These Terms of Service are effective immediately upon your execution of an Order Form, Master Services Agreement, Statement of Work or other agreement (each, a “Governing Agreement”) with Speakeasy AI (“SEAI”) or if you have been granted access to an SEAI account. If you have not entered into a Governing Agreement with SEAI, then by accessing or using the Services (defined below), you agree to be bound by these Terms of Service. Please be aware that your initial and/or continued use of our Services constitutes your acceptance of these Terms of Service.
In these Terms of Service (referred to as these “Terms” or this “Agreement”), the terms “you”, “your”, or “Customer” refer to you or your customers. If you are provisioning an account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to us that you have the authority to bind that organization to these Terms (and, in which case, the terms “you”, “your”, or “Customer” refer to that organization). The terms “we”, “us,” “our” “Supplier” or “SEAI” refer to Open Water Development LLC dba Speakeasy AI, a Connecticut corporation, located at 14 Cove Ridge Lange, Old Greenwich, CT 06870. Your access to and use of the Services are expressly conditioned on your acceptance of and compliance with these Terms. The term “Parties” shall mean Customer and Supplier, and the term “Party” shall mean either Customer or Supplier, as the case may be.
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND SPEAKEASYAI. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT THESE TERMS, LOG INTO A SPEAKEASYAI ADMIN CONSOLE, OR USE THE SERVICES.
THE SERVICES ARE INTENDED FOR BUSINESS USE OR USE IN CONNECTION WITH AN INDIVIDUAL’S TRADE, CRAFT, OR PROFESSION ONLY.
Customer desires to procure from Supplier, and Supplier desires to provide to Customer and its Affiliates, on a non-exclusive basis, certain services described in this Agreement on the terms and conditions specified herein. As used herein, “Affiliate” shall mean, as to any entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity.
NOW, THEREFORE, for and in consideration of the premises and mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and Supplier agree as follows:
- STRUCTURE OF AGREEMENT AND DEFINITIONS.
(a) Structure of Agreement. This Agreement includes each of the exhibits and schedules attached to this Agreement. Unless otherwise expressly stated, references to specific exhibits include all numbered subsidiary exhibits and schedules.
(b) Order of Priority. In the event of a conflict between (a) a provision in the body of this Agreement and a provision in any Exhibit, the provision in the body of this Agreement shall prevail; or (b) a provision in this Agreement or an Exhibit to this Agreement and a provision in a Governing Agreement or an attachment thereto, the provision in this Agreement or the Exhibit to this Agreement shall control (except for express deviations from the Agreement or Exhibit agreed to by the Parties in such Governing Agreement).
- TERM. The term of your agreement with Speakeasy AI is defined in the Order Form. By beginning and/or continuing to use any of SEAI’s services you accept these Terms of Service.
- SERVICES. (a) Services. As used herein, the “Services” shall mean the services, activities and responsibilities to be performed by Supplier pursuant to this Agreement and the Governing Agreement to which this Agreement applies.
(b) Materials. Supplier shall be responsible for providing all labor, materials, services, facilities, equipment and other resources necessary to perform the Services and satisfy its obligations under this Agreement, excluding any items explicitly identified in a Statement of Work as being provided by Customer.
(c) Liens. Supplier shall keep the real and personal property of Customer free and clear of all liens or lien claims, including any resulting from a failure by Supplier to comply with its obligations with respect to Supplier Agents. Should any lien or lien claim be asserted for any reason, Customer may at its sole discretion: (i) pay the amount of such lien or lien claim and deduct the amount paid from any Fees owed to Supplier, (ii) demand a corrected invoice showing a credit for such amounts from payments due to Supplier or (iii) require Supplier to obtain a properly executed release of lien satisfactory to Customer. As used herein, “Supplier Agents” shall mean the employees, agents, subcontractors and representatives of Supplier.
(d) Non-Exclusive Arrangement. The Parties acknowledge and agree that this is a non-exclusive arrangement and that Customer may, without penalty, obtain from a third party service provider any service, activity, responsibility or task that is within the scope of Services and may perform any such service, activity, responsibility or task internally.
- SERVICE PERFORMANCE MANAGEMENT. (a) Service Levels. Commencing on the Effective Date, Supplier shall perform the Services in accordance with the Service Levels set forth in the Production Support Plan (“Service Levels”) annexed hereto as Exhibit 1. With respect to those Services for which a Service Level is not set forth, Supplier shall perform such Services in manner and at a level consistent with the professional standards used by second
tier providers of substantially similar services.
(b) Supplier Excuse. Supplier shall be excused from its obligation to perform the affected Services solely to the extent that, and for so long as, all of the following requirements are satisfied (collectively, the “Supplier Excuse”): (i) there occurs a failure by Customer (or a Customer Agent) to perform its obligations under this Agreement or a Statement of Work where Supplier’s ability to perform is expressly dependent upon such performance by Customer; (ii) Supplier’s performance of the Services is prevented by such failure to perform; and (iii) Supplier demonstrates to Customer that Supplier could not have continued performance through an alternative solution (a “Workaround”); provided, that Supplier’s right to a Supplier Excuse shall be conditioned on Supplier providing to Customer a notice setting forth a description of occurrence or condition on which the request for a Supplier Excuse is based as soon as practicable, but in any event not later than two (2) days after Supplier knew or should have known of Customer’s (or Customer Agent’s) failure to perform the obligations giving rise to the claim for relief. As used herein, “Customer Agent” shall mean the employees, contractors, suppliers and representatives of Customer, other than Supplier and Supplier Agents.
- SUPPLIER SERVICE LOCATIONS. Supplier shall ensure that the Customer Data and the Systems on which Customer Data is processed or stored are at all times physically and logically separated from data and systems used for other customers of Supplier. As used herein, “Customer Data” shall mean (i) any information that either individually or when combined with other information, can be used to identify a specific individual or derive information specific to a particular individual, and any information or data related to the current, past or potential employees or customers of Customer or its Affiliates, including, but not limited to, a persons first and last name, home address, telephone number, social security number, banking information or the like (“Personal Data”); and (ii) all data and information (x) submitted to Supplier or Supplier Agents by or on behalf of Customer, (y) obtained, developed or produced by in connection with provision, receipt of use of the Services and Deliverables or (z) to which Supplier or Supplier Agents have access in connection with the provision of the Services and Deliverables. As used herein, “Systems” shall mean the software and the machines, collectively, used to provide the Services. As used herein, “Deliverable” shall mean any software, configuration, customization, product, report, documentation or other item to be developed or otherwise provided by Supplier to Customer pursuant to this Agreement.
- PERSONNEL AND SUBCONTRACTORS. (a) Service Delivery Organization.
(i) Supplier shall appoint to the Service Delivery Organization a sufficient number of individuals to perform the Services and satisfy the Service Levels and shall assign individuals with suitable training, education, experience and skills to perform the Services and the responsibilities of the position to which such individual is assigned. Upon request, Supplier shall provide Customer
with a list of all members of the Service Delivery Organization. As used herein, “Service Delivery Organization” shall mean the personnel of Supplier and Supplier Agents who provide the Services.
(ii) Supplier shall at its expense, conduct or cause to be conducted in compliance with all applicable Laws the following background screenings on each individual who is part of the Service Delivery Organization: (1) a credit check; (2) a criminal background check in all counties in which the candidate has lived in for the past seven (7) years; (3) a National Criminal Database search; (4) a Sex Offender Registry search; (5) an education check of highest degree obtained; (6) an OFAC search; and (7) a social security number verification. For those individuals who are the following (1) assigned full-time to the provision of Services to Customer, (2) have unescorted badge access to Customer’s property, or (3) who require rights to access the secured or restricted areas of the information technology environment of Customer that requires Customer to issue a user name and password or similar credentials to such individual, Supplier shall ensure that the required background screening is conducted within twelve (12) months prior to assigning such individual to perform Services under the Agreement. Supplier shall not and shall cause the Supplier Agents not to assign any individual to perform the Services that fails to pass such screening, and Supplier shall notify Customer immediately if any individual performing Services for Customer does not pass a background screening or commits an act or otherwise becomes involved in circumstances that would cause the individual to later not pass a background screening. Supplier represents and warrants that all individuals performing Services were screened by Supplier at the time of hire and successfully completed all training required by Supplier and Supplier has no knowledge of any activity that would raise a ‘flag’ on or otherwise cause a non-passing or non-clean result in the background screenings for such individuals.
(iii) With respect to any member of the Service Delivery Organization that Customer believes is (1) not conducting him or herself in accordance with the Customer code of conduct, (2) improperly providing the Services or not adequately complying with this Agreement, (3) engaged in conduct that is criminal, fraudulent or likely to cause harm to Customer’s employees or property, or (4) otherwise not suitable for or effective in the position to which such individual is assigned, Supplier shall, upon Customer’s request, immediately remove such individual from the Service Delivery Organization.
(iv) Upon resignation, termination or removal of an individual from the Service Delivery Organization, Supplier shall (1) terminate the individual’s access to the Customer’s facilities, (2) notify Customer of such resignation, termination or removal; (3) revoke any credentials afforded to the individual that would permit the individual to access the facilities or systems of Customer; and (4) prohibit the individual from accessing the Customer Data, Deliverables and any Confidential Information.
(b) Subcontractors. Supplier shall have the right from time to time to engage subcontractors to provide any of the Services. Supplier shall ensure that all subcontractors comply with the terms and conditions of this Agreement. No subcontracting shall release Supplier from its responsibility for its obligations under this Agreement and Supplier shall be responsible for the acts and omissions of subcontractors and all payments to subcontractors.
- PROPRIETARY RIGHTS. (a) Ownership of Deliverables. Customer shall own all right, title and interest (including IP) in and to the Deliverables. Customer shall have rights to any Supplier IP and third party IP embedded in such Deliverable pursuant to this Section 7(a). Supplier hereby irrevocably and perpetually assigns, transfers and conveys to Customer (and Supplier shall, and shall cause the Affiliates of Supplier and Supplier Agents to irrevocably and perpetually assign, transfer and convey to Customer) without further consideration all of its and their worldwide right, title and interest in and to such Deliverables, including all rights of patent, copyright, trade secret or other proprietary rights in and to such materials. Supplier acknowledges, and shall cause Supplier Agents to acknowledge, that Customer and the successors and permitted assigns of Customer shall have the right to obtain and hold in their own name any IP rights in and to the Deliverables. In the event that Supplier, its Affiliates or the Supplier Agents refuse or fail to execute any such documents or take any such actions, Supplier hereby appoints Customer as it agent for the limited purpose of executing such documents and taking such actions on behalf of Supplier, its Affiliates and Supplier Agents. To the extent any Supplier IP or third party IP is embedded or incorporated into any Deliverable, Supplier hereby grants a global, royalty-free, irrevocable, perpetual, sub-licensable, non-exclusive license to the Customer to use such Supplier IP, or third party IP as incorporated into and for the purpose of making full and proper use of the Deliverables. The Customer and its Affiliates may not extract such Supplier IP or third party IP from the Deliverables for use separately therefrom, except to the extent necessary to prepare updates, enhancements, or modifications to the Deliverables. As used herein, “IP” shall mean any patents, copyrights, trademarks, trade secrets, and other proprietary or intellectual property rights. As used herein, “Supplier IP” shall mean the IP used in connection with the Services that is (a) owned, acquired or developed by Supplier or (b) licensed, leased or otherwise obtained by Supplier from a third party (other than Customer or Customer Agents) and any modifications or derivations of works of the foregoing that are created by Supplier or Supplier Agents
(b) Supplier IP. Supplier shall retain all right, title and interest (including IP) in and to the Supplier IP. During the Term of this Agreement, Supplier hereby grants to the Customer and its Affiliates a global, perpetual, royalty-free, irrevocable, sub-licensable, non-exclusive license to Customer to use the Supplier IP in connection with the receipt and use of the Services and Deliverables. The license granted in the
preceding sentence shall extend to third parties providing products and services to the Customer to the extent necessary or helpful to the provision of such services; provided, that such third parties are bound by confidentiality obligations similar to those of Customer under this Agreement and Customer causes such third parties to comply with the terms of the license.
- FORCE MAJEURE. (a) Force Majeure. Neither Party will be liable for any failure to perform its obligations under this Agreement to the extent caused by any act of God, fire or explosion, flood, war, terrorism, riot, or act of Governmental Authority (“Force Majeure Event”) and the impacted delivery and performance dates will be extended by the period of the Force Majeure Event; provided, that the Party prevented from performing its obligations (the “Affected Party”): (i) has promptly notified the other Party upon becoming aware that any Force Majeure Event has occurred or is likely to occur, (ii) has used commercially reasonable efforts to implement a workaround and to minimize any delay in or interference with the performance of its obligations under this Agreement and (iii) did not cause or contribute to the cause of the Force Majeure Event. If a Force Majeure Event prevents Supplier from performing any portion of its obligations under this Agreement, then Customer shall be relieved of the obligation to pay Supplier any Fees for any such affected Services; provided, however, a Force Majeure Event shall not otherwise excuse payment of any Fees due from Customer to Supplier. If a Force Majeure Event prevents Supplier from performing any portion of its obligations under this Agreement for five (5) days or more, then Customer may, (i) at Supplier’s expense, procure substitute services from an alternative source and (ii) until such obligations are restored in full, elect to terminate, in whole or in part, the affected Order Document or the affected Services upon written notice to the Supplier. The occurrence of a Force Majeure Event shall not excuse the Supplier’s obligation to execute the BCDR Plan and recover the Services in accordance with Section 8(c). As used herein, “Governmental Authority” shall mean any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international. (b) Allocation of Resources. Whenever a Force Majeure Event or a Disaster causes Supplier to allocate limited resources between or among Supplier’s customers, Supplier shall not provide any other customers with priority over Customer with respect to the allocation of such resources. In addition, in no event shall Supplier redeploy or reassign any personnel assigned to the Service Delivery Organization to another account in the event of a Force Majeure Event. As used herein, “Disaster” shall mean (a) a “disaster” as defined in the BCDR Plan, (b) an event declared by the Company be a disaster, or (c) any event or circumstance resulting in the inability of Customer to access and use the Services for more than two (2) hours.
(c) Disaster Recovery Plan. In the event of a Disaster, Supplier shall implement its business continuity and disaster recovery plan (the “BCDR Plan”) and shall provide the Services to Customer from the alternate site. At a minimum, the BCDR Plan shall require Supplier to: (i) maintain an alternate Supplier Service Location containing all Software, Systems and personnel required to provide the Services; (ii) redundant connectivity between (x) the Customer sites and the primary Supplier Service Location and (y) the Customer site and the alternate Supplier Service Location; and (iii) an independent power supply at each Supplier Service Location that is capable of supporting the continued provision of the Services in the event of a power outage. Each Party shall promptly notify the other Party in the event it becomes aware of the occurrence of a Disaster or that a Disaster is reasonably likely to impact the provision, receipt or use of the Services by Customer. Upon the occurrence of a Disaster, Supplier shall implement the BCDR Plan and restore the Services within twenty four (24) hours and recover the Customer Data to a point that is no longer than one (1) hour prior to the occurrence of the Disaster. If a Disaster prevents the Supplier from performing any portion of its obligations under this Agreement for five (5) days or longer, then Customer may immediately terminate this Agreement, in whole or in part, upon written notice to the Supplier.
- PAYMENTS AND INVOICING. The fees for the Services and Deliverables provided under this Agreement (the “Fees”) shall be set forth in each Order Form or other Governing Agreement.
- TAXES. Any sales, use or service taxes resulting from the performance of the Services or provision of the Deliverables that are identified by Supplier to Customer in advance and stated as a separate line item on the invoice for the Services to which such taxes apply shall be the responsibility of Customer (“Service Taxes”). Supplier shall be responsible for and shall pay to the appropriate taxing authority all Service Taxes collected from Customer. In the event that Supplier fails to identify or charge any Service Taxes and the taxing authorities determine that Service Taxes are due, Supplier shall be responsible for and shall pay the Service Taxes to the appropriate taxing authority. In addition, Supplier shall be responsible for and shall pay any interest, levies and penalties related to any failure or delay by Supplier in invoicing for or paying Service Taxes. With respect to any claim by a Governmental Authority for a tax for which Customer is alleged to have a reimbursement obligation under this Agreement, Customer may participate with Supplier in defense of the claim for such tax.
- RECORD RETENTION. During the Term and for a period of two (2) years thereafter, Supplier shall and shall cause the Supplier Agents to retain records and supporting documentation sufficient to verify the (a) the Fees, Service Taxes and related financial matters under this Agreement; (b) the Services, Deliverables, and Service Levels; and (c) all other transactions, reports and filings resulting from the performance of this Agreement.
- CONFIDENTIAL INFORMATION, DATA SECURITY AND PRIVACY. (a) Confidential Information. From time to time, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally, electronically or in physical form, confidential or proprietary information of or in the possession of the Disclosing Party (including confidential or proprietary information of a third party that is in the possession of the Disclosing Party) in connection with this Agreement. The term “Confidential Information” shall include all information and data which at the time of disclosure either: (i) is marked as “Confidential” or “Proprietary”, (ii) is otherwise reasonably identifiable as the confidential or proprietary information of the Disclosing Party, or (iii) should reasonably be understood to be confidential or proprietary information of the Disclosing Party given the nature of the information and the circumstances surrounding its disclosure. Neither Party shall disclose the Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party and shall only access and use the Confidential Information as required to and for the limited purpose of performing its obligations under this Agreement; provided, that each Party may disclose Confidential Information of the other Party to its employees, contractors and professional advisors who need to know such information in order to perform their obligations related to this Agreement and who are contractually bound by confidentiality obligations that are at least as protective as those in this Agreement. Each Party shall use commercially reasonable care and discretion to avoid unauthorized use, disclosure, publication or dissemination of Confidential Information (which shall be no less than the standard of care used by a Party to protect its Confidential Information of a similar nature and shall require each Party to satisfy its other obligations under this Agreement). The Receiving Party will be responsible for any breach of this Section by its employees, representatives, and agents and any third party to whom it discloses Confidential Information in accordance with this Section. Upon the request of a Disclosing Party, the Receiving Party shall deliver to the Disclosing Party or destroy all copies of the Disclosing Party’s Confidential Information. The Receiving Party agrees to certify in writing to the Disclosing Party that it and each of its Affiliates has performed the foregoing, if requested.
(b) Exclusions. For purposes hereof and excluding Personal Data which shall always be deemed to be Confidential Information, the term Confidential Information will not include any information that the Receiving Party can establish by convincing written evidence: (i) was independently developed by the Receiving Party without use of or reference to any Confidential Information belonging to the Disclosing Party; (ii) was acquired by the Receiving Party from a third party having the legal right to furnish same to the Receiving Party; or (iii) was at the time in question (whether at disclosure or thereafter) generally known by or available to the public (through no fault of the Receiving Party).
(c) Required Disclosures. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency; provided, that the Receiving Party gives prompt notice to the Disclosing Party of any such order and reasonably cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, to resist such order or to obtain a protective order.
(d) Data Security.
(i) Ownership of Customer Data. All Customer Data (whether in tangible or intangible form) is, or shall be, and shall remain the property of Customer and shall be considered Confidential Information of the Customer. Upon request by Customer at any time during the Term, Supplier shall: (a) promptly provide to Customer, in the format and on the media requested by Customer, a copy of all or any part of the Customer Data; (b) promptly return to Customer, in the format and on the media requested by Customer, all or any part of the Customer Data; and (c) erase or destroy all or any part of the Customer Data in Supplier’s possession, in each case to the extent so requested by Customer. Any archives containing the Customer Data shall be used by Supplier and Supplier Agents solely for back-up purposes.
(ii) Retention. Supplier will store conversational data and associated audio files on a three (3) month rolling basis, after which time, the data will be securely and permanently deleted.
(iii) Security Requirements. Supplier shall and shall cause Supplier Agents to implement, maintain and enforce administrative, physical, logical, and other security measures to prevent the unauthorized access, use, corruption, loss or disclosure of Customer Data and Confidential Information of Customer that are consistent with more stringent of the following: (1) industry best practices; (2) the information security policies of Supplier; (3) Laws and Regulatory Requirements applicable to the protection and use of Customer Data and Confidential Information. Supplier shall and shall cause the Supplier Agents to encrypt all Customer Data during storage and transmission and shall provide proper, secure and lawful storage, transmission and disposal of the Customer Data and Confidential Information. As used herein, the term “Regulatory Requirements” means the Laws which apply specifically to the business and industry of Customer, including Privacy Laws, as such Laws are applicable to the Services and the obligations of Supplier and Supplier Agents under this Agreement.
(iv) Security Incident. If Supplier believes of, or has reason to believe of any (1) unauthorized access, use, corruption, loss or disclosure of Customer Data or Confidential Information; or (2) any breach or potential breach of the safety and security procedures required under this Agreement (a “Security Incident”), Supplier shall (A) promptly notify Customer of such Security Incident, (B) promptly start an investigation of the Security Incident and take all appropriate actions to remediate the effects of the Security Incident and mitigate any risk that may arise from the Security Incident, (C) preserve all records and other evidence relating to the Security Incident and (D) provide Customer with a written report on the outcome of its investigation including any risk to Customer Data and Confidential Information, the corrective action Supplier will take, or has taken, to respond to the Security Incident and such other information as Customer may reasonably request. If the Security Incident was caused by the acts or omissions of Supplier or Supplier Agents or caused by a third party as a result of a breach of this Agreement by Supplier or Supplier Agents, then Supplier shall (A) provide Customer with a corrective action plan describing the actions Supplier will take, or has taken, to respond to the Security Incident and such other information as Customer may reasonably request; (B) remediate the effects of the Security Incident and mitigate any risk that may arise from the Security Incident, and (C) provide Customer with assurance satisfactory to Customer that such Security Incident shall not recur. Customer may disclose the occurrence of a Security Incident in connection with notice to Customer’s customers, potential customers, employees or law enforcement agencies. Supplier shall cooperate in good faith regarding the timing and manner of: (A) any notification to affected persons concerning a Security Incident and (B) disclosures to appropriate Governmental Authorities. If the Security Incident was caused by the acts or omissions of Supplier or Supplier Agents or caused by a third party as a result of a breach of this Agreement by Supplier or Supplier Agents, Supplier shall reimburse Customer for any Losses and Notice Related Costs incurred in connection with a Security Incident, subject however to the provisions of Section 14 below. As used herein, “Losses” shall mean any losses, liabilities, damages, fines, penalties, assessments, defaults, deficiencies, interest and expenses (including taxes), and any related claim, judgment, settlement, award, investigation, proceeding and litigation (including fees, expenses and other costs of attorneys, accountants, professional advisors and other experts incurred in connection with the defense or settlement of any of the foregoing).
(e) Security Audits. Supplier shall conduct regular self-testing and independent audits to ensure compliance by Supplier and Supplier Agents with this Agreement and all applicable Laws and Regulatory Requirements, including all confidentiality, non-disclosure, security, disaster recovery, contingency planning, and obligations applicable to Supplier and Supplier Agents, and make the results available to Customer for review on request.
- REPRESENTATIONS AND WARRANTIES. (a) By Customer. In addition to the representations and warranties by Customer elsewhere under this Agreement, Customer represents and warrants that: (i) Customer has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement either on the Customer’s own behalf or on behalf of an organization; and (ii) the execution, delivery and performance of this Agreement by Customer (1) has been duly authorized by Customer and (2) shall not conflict with, result in a breach of or constitute a default under any other agreement to which Customer is a party or by which Customer is bound.
(b) By Supplier. In addition to the representations and warranties by Supplier elsewhere under this Agreement, Supplier represents and warrants that: (i) Supplier has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement; and (ii) the execution, delivery and performance of this Agreement by Supplier (1) has been duly authorized by Supplier and (2) shall not conflict with, result in a breach of or constitute a default under any other agreement to which Supplier is a party or by which Supplier is bound;
(c) Performance Representations, Warranties and Covenants. In addition to the representations and warranties in Section 13(b), Supplier represents, warrants and covenants that with respect to the Services: (i) Supplier shall use its commercially reasonable efforts to perform the Services as in accordance with the terms herein, on time, in a professional manner and in accordance with the generally accepted industry best practices; and (ii) Supplier will re-perform any Services that were not performed in accordance with the foregoing promptly after notice of same from Customer, and in a timely manner, at no additional cost to Customer.
- DISCLAIMERS AND LIMITATIONS OF LIABILITY. (a) Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND SUPPLIER DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES. AS USED HEREIN, “LAW” MEAN ANY DECLARATION, DECREE, DIRECTIVE, LEGISLATIVE ENACTMENT, ORDER, ORDINANCE, REGULATION, RULE OR OTHER BINDING RESTRICTION OF OR BY ANY GOVERNMENTAL AUTHORITY. (b) Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, PARTNERS, VENDORS AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND/OR THIS AGREEMENT AND ANY GOVERNING AGREEMENT, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(c) Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF SUPPLIER, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, PARTNERS, VENDORS AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND/OR THIS AGREEMENT AND ANY GOVERNING AGREEMENT WILL NOT EXCEED THE AGGREGATE OF THE FEES PAID BY YOU TO SUPPLIER FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
- ADDITIONAL COVENANTS. Supplier covenants and agrees with Customer that during the Term defined in the Order Form: (i) Supplier shall, at its sole cost and expense, obtain, maintain, and comply with all consents and Governmental Approvals for the: (a) use by Customer of the Deliverables, Supplier IP and other resources and materials provided by Supplier or Supplier Agents and (b) the provision, receipt and use of the Services and Deliverables. As used herein, “Governmental Approvals” shall mean all licenses, consents, permits, approvals and authorizations of any Governmental Authority, or any notice to any Governmental Authority;
(ii) none of the Services, Deliverables, Supplier IP, or any other resources or items provided by Supplier or Supplier Agents shall infringe upon the IP rights of any third party or misappropriate any trade secret, confidential information or other proprietary right of a third party, except to the extent such infringement is caused by (a) a modification, combination or use by Customer of the foregoing in a manner that is expressly prohibited by the related documentation provided by Supplier, or (b) failure by Customer to use, within a reasonable time following receipt, any new or corrected versions of the foregoing; provided, that Supplier has (1) given prior written notice to Customer that the use of such new or corrected version is required in order to avoid an infringement claim and (2) made the new or corrected version available to Customer at no cost;
(iii) No viruses, spyware, malware, worms, trap doors, disabling code or similar items (“Malicious Code”) shall be coded or introduced into the Deliverables or information technology environment of Customer by Supplier or Supplier Agents or by a third party as a result of a breach by Supplier of its obligations under this Agreement. Supplier shall use current version software to detect and eliminate any Malicious Code and shall apply any applicable updates and patches to such software. Supplier shall promptly notify Customer upon discovery of any Malicious Code. In the event Malicious Code is found to have been introduced into or affects the Deliverables, or information technology environment of Customer by Supplier or Supplier Agents or by a third party as a result of a breach of its obligations under this Agreement, Supplier shall notify Customer and remove such Malicious Code and assist Customer in reducing the effects of such Malicious Code and, if the Malicious Code causes a loss of operational efficiency or loss of data, Supplier shall restore such lost data and correct such loss of efficiency; and
- TERM, SUSPENSION and TERMINATION. (a) Term. These Terms of Service shall remain effective while you and your Customers have access to any SEAI system or service.
(b) Suspension and Termination. We may temporarily suspend or permanently terminate the Services, in our sole discretion, immediately upon notice to you for cause if, we in good faith: (i) reasonably suspects or determine that you or your Customers have breached the terms of this Agreement; (ii) Customer Data is subject to a claim of intellectual property infringement; (iii) if we detect the existence of any Malicious Code, fraudulent activity, or suspects any other malicious activity in your use of the AI Solution; (iv) you use more resources than it has been otherwise allocated; (v) we are required to do so by Law; or (vi) you fail to pay any Fees due to Supplier, and such failure continues after ten (10) business days’ notice to you. If we suspend the Services pursuant to this Section 16 (b), we will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you may incur in connection with any such suspension. (c) Termination By Supplier. In addition to its right to terminate this Agreement under Section 16 (b) above, Supplier may terminate this Agreement for any or no reason upon delivering notice to you no less than sixty (60) days prior to the effective date of such termination.
(d) Effect of Termination or Suspension. No termination or suspension of your or your customer’s or user’s access to or use of the Services shall relieve you of your outstanding payment obligations at the time of such termination or suspension.
(b) Indemnification By Customer. Customer shall indemnify, defend, and hold Supplier, Supplier Affiliates, and their respective officers, directors, employees, successors and permitted assigns (the “Supplier Indemnitees”, and together with the Customer Indemnitees, the “Indemnitees”) harmless from and against any and all claims made or threatened by any third party and all related Losses to the extent such Losses arise out of or relate to the following: (i) any negligent act or omission or willful misconduct by Customer or any Customer Agents, or (ii) any breach in a representation, covenant or obligation of Customer contained in this Agreement.
(c) Indemnification Procedures. If any third party claim is commenced against any of the Indemnitees, such Indemnitee shall promptly notify the indemnifying party, that is, Supplier or Customer, as the case may be (the “Indemnitor”), of such claim; provided, that any failure or delay in providing such notification shall only excuse the Indemnitor’s obligation to indemnify the Indemnitees to the extent that such failure or delay actually prejudices the defense of such claims. Indemnitor may participate, at its own expense, in the defense of such claim. Upon receipt of such notice, Indemnitor shall promptly assume the defense of such claim, with counsel reasonably satisfactory to the Indemnitee, and shall pay the reasonable fees and disbursements related to such proceeding. Indemnitor shall have the right to retain its own counsel, but the fees and expense of such counsel shall be at the expense of Indemnitor. Indemnitor shall pay or reimburse any fees and expenses incurred by the Indemnitees in the defense of such claim as they are incurred. Indemnitor shall not, without the prior written consent of the Indemnitee, effect any settlement of any pending or threatened proceeding in respect of which Indemnitee is or could have been a party and indemnity could have been sought under this Agreement by Indemnitee unless such settlement: (i) includes a full and final release of all threatened or pending claims against the Indemnitee(s); (ii) does not require any Indemnitees to make any admission of liability, fault or wrong-doing; and (iii) does not require any Indemnitees to take or refrain from taking any specific action. Indemnitee may assume control of the defense of any claim if: (x) it irrevocably waives its right to indemnity, or (y) without prejudice to its full right to indemnity (A) Indemnitor fails to provide reasonable assurance to Indemnitee of its financial capacity to defend or provide indemnification with respect to such claim, (B) Indemnitee determines in good faith that there is a reasonable likelihood that a claim would materially and adversely affect it or any other Indemnitee, other than as a result of monetary damages that would be fully reimbursed by the Indemnitor under this Agreement or (C) Indemnitor refuses or fails to timely assume the defense of such claim.
(d) Additional Infringement Remedies. In addition to any other rights or remedies afforded to Customer under this Agreement, at law or in equity, if the Deliverables or Services or any other resources or materials provided by Supplier or Supplier Agents are alleged to infringe any patent, copyright, trademark or other IP right of a third party or misappropriate any trade secret, confidential information or other proprietary rights of a third party, Supplier shall, at its expense, either: (i) obtain the rights and licenses required to permit Customer, and its Affiliates to continue using the Deliverables or Services; or (ii) modify the Deliverables or Services so that they are non-infringing and continue to satisfy the specifications and retrain Customer’s users and related technical staff in use of the modified Deliverables or Services.
- DISPUTE RESOLUTION. (a) Dispute Resolution. In the event of any dispute, controversy or claim of any kind or nature arising under or in connection with this Agreement (including disputes as to the creation, validity, interpretation, breach or termination of this Agreement) (a “Dispute”), upon the written request of either Party, each of the Parties will appoint a designated senior business executive whose task it will be to meet for the purpose of endeavoring to resolve the Dispute. The senior business executives will communicate with each other within three (3) business days of receipt of the written request for dispute resolution. Either Party may pursue its rights and remedies under this Agreement at any time.
(b) Continuity of Services. Supplier acknowledges that the timely and complete performance of its obligations pursuant to this Agreement is critical to the business and operations of Customer. Accordingly, in the event of a Dispute between Customer and Supplier, Supplier shall continue to so perform its obligations under this Agreement in good faith until the earlier of: (i) the Dispute is resolved; (ii) Supplier is instructed by Customer to discontinue its performance of the Services; (iii) Customer ceases acting in good faith in attempting to resolve the Dispute in Supplier’s sole discretion; or (v) Customer fails to pay the Fees required hereunder when due.
(c) Provision of Information. During the course of negotiations under this Section 18, all reasonable requests made by one Party to another for non-privileged information, reasonably related to the Dispute, will be honored in order that each of the Parties may be fully advised of the other’s position. All negotiation shall be strictly confidential and used solely for the purposes of settlement. Any materials prepared by one Party for these proceedings shall not be used as evidence by the other Party in any subsequent arbitration or litigation; provided, that the underlying facts supporting such materials may be subject to discovery.
(d) Equitable Remedies. The provisions and time periods specified in this Section 18 shall not be construed to prevent a Party from instituting, and a Party is authorized to institute, formal proceedings earlier to (i) avoid the expiration of any applicable limitations period, (ii) preserve a superior position with respect to other creditors, or (iii) address a claim arising out of the breach or anticipated breach of a Party’s obligations under Section 12 (Confidential Information, Data Security) or Section 18 (b) (Continuity of Services). The Parties acknowledge and agree that, notwithstanding the provisions of Sections 18(a) and (b), either Party may immediately pursue specific performance, injunctive or other equitable relief in connection with any breach or alleged breach of the provisions of this Agreement.
- Relationship. The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Customer or Supplier partners, joint venturers, franchisees, principals, agents or employees of the other. No officer, director, employee, Affiliate or Supplier Agent retained by Supplier to perform work on Customer’s behalf under this Agreement shall be deemed to be an employee of Customer, its Affiliates or a Customer Agent. Neither Party shall have any right, power or authority, express or implied, to bind the other.
- Miscellaneous. (a) Assignment. Customer shall not assign this Agreement, in whole or part, without the prior written consent of Supplier. This Agreement shall be binding on the Parties and their respective successors and permitted assigns. Any assignment in contravention of this Section shall be null and void and of no further effect.
(b) Consents, Approvals and Requests. Except where expressly provided as being in the sole discretion of a Party, where agreement, approval, acceptance, consent, confirmation, notice or similar action by either Party is required under this Agreement, such action shall not be unreasonably delayed or withheld. An approval or consent given by a Party under this Agreement shall not relieve the other Party from responsibility for complying in good faith with the requirements of this Agreement, nor shall it be construed as a waiver of any rights under this Agreement, except as and to the extent otherwise expressly provided in such approval or consent.
(c) Severability. To the fullest extent permitted by Law, if any provision of this Agreement, or the application thereof to any Person or circumstance, is held by a court of competent jurisdiction to be invalid or unenforceable, then (a) the court shall have the authority to modify and/or “blue pencil” this Agreement, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability.
(d) Waivers. No delay or omission by either Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
(e) Entire Agreement. This Agreement and any Governing Agreement entered into pursuant to or in connection with this Agreement, represent the entire agreement between the Parties with respect to its subject matter and supersedes all prior discussions and agreements between the Parties with respect to such subject matter.
(f) Amendments. Supplier may amend the terms of this Agreement from time to time. In such event, supplier we will give Customer notice of these changes at least 15 days before they come into effect.
(g) Survival. Sections 1 (Structure of Agreement and Definitions), 4(b) (Supplier Excuse), 7 (Proprietary Rights), 9 (Payments and Invoicing), 10 (Taxes), 11 (Record Retention), 12 (Confidential Information, Data Security and Privacy), 14 (Disclaimers and Limitations of Liability), 17 (Indemnification) and 20 (Miscellaneous) and, to the extent necessary, Exhibit 1 (Definitions), and any other provision of this Agreement which contemplates performance or observance subsequent to termination of or expiration of this Agreement, shall survive the expiration or termination of this Agreement.
(h) UCITA. The Parties agree that the Uniform Computer Information Transactions Act (UCITA), as assed by any state, will not apply in any way to this Agreement.
(i) Governing Law and Venue. This Agreement and the rights and obligations of the Parties under this Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to the principles thereof relating to the conflicts of Laws. The Parties hereby submit to the exclusive venue and jurisdiction in state and federal courts having jurisdiction over New York County, New York.
(j) Publicity. Neither party shall use the name, logo, trademark, trade name, or other mark of the other Party in advertising, sales promotions, press releases or publicity matters without the other Party’s consent.
(k) Incorporation and References. In this Agreement, except where otherwise provided or where the context expressly otherwise requires: (i) references to this Agreement include the Exhibits; references to any Exhibits include any Attachments thereto; (ii) references in this Agreement to any Law shall mean references to such Law in changed or supplemented form or to a newly adopted Law replacing a previous Law; (iii) words denoting the singular shall include the plural and vice versa and words denoting any gender include all genders; (iv) all dollar amounts are expressed in United States dollars (US$); (v) the division of this Agreement into separate Sections and Exhibits, and the insertion of headings and a table of contents shall be for convenience of reference only and shall not affect the construction or interpretation of this Agreement; (vi) the words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation” and shall not be construed as creating an exhaustive list of possibilities; (vii) the expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby” and similar expressions refer to this Agreement as a whole and not to any particular section or exhibit of this Agreement; (viii) the words “shall” and “will” are used interchangeably and both mean the specified action or forbearance is mandatory; (ix) unless otherwise indicated, a reference to a “Section” or “Exhibit” is a reference to the specified section or exhibit of this Agreement; and (x) unless otherwise modified, the words “day,” “month,” and “year” mean and refer, respectively, to a calendar day, month and year.
(l) Notice. Notices shall be provided in writing by email to the Company to firstname.lastname@example.org and to the Customer to the email address provided in the Governing Agreement. Each Party may modify their email address by providing notice of such modification to the other Party.
(m) WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, STATEMENTS OF WORK OR THE TRANSACTIONS CONTEMPLATED THEREIN.