THIS MASTER SERVICES AGREEMENT (the "Agreement") is entered by and between Aesthetronics, Inc., a Delaware corporation (the "Company") and [Client Name] ___________, a [State] ___________ [Type of Entity] ___________ ("Customer"), and is dated effective as of the Effective Date set forth in the applicable Order Form. This Agreement governs Customer's access to and use of each Account, the Documentation, the Platform, the Software, the Services, and the Website and is incorporated by reference into each Order Form and all other matters addressed hereafter.
When used throughout this Agreement, the following capitalized terms shall have the following meanings:
(a) "Affiliate" means an entity that controls, is controlled by, or is under common control with a party.
(b) "Account" means the unique account used for connecting an Authorized User to the Platform and one or more Services.
(c) "Authorized Users" means Customer's employees and contractors authorized to use the Services.
(d) "Confidential Information" means all technical, business, client or proprietary information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, but is not limited to, information regarding the Disclosing Party's business strategies and practices, methodologies, trade secrets, know-how, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party's employees, clients, vendors, consultants and affiliates. Confidential Information shall not, however, include any portion of information which the Receiving Party can demonstrate by documented evidence is: (a) or becomes known or available by publication, commercial use or otherwise, through no fault of the Receiving Party; (b) known and has been reduced to tangible form by the Receiving Party at the time of disclosure by the Disclosing Party and is not subject to restriction; (c) independently developed by an employee of the Receiving Party who neither had access to nor in any manner benefited from the Disclosing Party's Confidential Information; (d) lawfully obtained by the Receiving Party from a third party who has the right to make such disclosure to the Receiving Party; or (e) released, in writing, for public disclosure by the owner of the Confidential Information. The Receiving Party shall have the right to disclose Confidential Information of the other party only pursuant to the order or requirement of a court, administrative agency, or other governmental body and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party shall disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed shall continue to be deemed Confidential Information.
(e) "Customer Data" means data and content submitted to the Services by or on behalf of Customer, including client information.
(f) "Documentation" means any written specifications, feature descriptions, help text, in-product instructions, and policy pages that the Company makes available in the Services or provides to Customer, as updated from time to time.
(g) "Fees" means all amounts payable to the Company under an Order Form, including subscription fees, usage fees, overages, and any other fees.
(h) "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws or practice, and all similar or equivalent rights or forms of protection, in any part of the world.
(i) "Order Form" means a signed Service Order Form referencing this this Agreement.
(j) "Platform" means the Company's proprietary software platform that allows Customer to access the Services through the Website.
(k) "Services" means Company's hosted software platform and related features, including messaging and payments features if enabled.
(l) "Software" means the Company's proprietary software, including the Platform.
(m) "Third Party Tools" means the third party tools and services (e.g., payment services, cloud hosting, etc.) used with the Software to enable the functionality of the Platform.
(n) "Usage Data" means aggregated usage metrics, diagnostics, and telemetry generated by operation of the Services.
(o) "Website" means the Company's marketing website located at joinadalace.com with a software login domain at adalace.ai, or any successor domain.
If there is a conflict between any of the foregoing documents, the following controls in this order: (a) the Order Form, (b) the Payment Processing Addendum attached to this Agreement as Exhibit A (the "PPA") (if applicable), (c) the Data Processing Addendum attached to this Agreement as Exhibit B (the "DPA") (if applicable), (d) this Agreement, and (e) the Additional Policies (defined below).
(a) License. During the Term and subject to payment of Fees, the Company grants Customer a non-exclusive, non-transferable, non-sublicensable right for its Authorized Users to access the Website and the Software and to use the Services vis-à-vis each Account, all solely for legitimate internal business purposes only. Each Authorized User will access the Platform only using their specific login credentials and must confirm that they are 18 years of age or older, capable of forming a binding contract with the Company, and not otherwise barred from using the Services under applicable law or this Agreement.
(b) Restrictions. Customer will not, and will not allow any third party to:
(i) reverse engineer, decompile, or attempt to discover source code of either the Software, the Website or any Third Party Tools;
(ii) access the Software, the Website, or the Services to build, benchmark, or support a competing product or service;
(iii) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or otherwise gather the Services content, or reproduce or circumvent the navigational structure or presentation of the Services;
(iv) interfere with or disrupt the Services, security, or integrity;
(v) use the Software or the Services for unlawful, abusive, fraudulent, or deceptive activity;
(vi) Use the Platform to market, promote in any way, or sell: (A) any illegal products, services, or actions; (B) any illegal drugs, substances designed to mimic illegal drugs and equipment designed for making or using drugs; (C) any fake references or ID-providing services; telecommunications manipulation equipment including hamming devices; (D) products, services, or actions that infringe intellectual property, sales or distribution rights of any licensed materials without appropriate authorization, counterfeit goods, illegally imported or exported products, unauthorized sale of brand name or designer products or services, or any other products, services, or actions that directly infringe or facilitate infringement upon the trademark, patent, copyright, trade secrets, proprietary or privacy rights of any third party; (E) products, services, or actions that The Company considers unfair, deceptive, or predatory towards consumers; (F) adult content and services, pornography and other mature audience content (including literature, imagery and other media) depicting nudity or explicit sexual acts, adult services including prostitution, escorts, pay-per view, sexual massages, and adult live chat features, adult video stores, gentleman's clubs, topless bars, and strip clubs, online dating services; (G) firearms, explosives and dangerous materials, guns, gunpowder, ammunitions, weapons, fireworks and other explosives, or peptides, research chemicals, and other toxic, flammable and radioactive materials;
(vii) Use the Platform to promote any business or organization that engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property or any other products, services, or actions that are in violation of law in the jurisdictions where Customer's business is located or targeted;
(vii) Misuse any of the Services, including, without limitation, any of the following: (A) use of the Services with false, manipulated, inaccurate, or misleading information regarding the user's identity, business entity, the nature of business, or other information requested by the Company; (B) use of the Services to facilitate transactions on behalf of another undisclosed merchant or for products or services that were not disclosed in any application for the Services; (C) processing where there is no bona fide good or service sold, or donation accepted; (D) card testing; (E) evasion of card network chargeback monitoring programs; (F) sharing cardholder data with another merchant for payment cross-sell products or services; (G) use of the Company's intellectual property without prior written consent from the Company; (H) use of the Company name or logo including use of the Company's trade or service marks inconsistent with this Agreement, or in a manner that otherwise harms the Company or the Company's brand; or (I) any action that implies an untrue endorsement by or affiliation with the Company.
(c) AUP. Customer's use of each of the Platform, the Software, the Website and the Services will be subject to the Acceptable Use Policy ("AUP") in the form attached to this Agreement, which is incorporated into this Agreement by reference and made a part hereof. Any AUP violations shall be deemed to be material breaches of this Agreement.
(d) Accounts. Customer agrees to ensure that, as for each Account, the Authorized User will (i) provide only accurate, current and complete account and business information, (ii) update their contact information when needed, and (iii) maintain the security of their Account credentials. Customer acknowledges and agrees that the Company has the right to verify any Account information and can suspend or terminate any Account, or any Authorized User using the Services under that Account, that provides incomplete, inaccurate or untrue Account information, doesn't provide updated contact informaiton, or doesn't maintain the security of their Account credentials.
(e) Other Policies. The Company maintains additional terms and policies that supplement this Agreement, like (i) the Privacy Policy, which describes the Company's collection and use of personal information (available at: _________________); (ii) the Terms of Use for the use of the Software (available at: _________________); (iii) the PPA (if applicable); (iv) the DPA (if applicable); (v) the SMS Addendum attached to this Agreement as Exhibit C (the "SMSA"); (vi) the AI Addendum attached to this Agreement as Exhibit D (the "AIA"); and (vii) the Support Policy attached to this Agreement as Exhibit F (the "Support Policy")(the PPA, DPA, SMSA, AIA and Support Policy may collectively be referred to as the "Additional Policies"). The Additional Policies are hereby incorporated into this Agreement by reference as if fully set forth herein.
(f) Contacting Customer and Authorized Users. It is acknowledged that the Company may contact Customer and any Authorized Users by email, SMS, text messaging and push notifications, if relevant, regarding the Services or this Agreement. Standard message, data and other fees may be charged by the third-party carrier.
(a) Generally. Customer may only use the Services in accordance with (i) this Agreement, including all applicable Additional Policies; (ii) any applicable law; (iii) Customer's representations and warranties set forth in this Section 4; and (iv) the restrictions set forth in Section 3(b). In addition, Customer agrees to provide all required disclosures to the Authorized Users and obtain all necessary rights, releases, and consents to allow the Services to be used by Customer and accessed by the Authorized Users, and to permit Customer Data to be collected, used, and disclosed in the manner contemplated by this Agreement.
(b) Admin Control; Permissions. The Services may allow Customer to configure staff permissions and access levels. Customer is solely responsible for configuring and maintaining those permissions and for internal controls. The Company has no liability for exposure, misuse, deletion, or access to Customer Data caused by Customer's permission settings, staffing decisions, or internal processes.
(c) Credentials. Customer is responsible for all activity under its accounts and for keeping credentials confidential. Customer will not share passwords and will notify the Company immediatley of suspected unauthorized access.
(d) Customer Environment. Customer is responsible for its own devices, hardware, software, networks, and local security. Company is not responsible for issues caused by Customer's hardware, ISP, internal Wi-Fi, compromised devices, or outdated browsers or operating systems.
(e) Compliance With Laws. Customer is solely responsible for complying with laws applicable to its business, including marketing, employment, consumer protection, privacy, and messaging laws. Without limiting the foregoing, Customer is responsible for ensuring that all tax rates configured within the services are accurate and up to date; Company is not responsible for any under-collection or over-collection of taxes.
(f) Customer Responsibility. Customer shall be responsible for all activity occurring under or relating to any Account, including managing all Authorized Users and all activity occurring under or in connection with an Account. Any reference in this Agreement to "access" or "use" of the Services (or similar phrase) is deemed to include access or use, as appropriate, by Authorized Users, and any act or omission of an Authorized User that does not comply with this Agreement will be deemed a breach of this Agreement by Customer.
(g) Notice. Customer agrees to notify the Company immediately if Customer learns of any unauthorized use of the Services or any other known or suspected breach of the security of an Account.
(h) Company Action. The Company reserves the right to take any action it deems necessary or reasonable to ensure the security of the Services and each Account, including suspending Customer's or any Authorized User's access to the Software, the Website, the Platform or any Account, issuing new access credentials, or requesting additional information to authorize activities related to an Account.
(i) Notice of Termination. Customer agrees to notify the Company immediately in the event an Authorized User's employment or services to Customer are ever terminated. In such an event, it is agreed that said Authorized Account will be suspended and any credentials revoked. Thereafter, any continuing access to Account data for such Authorized User will be controlled by Customer, in its sole discretion, and will at all times remain subject to the terms and conditions of this Agreement.
(a) Order Forms. The Services will be purchased via Order Forms. Each Order Form is separate and incorporates and is incorporated into this Agreement.
(b) Service Changes. The Company may modify the Services, including adding, changing, or removing features, but will use commercially reasonable efforts not to materially reduce core subscription functionality during the Initial Term. However, Customer acknowledges that as the Software evolves, changes may be required for security, legal compliance, or operational reasons.
(c) Future Add-Ons; In-Product Acceptance. Customer may enable additional modules, usage fees, or value-based fees ("Add-Ons") by executing an addendum to the applicable Order Form or by otherwise accepting updated pricing/terms for any of the Services. Customer agrees that any such acceptance is a binding modification to the Agreement.
(d) Policy Updates. The Company may update its policies and any of the exhibits incorporated into this Agreement (including all of the Additional Policies, the AUP, and similar operational policies) from time to time. The Company will provide notice of any such update by posting the updated policy within the Services or by email. Updates will be effective on the date stated in the notice (or, if no date is stated, upon posting). The Company will not modify an Order Form's pricing or the Initial Term except by a written amendment signed by both parties or by Customer otherwise accepting updated pricing/terms within the Services as permitted under Section 5(c). If an update to a policy materially reduces Customer's rights or materially increases Customer's obligations, Customer may stop using the affected feature and, if the affected feature is a material part of the Services, Customer may terminate the affected Services within thirty (30) days of notice and receive a refund of prepaid, unused subscription fees for the terminated portion.
(a) Fees; Invoices. Customer will pay Fees as stated in the Order Form, provided that the Company may increase Fees by providing written notice to Customer at least thirty (30) calendar days prior to the effective date of the Fee increase, and the Order Form will be deemed amended accordingly. Subscription Fees are billed in advance and usage-based Fees are billed in arrears unless stated otherwise.
(b) Autopay. Customer authorizes the Company to charge the payment method on file with the Company (e.g., via ACH, wire, credit card or check to an escrow account) to pay for all Fees.
(c) Pass-Through Fees. If the Company incurs any interchange fees, network fees, surcharges, or other charges from third party payment service providers, payment networks, acquiring banks, communication services, telecommunication providers, or regulatory changes associated with Customer's use of the Services, then such charges may be passed through to Customer at the same rate charged to the Company. Customer agrees to pay all such fees in connection with its use of the Services.
(d) Taxes. Unless otherwise specified in an Order Form, fees do not include any taxes, fees, duties, or other governmental charges that arise from the payment of the fees, or any amounts owed to the Company as a result of Customer's use of the Services (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with purchases and transactions under this Agreement. If the Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 6(d), the Company will invoice Customer and Customer will pay that amount unless Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will not withhold any Taxes from any amounts due to the Company. For clarity, the Company is solely responsible for taxes assessable against it based on its income, property, and employees.
(e) Late Fees; Suspension. Past-due amounts shall accrue interest at the lesser rate of 1.5% per month or the maximum allowed by law. The Company may suspend access to the Software if Fees are unpaid 7 days after due date. Reactivation fees may apply if stated in the Order Form.
(f) No Setoff. Customer may not withhold, offset, or reduce Fees.
(g) Changes to Fees. The Company may update any of the fees referenced in this Section 6 during the Term. The updated fees will go into effect as soon as they have been published to Customer. Unless expressly provided in an Order Form, renewal of Services will be at the Company's applicable pricing in effect at the time of the renewal, which will be communicated to Customer prior to said renewal. Additionally, the Company reserves the right to change any of the fees upon 30 days' prior written notice to Customer. Customer's continued use of the Services subsequent to any change in the fees will be deemed acceptance of such charges. If Customer disagrees with a fee change, it may terminate this Agreement pursuant to Section 7.
(h) Collection Costs. Customer will reimburse the Company for reasonable costs of collection, including attorneys' fees, to the extent permitted by law.
(a) Term. The Initial Term is month to month beginning on the Effective Date stated in the Order Form.
(b) Renewal. Each previous term will automatically renew for successive 12-month terms unless either party gives written notice of non-renewal at least 30 days before the end of the then-current term.
(c) "Term" shall mean, collectively, the Initial Term and any renewal periods.
(d) Termination for Cause. Either party may terminate this Agreement or any Order Form for material breach if not cured within 10 days after receipt of written notice thereof, provided that the Company may terminate this Agreement, or any Order Form, immediately if the Company has a reasonable belief that Customer has engaged in: (i) fraud; (ii) security abuse; (iii) a violation of any Additional Policy or the AUP; (iv) nonpayment beyond suspension; (v) legal or compliance risk; or (vi) Customer's circumvention of mandatory payments (if applicable).
(e) Termination by Customer. Customer may terminate this Agreement or any Order Form if it disagrees with a fee change under Section 6(g).
(f) Termination for Convenience by Company. The Company may terminate this Agreement or any Order Form for convenience upon thirty (30) days' written notice to Customer. If the Company terminates for convenience, Company will refund Customer any prepaid, unused Fees covering the period after the effective termination date. Customer has no right to terminate for convenience during the Initial Term, and termination does not relieve Customer of payment obligations accrued prior to the effective termination date.
(g) Effect of Termination. Upon termination, Customer's right to access the Software and the Services shall terminate, except any limited access needed solely to export data as provided below, and will automatically terminate any outstanding Order Forms, unless the parties agree otherwise.
(h) Right to Suspend Services. The Company may suspend access to and use of the Services at any time, upon written notice to Customer, if the Company determines in good faith that (i) Customer's or any Authorized Users' activities or use of the Services violates this Agreement (including the AUP, any of the Additional Policies, applicable law, the intellectual property rights of a third party, or are otherwise disruptive or harmful to the Company or any third party; (ii) the Company is required to do so by applicable law; (iii) there is any violation of any of the terms of Section 3(b); (iv) there is any use of the Services by Customer or any Authorized User that threatens the security, integrity, or availability of the Services; or (v) information in any Account is untrue, inaccurate, or incomplete. Suspension under this Section 7(i) will not relieve Customer's obligation to pay any fees payable to the Company during the suspension period. In such circumstances, the Company will endeavor to provide Customer with an opportunity to resolve any issue prior to initiating a suspension. However, in certain circumstances, including but not limited to where Customer's use disrupts the security, integrity, or availability of the Services, or where the Company is required to do so by law, the Company reserves the right to suspend Customer's access and use immediately upon notice. Following suspension, both parties shall engage in good faith to remedy or address the underlying cause for such suspension.
(a) Ownership. Customer shall retain ownership of all of its Customer Data; provided that Customer hereby grant the Company a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty free license and right to copy, distribute, process, display, publish, prepare derivative works of, and otherwise use the Customer Data as necessary to provide the Services in a manner that is consistent with this Agreement and the Company's Privacy Policy, and to improve and develop the Company's products and services. As part of this limited license, Customer acknowledges and agrees that the Company may use artificial intelligence in order to provide and optimize the Services. Customer represents and warrants to the Company that it has all rights necessary to grant this license and that its provision and use of Customer Data through and in connection with the Services does not violate any applicable law or rights of any third party. The Company shall retain ownership of the Software, the Website, the Services, and all intellectual property rights related thereto.
(b) Processing. The Company may process Customer Data to provide the Services and as permitted by the DPA and this Agreement.
(c) Usage Data; De-Identified Data and Aggregated Data; Benchmarking; Commercial Use.
(i) Usage Data. Notwithstanding anything in this Agreement to the contrary, the Company may collect and use Usage Data to operate, maintain, secure, support, and improve the Software and the Services.
(ii) De-Identified Data. "De-Identified Data" means data derived from Customer Data that cannot reasonably be used to infer information about, or otherwise be linked to, a particular consumer or household, and that the Company maintains and uses in a de-identified form.
(iii) Creation and Safeguards. The Company may create De-Identified Data and aggregated data from Customer Data, will maintain reasonable technical and organizational safeguards designed to prevent re-identification, and will maintain policies and procedures requiring that De-Identified Data remain de-identified.
(iv) No Re-Identification. The Company will not attempt to re-identify De-Identified Data, except to the extent required to test and validate de-identification processes or as permitted by applicable law.
(v) Use and Disclosure for Lawful Purposes. The Company may use and disclose De-Identified Data and aggregated data for any lawful purpose, including analytics, benchmarking, product improvement, industry reports, and commercialization/monetization, provided that such De-Identified Data and aggregated data is not reasonably linkable to any identified or identifiable individual.
(vi) No Identification of Customer. The Company will not publicly disclose De-Identified Data in a manner that identifies Customer or Customer's end clients as the source, except with Customer's written consent or as required by law.
(vii) Downstream Restrictions. If the Company discloses De-Identified Data to third parties, the Company will require such third parties to agree not to attempt to re-identify the data and to maintain it in de-identified form.
(d) Export. Upon written request within 30 days after termination, the Company will provide a one-time export of Customer Data in CSV and/or JSON. The Company may charge a reasonable administrative fee for exports requiring non-standard effort.
(e) Deletion. The Company will delete Customer Data that is not De-Identified Data within 30 days after termination, except as required for legal compliance, backups, security, fraud/risk, disputes, or payment/chargeback obligations.
(a) Confidential Information. Each party may receive the other's Confidential Information.
(b) Obligations. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(i) not access or use Confidential Information of the Disclosing Party other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(ii) except as may be permitted by and subject to its compliance with Section 9(c), not reveal, disclose or permit access to Confidential Information of the Disclosing Party other than to its personnel who: (A) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (B) have been informed of the confidential nature of the Confidential Information; and (C) are bound by confidentiality and restricted use obligations in substantially similar effect as the terms set forth in this Section 9(b);
(iii) safeguard and protect the Confidential Information of the Disclosing Party from theft, piracy or unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(iv) ensure its personnel and other representatives' compliance with, and be responsible and liable for any of its personnel and other representatives' non-compliance with, the terms of this Agreement, including this Section 9; and
(v) notify the Disclosing Party upon discovery of any prohibited use or disclosure of the Confidential Information of the Disclosing Party, or any other breach of these confidentiality obligations by the Receiving Party, and shall cooperate with the Disclosing Party to help the Disclosing Party regain possession of its Confidential Information and prevent the further prohibited use or disclosure of that Confidential Information.
(c) Compelled Disclosures. If the Receiving Party or any of its personnel or other representatives are compelled by law to disclose any Confidential Information of the Disclosing Party then, to the extent permitted by law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section 9(c); and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9(c), the Receiving Party remains required by law to disclose any Confidential Information of the Disclosing Party, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment. Notwithstanding the foregoing, the restrictions and requirements herein shall not apply to, and the Receiving Party and its personnel and other representatives may disclose and retain copies of, Confidential Information of the Disclosing Party in connection with the Receiving Party's and its personnel's and other representatives' compliance with legal, financial or regulatory filings, audits or examinations or as otherwise required by law.
(d) Injunctive Relief. Each party acknowledges that any unauthorized disclosure of the other party's Confidential Information, infringement or misappropriation of the other party's intellectual property, or unauthorized access to or use of the Services may cause irreparable harm for which monetary damages may be inadequate. Accordingly, the non-breaching party may seek immediate injunctive or equitable relief in addition to any other remedies available at law.
(a) Company Reservation of Rights. Except for the limited license given above, nothing in this Agreement grants Customer any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, the Software, the Website, the Documentation, any Third Party Tools, or any goodwill of the Company, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to (including all license under) any such Intellectual Property Rights are and will remain with the Company and the respective rights holders in the Third Party Tools.
(b) Feedback. Customer grants the Company a perpetual, irrevocable, royalty-free right to use feedback or suggestions without obligation.
(c) Publicity. The Company may identify Customer as a customer (name and logo) unless Customer opts out in writing.
If Customer uses SMS/messaging in any of the Services, the SMS Addendum shall apply. Customer is solely responsible for consent, content, and compliance therewith. Segment billing is defined in the SMS Addendum.
If Customer enables any AI/agentic features as part of the Services, the AI Addendum shall apply. Customer is responsible for verifying outputs, and AI actions are treated as Customer actions.
(a) Customer Indemnity. Customer will defend, indemnify, and hold harmless Company from third-party claims arising from: (i) Customer Data; (ii) Customer's business practices; (iii) messaging consent/content; (iv) its (or its Affiliates') misuse of the Services; (v) violation of applicable laws or the AUP; and (f) disputes between Customer and its personnel or other representatives.
(b) Company IP Indemnity. The Company will defend and indemnify Customer from third-party claims alleging that any of the Services infringe U.S. patents, copyrights, or trademarks, and shall pay damages finally awarded, provided Customer promptly notifies the Company of the same and permits the Company to control defense and settlement.
(c) Remedy. If infringement is alleged, the Company may modify, replace, or terminate the affected Services and refund prepaid, unused Fees for the terminated portion.
(d) Exclusions. The Company has no obligation for claims arising from Customer Data, third-party products (including, without limitation, Third Party Tools), Customer configurations/instructions, or use outside of the Documentation.
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION.
(a) No Indirect Damages. NEITHER PARTY IS LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA, OR GOODWILL.
(b) Cap. THE COMPANY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES IN THE 12 MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM.
(c) Carveouts. Sections 15(a) and 15(b) do not limit (i) Customer's payment obligations, or (ii) liability for the Company's willful misconduct.
The relationship between the parties is that of independent contractors and not principal/agent, joint venturer, employee/employer, or partners. Neither party has any authority to bind or otherwise obligate the other party in any manner, and neither party may represent to anyone that it has a right to do so. In particular, the Company does not direct or control the business of Customer or how Customer choose to use any of the Services.
The parties will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. If those attempts fail, then the dispute will be mediated by a mutually acceptable mediator to be chosen by the Company within twenty (20) days after written notice from either party demanding mediation. The parties will share the costs of the mediation equally. Any dispute which the parties cannot resolve through negotiation or mediation within sixty (60) days of the date of the initial demand for it by one of the parties may then be submitted to binding arbitration under the rules of the American Arbitration Association for resolution. Nothing in this Section 17 will prevent either party from resorting to judicial proceedings if interim relief from a court is necessary to prevent serious and irreparable injury
(a) Governing Law. This Agreement shall be interpreted under and governed by the laws of the State of Delaware. The parties to this Agreement agree and consent to the courts and jurisdiction of the State of California, Contra Costa County or, in the federal courts for the Northern District of California.
(b) Assignment. Customer may not assign this Agreement without the Company's written consent. The Company may assign this Agreement to an Affiliate or in connection with a merger, acquisition, or sale of its assets without consent of Customer.
(c) Force Majeure. A "Force Majeure Event" shall mean any event which is beyond the reasonable control of a party and which is unavoidable even with reasonable care of the affected party, including but not limited to government act, force of nature, fire, explosion, storm, flood, earthquake, tide, lightning or war. However, deficiency of credit, fund or financing may not be deemed as an event beyond the reasonable control of a party. The party who is affected by the Force Majeure Event and seeks exemption from the obligation to perform under this Agreement shall notify the other party of such exemption event as soon as possible and provide to the other party details of Force Majeure Event and relevant supporting documents within fifteen (15) days after the written notice is given, explaining the reasons for such failure to perform, incomplete performance or delay in performance. When the performance of this Agreement is delayed or prevented due to any Force Majeure Event, the party affected by the Force Majeure does not need to undertake any liability under this Agreement to the extent of the performance being delayed or prevented. The party affected by Force Majeure shall take appropriate measures to mitigate or remove the effect of Force Majeure and endeavor to resume the performance of the obligations delayed or prevented as a result of Force Majeure. Upon removal of Force Majeure Event, the parties shall make their best efforts to resume the performance under this Agreement.
(d) Notices. Notices are effective when sent by email to the addresses in the Order Form. Legal notices must also be mailed to the parties' business addresses.
(e) Entire Agreement. This Agreement (along with the exhibits and attachments hereto) is the entire agreement and supersedes prior understandings.
(f) Severability. In the event that any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be limited or eliminated to the minimum extent necessary to render such provision enforceable and, in any event, the remainder of this Agreement will continue in full force and effect to the maximum extent permitted by law.
(g) Modifications. The Company may, in its sole discretion, modify this Agreement at any time. Any changes made will become effective when the Company posts a modified version of the Agreement to __________________ (or such other URL as specified by the Company). Changes to this Agreement will not be retroactive but will apply to any subsequent access and use of the Services. When material changes are made to this Agreement, the Company will notify Customer on the Platform or by email. Any login to an Account or any attempt by Customer or an Authorized User to access the Platform beyond the date of any such notice constitutes Customer's acceptance of the updated version of this Agreement, and the updated version will be effective and binding. The updated version of this Agreement supersedes all prior versions. It is Customer's obligation to ensure that it has read, understands, and agrees to the latest version of the Agreement.
(h) Electronic Communications and Signatures. The parties agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, the parties hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
(i) Survival. Sections relating to fees, confidentiality, intellectual property rights, indemnities, limitations, dispute resolution, and data obligations survive termination.