Chatbot application from
locations outside the United States do so at their own initiative and are solely responsible for
compliance with local laws. If a ASM Chatbot User provides data about itself or any individuals
residing outside the United States (Personal Data) such data may be stored on servers in the
United States. It is the ASM Chatbot User’s responsibility to ensure that it has all required
authorizations to enter this information. ASM acts as the owner/controller of such Personal Data.
If applicable, the Parties incorporate by reference the European Commission standard
contractual clauses for the transfer of personal data to controllers in third countries
(2004/915/EC).
12.14 Property Rights. ASM’s internet web site, https://www.asminternational.org, where the
ASM Chatbot application resides, is protected by law, including, but not limited to, United States
copyright law. The contents of the ASM Chatbot application, including but not limited to text,
photographs, graphics, and source code, are copyrighted materials of ASM or its licensors, all
rights reserved. The name “ASM Chatbot”, and its associated graphics, are trademarks, service
marks and/or trade dress of ASM or its licensors, and users may not copy, imitate or use the
Trademarks, in whole or in part, for any purpose, including without limitation in any marketing
or advertising materials, without the express written consent of ASM