SERENDIPITOOLS TERMS OF SERVICE
Please read these Terms of Service (this “Agreement") carefully. This Agreement is between you (“you” or “Customer”) and SerendipiTools Inc. (“Company,” “we,” “us,” or words of similar import) and governs the Company’s provision of the Services (as defined below) to you and your access to and use thereof.
This Agreement hereby incorporates by reference any additional terms and conditions posted by us through the Site (as defined below) or otherwise made available to you by Company.
By accessing or using the Services, taking an Assessment, creating an account, completing our online ordering process, or agreeing to Company’s online or paper order form (each, an “Order Form”) referencing this Agreement, you affirm that you are of legal age to enter into this Agreement and agree to enter into this Agreement and to be bound by the terms and conditions set forth herein.
If you are an individual accessing or using the Services on behalf of, or for the benefit of, any corporation, partnership or other legal entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you also represent and warrant that you have the legal authority to bind such organization to this Agreement. References to “you,” “your,” and Customer in this Agreement will refer to both the individual using the Services and to any such Organization.
We may change this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised Agreement through the Site. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.
Your continued use of the Services following any changes to this Agreement will constitute your acceptance of such changes. The “Last Updated” legend above indicates when this Agreement was last changed. We may, at any time and without liability, modify or discontinue all or part of the Services (including access to the Services via any third-party links); charge, modify or waive any fees required to use the Services; or offer opportunities to some or all users.
2. Geographical Restrictions
The Services are controlled and operated from the United States, and are not intended to subject Company to any non-U.S. jurisdiction or law. The Services are not available for use in any non-U.S. jurisdictions.
Any use of the Services is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. In addition to the limitations described in this Section 3, we may limit (or expand) the availability of the Services at any time, with or without notice, in whole or in part, to any person, geographic area, or jurisdiction that we choose.
4. Fees and Payment
Fees and applicable usage rates for the Services are set forth within your Order Form or are otherwise made available to you during the online ordering process. You agree to pay all amounts due for the Services in accordance with the terms on the applicable Order Form, as made available to you in the online ordering process, or on an invoice provided to you.
5. Access and Use of the Services
Subject to the terms of this Agreement and Customer’s compliance with this Agreement, during the Term, Company hereby grants Customer (and any Authorized Users, if applicable) a non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to access and use those portions of the Services ordered by Customer, solely for the purpose expressly authorized under the applicable Order Form, or if no purpose is specified, then for Customer’s internal business purposes, and in accordance with the Documentation for the Services.
All rights and licenses granted under this section are non-exclusive and may not be transferred, assigned or sublicensed to third parties.
b. Applicant Reports
Subject to the terms of this Agreement and Customer’s compliance with this Agreement, during the Term, Company hereby grants Customer (and any Authorized Users, if applicable) a non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use all Applicant Reports provided by Company to Customer, solely for the purpose expressly authorized under the applicable Order Form, or if no purpose is specified, then for Customer’s internal business purposes.
6. Customer Obligations
a. Authorized Users
Customer is solely responsible and liable for any party, including Authorized Users, who accesses or uses the Services through Customer’s account, and any act or omission of any such person will constitute an act or omission of Customer.
b. Customer’s Employment Practices
As between the parties, Customer is solely responsible for its own employment and hiring practices, including Customer’s use of the Services in its recruiting and hiring activities. Customer further acknowledges and agrees that:
- Information contained on Applicant Reports, as well as any other information related to Assessments, should only be one element of Company’s evaluation of Applicants.
- Company has not reviewed, and Company has no role in reviewing, controlling, or advising on Customer’s recruiting, hiring, or employment practices.
- Customer should read and understand the Uniform Guidelines on Employee Selection Procedures issued by the United States Equal Employment Opportunity Commission (“EEOC”) in order to avoid cultural bias and unfair discrimination.
- Use of tests for evaluation of job applicant honesty or integrity may be unlawful or restricted in some jurisdictions. Customer will not use the Service (or any specific Applicant Reports) in a manner prohibited by applicable law.
- Customer (and, for clarity, not Company) is responsible for making all testing accommodations as required by applicable law, including the Americans with Disabilities Act of 1990 and EEOC regulations.
- The Services (including all Assessments) are not intended for diagnostic, mental health, medical, treatment, or any other health-related purposes.
- Customer will obtain all proper consents from Applicants regarding their participation in Assessments prior to requesting administration of any Assessments being administered for such Applicants.
- Customer will not use the Services to facilitate hiring or retention of Applicants other than for its own internal staffing needs (for example, as a recruiting firm, hiring firm, or employment agency) without Company’s prior written consent.
c. Rules of Conduct
In connection with Customer’s use of the Services, Customer must not:
- Use the Services to assess Applicants in any manner that is unlawful, unsafe, offensive, discriminatory, or otherwise inappropriate.
- You may not use the Services to solicit information from Applicants that could be used to discriminate against such Applicants.
- Post, transmit or otherwise make available through or in connection with the Services any materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic or otherwise objectionable; or (d) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
- Post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
- Use the Services for any purpose that is fraudulent or otherwise tortious or unlawful.
- Interfere with or disrupt the operation of the Services or the servers or networks used to make the Services available, including by hacking or defacing any portion of the Services; or violate any requirement, procedure or policy of such servers or networks.
- Restrict or inhibit any other person from using the Services.
- Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Services except as expressly authorized herein, without Company’s express prior written consent.
- Reverse engineer, decompile or disassemble any portion of the Services, except where such restriction is expressly prohibited by applicable law.
- Remove any copyright, trademark or other proprietary rights notice from the Services.
- Frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service, without Company’s express prior written consent.
- Systematically download and store content from the Services.
- Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather content from the Services, or reproduce or circumvent the navigational structure or presentation of the Services, without Company’s express prior written consent.
a. Customer Data
Subject to the terms of this Agreement and Customer’s compliance with this Agreement Customer hereby grants Company a limited, worldwide, non-exclusive, revocable, royalty-free, fully paid-up right and license to use Customer Data for the purpose of providing, improving, maintaining, and developing the Services.
Further, Customer represents and warrants that: (a) Customer owns the Customer Data, or is otherwise permitted to grant the license set forth above (including by obtaining all necessary consents from Applicants); (b) Company’s use of the Customer Data pursuant to the license set forth above will not violate the privacy rights, publicity rights, contract rights, intellectual property rights, or any other rights of any person; and (c) Company’s use of the Customer Data pursuant to the license set forth above will not result in the breach of contract between Customer and any third party (including Applicants).
b. Usage Data
Company owns all intellectual property and other rights with respect to Usage Data. To the extent Customer has or later acquires any rights with respect to any Usage Data, Customer hereby assigns and agrees to assign to Company such rights.
8. Proprietary Rights; Third Party Materials
a. Company Proprietary Rights
Company and its licensors, suppliers, and service providers own all intellectual property and other rights with respect to the Services, Applicant Reports, and Documentation. Customer does not obtain any rights to the foregoing except as expressly set forth in these Terms. To the extent Customer has or later acquires any rights to the foregoing, Customer hereby assigns and agrees to assign to Company such rights.
Customer has only the rights expressly granted to Customer under these terms. All rights not expressly granted as reserved by Company and its licensors, suppliers, and service providers. Customer agrees not to take any action, or to authorize or encourage any third party to take any action (or cooperate with any third party in taking any action) inconsistent with the foregoing.
b. Third Party Materials
Third party software included within the Services may be subject to additional terms, conditions and limitations imposed by the relevant third party licensors (“Third Party Terms”). Notwithstanding anything to the contrary in this Agreement, Customer will comply with the Third Party Terms and, if any Third Party Terms conflict with the terms and conditions of this Agreement with respect to such third party software, then the Third Party Terms will control (and will resolve any conflict or inconsistency) with respect to such third party software. From time-to-time, Company may substitute different third party software, so long as such substitution does not materially reduce the functionality or performance of the Services.
c. Open Source
Without limitation of the generality of Section 8(b), Customer acknowledges that the Services may contain Open Source software. To the extent any Open Source license requires that Company provide Customer any rights with respect to such Open Source software that are inconsistent with the licenses granted in this Agreement (or any limitations or restrictions on those licenses as set forth in this Agreement), then the applicable Open Source license will take precedence over those licenses (and such limitations and restrictions), but solely with respect to the applicable Open Source component software. Customer acknowledges that the Open Source license is solely between Customer and the applicable third party licensor of the Open Source and Customer will comply with the terms of any such Open Source license.
If you provide to Company any input, ideas for improvement, suggestions, or other feedback with respect to the Services (“Feedback”), you hereby grant Company (and its designees) a non-exclusive, transferable, irrevocable, worldwide, royalty-free, and fully paid-up right and license to make, use, offer to sell, reproduce, modify, distribute, make available, publicly display and perform, disclose, and otherwise exploit such Feedback without restriction or obligation.
10. Term and Termination
The term of this Agreement (the “Term”) will continue until the end date for your subscription to the Services set forth on the applicable Order Form. If no end date is specified, then this Agreement is effective until terminated pursuant to this Section 10.
Company may terminate this Agreement (or, at Company’s option, temporarily suspend your access to and use of the Services) if: (a) you are in material breach of this Agreement and fail to cure such breach within thirty (30) days after written notice of the breach; (b) you have failed to timely pay any amounts (including all applicable taxes and fees) owed to Company; or (c) Company believes in good faith that your use of the Services is in violation of any applicable Laws.
You may terminate this Agreement if Company is in material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice of the breach.
Upon termination of this Agreement, your right to access and use the Services will immediately cease, and Company may, without liability to you or any third party, immediately deactivate and delete your account and any associated materials, without any obligation to provide further access to such materials. All terms and provisions of this Agreement which by their nature are intended to survive expiration or termination of this Agreement will survive any expiration or termination of this agreement.
12. Disclaimer of Warranties
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) THE SERVICES AND ANY THIRD PARTY MATERIALS ARE MADE AVAILABLE TO YOU ON AN “AS IS,” “WHERE IS” AND “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY; AND (B) COMPANY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND ANY THIRD PARTY MATERIALS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “AFFILIATED ENTITIES”), AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
While we try to maintain the timeliness, integrity and security of the Services, we do not guarantee that the Services are or will remain updated, complete, correct or secure, or that access to the Services will be uninterrupted. The Services may include inaccuracies, errors and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Services.
13. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) COMPANY WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF SUBMISSIONS (INCLUDING UNAUTHORIZED INTERCEPTION BY THIRD PARTIES OF ANY SUBMISSIONS), EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICES OR ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR ANY PRODUCTS OR THIRD PARTY MATERIALS IS TO STOP USING THE SITE; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL BE THE GREATER OF THE AMOUNT, IF ANY, PAID BY YOU TO COMPANY TO USE THE SERVICES IN THE PREVIOUS SIX (6) SIX MONTHS AND ONE HUNDRED U.S. DOLLARS $100. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH COMPANY AND THE AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless Company and the Affiliated Entities (including our and their respective successors and assigns) from and against all claims, causes of action, demands, suits, proceedings, judgments, orders, damages, liabilities, losses, costs, expenses and fees (including attorneys’ fees) arising out of or relating to (a) your use (including any misuse) of, or activities in connection with, the Services (including all Feedback); and (b) any violation or alleged violation of this Agreement or any applicable Laws by you.
You or Company (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”) in connection with this Agreement. The Receiving Party agrees not to disclose the Disclosing Party’s Confidential Information to any third party without the Disclosing Party’s prior written consent, other than to the Receiving Party’s employees, agents and consultants who need to know such information to carry out the purposes contemplated by this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein.
The Receiving Party agrees to use at least the same degree of care to prevent unauthorized use and disclosure of Confidential Information as the Receiving Party uses with respect to its own confidential information of like importance (but in no event less than a reasonable degree of care).
The Receiving Party may use or disclose Confidential Information to the extent (a) approved by the Disclosing Party in writing or (b) the Receiving Party is legally compelled to disclose such Confidential Information provided, however, that prior to any such compelled disclosure, the Receiving Party shall give the Disclosing Party reasonable advance notice of any such disclosure and shall cooperate with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
At any time at the Disclosing Party’s request, the Receiving Party shall promptly return to the Disclosing Party or destroy all materials (in written, electronic or other form) containing the Disclosing Party’s Confidential Information, including any copies and extracts thereof, and so certify in writing to the Disclosing Party. It is not a breach of the foregoing obligation to the extent the Disclosing Party’s Confidential Information is contained in an electronic file created pursuant to the Receiving Party’s routine backup or archiving procedures if such file is not easily deleted and is not generally accessible beyond the need for disaster recovery or similar operations.
16. Governing Law; Jurisdiction
This Agreement is governed by and will be construed in accordance with the laws of the State of New York, U.S.A., without regard to its principles of conflicts of law, and regardless of your location. You agree to exclusive jurisdiction of the courts located within the geographical boundaries of the United States District Court for the Southern District of New York, and waive any jurisdictional, venue or inconvenient forum objections to such courts.
17. Copyright Infringement Claims
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Services infringe your copyright, you (or your agent) may send to Company a written notice by mail or e-mail, requesting that Company remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send to Company a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Company’s DMCA Agent as follows: By mail to “Attn: SerendipiTools DMCA Agent, SerendipiTools Inc., 442 5th Ave #1716, New York, NY, 10018”; or by e-mail to Admin@SerendipiTools.com. Company’s DMCA Agent may be reached by phone at ((872)).274.3750.
We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
18. Export Controls
You are responsible for complying with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
19. Government Rights
To the extent you or any of your Authorized Users are government entities, the following terms apply:
The Services and all associated Documentation are “commercial computer software” and related commercial “computer software documentation” as those terms are defined in the Federal Acquisition Regulation (“FAR”) 2.101 and U.S. Department of Defense (“DoD”) FAR Supplement (“DFARS”) 252.227-7014(a) or similar provisions effective in the applicable jurisdiction, and thus are subject to the policies and requirements of FAR 12.212 or, for DoD, DFARS 227.7202, or similar applicable policies or requirements. All government entities will acquire the Services and all associated Documentation or other related technical data subject to this Agreement as required in FAR 12.212 (Computer Software) or DFARS 227.7202 and their respective successors, as applicable, except to the limited extent a government end user is prohibited by the laws of its jurisdiction from accepting such terms. If and to the extent any provision of this Agreement is so prohibited, such provisions will be deemed modified only to the extent reasonably necessary to conform to applicable law, but to give maximum effect to this Agreement as written. This government rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data.
This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Company. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.” This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and Company relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Company relating to such subject matter. Notices to you (including notices of changes to this Agreement) may be made via posting to the Site or by e-mail (including in each case via links), or by regular mail. Without limitation, a printed version of this Agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Company will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.
Capitalized terms not otherwise defined in this Agreement have the definitions set forth below in this Section 1:
“Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with a party, but only so long as such, control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of at least fifty percent (50%) of the voting rights in such entity (or, in the case of a non-corporate entity, equivalent rights).
“Applicant” means any individual who uses the Services to take Assessments at the request of Customer.
“Customer Data” means any data or information (a) input into the Services by Customer, Customer’s Authorized Users, or Applicants or (b) otherwise made available to Company by Customer, Customer’s Authorized Users, or Applicants in connection with the Services. For clarity, an Applicant’s responses (in any form) to Assessments are Customer Data.
“Applicant Report” means any report (in digital, written, or any other form) generated by Company and provided to Customer from time to time containing information regarding the responses of one or more Applicants to one or more Assessments.
“Assessment” means any form of test, survey, questionnaire, or other assessment provided by Company to an Applicant as part of the Services performed for Customer.
“Authorized User” means any employees or agents of Customer that are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement.
“Confidential Information” means information that is disclosed by a Disclosing Party to the Receiving Party that is (a) marked or verbally designated as “confidential” or the like or (b) that given the circumstances surrounding its disclosure or the nature of the information a reasonable person would conclude to be confidential. Applicant Reports, and all information contained therein, are the Confidential Information of Company. Confidential Information does not include any information that (1) becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (2) was known to the Receiving Party before receipt from the Disclosing Party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party, (3) is received from a third party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party, or (4) was independently developed by the Receiving Party.
“Documentation” means any end user guides, training manuals, references materials, or any other documents that Company generally makes available to its customers in connection with the Services.
“Laws” means: (a) any national, state, local or other law or statute in any jurisdiction in which the Services are performed, including any jurisdiction in which funds are received; (b) any international or transnational treaty, law, or statute; (c) any rule or regulation issued by a governmental entity; (d) any written or authoritative interpretation by a governmental entity of any such law, statute, rule or regulation; and (e) any enforceable regulatory guidance, any judicial, governmental, or administrative order, judgment, decree or ruling or written and enforceable requirements of self-regulatory bodies and organizations.
“Open Source Software” means software or similar subject matter that is distributed under an open source license such as (by way of example only) the Apache License, BSD License, MIT License, or any other license identified as an open source license by the Open Source Initiative.
“Personal Data” means any information that can be used to identify an individual person and that is input into the Services by Customer, Customer’s Authorized Users, or Applicants.
“Site” means all websites controlled and offered by Company (together with any materials available therein, and any successor sites thereto).
“Services” means the cloud-based offerings, including the Site, generally made available by Company (on a subscription basis or otherwise) to its customers, which include the provision pre-employment testing and assessment services by administering Assessments to Applicants and providing Applicant Reports to Customers.
“Usage Data” means any data or information regarding, gathered through, or otherwise generated from access to and use of the Services (but not including Customer Data).