Back

Terms and Conditions

BACKGROUND

Company has developed a proprietary platform that provides a team of AI go-to-market agents that significantly improves your GTM process such as creating outbound campaigns, provides in-depth research, personalizes outreach messages to improve both pipeline and customer conversion (the "Company Platform"). The Company Platform includes any updates that are made generally available by the Company to customers at no additional charge during the Term (as defined below), but expressly excludes any upgrades or additional services, features or analytics that are made available by the Company for an additional charge. Company and Customer have entered into the Service Order attached hereto (the "Order") and, from time to time hereafter, Customer and Company may enter into additional Service Orders that expressly reference, and are governed by, these Platform Terms and Conditions ("Future Orders") pursuant to which Customer will purchase rights to access and use certain features of the Company Platform, as detailed in the applicable Order. These Terms and Conditions are incorporated by reference into the Order to create this Agreement and will be incorporated by reference into each Future Order to create separate future agreements for the rights and services described in the applicable Future Order, in each case to the exclusion of any other terms or conditions that either party seeks to impose or incorporate or that are implied by course of dealing.

  1. ACCESS TO PLATFORM

    1. Company Platform. Company will make the Company Platform available to Customer via the Internet pursuant to this Agreement during the Term. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, nonexclusive, nontransferable (except as set forth in Section 9), non-sublicensable right to access and use the Company Platform during the Term solely for Customer's internal business purposes.

    2. Limitations. The following limitations and restrictions will apply to the Company Platform:

      1. Customer will not provide access to the Company Platform to any person who is not an employees of Customer, unless otherwise agreed to in writing by Company ("Authorized Users").

      2. Except as expressly permitted hereunder, Customer will not and will not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Company Platform; (ii) modify, translate or create derivative works based on the Company Platform; (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Company Platform; (iv) use the Company Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Company Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (vi) remove or obscure any proprietary notices or labels of Company or its suppliers on the Company Platform.

  2. OWNERSHIP; RESERVATION OF RIGHTS

    1. Customer Data. Customer or its licensors own the data input or uploaded by Customer into the Company Platform, including, without limitation, any such information regarding Customer's fans ("Customer Data"). Customer hereby grants Company the nonexclusive, worldwide, royalty-free, fully paid up, sublicensable, nontransferable (except as set forth in Section 9) right and license to (a) copy, use, modify, distribute and display Customer Data solely to the extent necessary to perform its obligations under this Agreement, (b) copy, modify and use Customer Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions, archival purposes and improving Company's products and services, and (c) copy, use, modify, distribute and display Customer Data on an aggregate and/or anonymized basis, solely to the extent that the aggregate data does not include information that identifies or would reasonably be expected to identify Customer or any of Customer's fans. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses therein expressly granted to Company under this Agreement.

    2. Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the parties, Company retains all rights, title, and interest in and to the Company Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Platform.

    3. Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback ("Feedback") to Company with respect to the Company Platform. Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Company a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.

    4. Customer Responsibilities. Only Customer's authorized employees who have been assigned a unique login to the Company Platform will be entitled to access and use the Company Platform under this Agreement. Customer will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Company Platform and notify Company promptly of any such unauthorized access or use, and (b) use the Company Platform only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer's login credentials.

    5. Privacy; Data Security. Company will implement and maintain reasonable administrative, physical and technical safeguards which attempt to prevent any collection, use or disclosure of, or access to Customer Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Customer Data. Such information security program would include: (i) physical security of all premises in which Customer Data will be processed and/or stored; and (ii) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by Company to perform any part of the services hereunder.

  3. PROFESSIONAL SERVICES

    1. Statements of Work. From time to time, Company and Customer may enter into statements of work, each of which will be executed by an authorized representative of each party and will reference and be governed by this Agreement (each, an "SOW"). Each SOW will set forth the professional services to be performed by Company, including, without limitation, professional services related to the integration, implementation and use of the Company Platform (the "Professional Services"), and the fees payable by Customer to Company in connection therewith. Each SOW will also include the period of time that such SOW will remain in effect (subject to earlier termination as set forth therein), and any applicable (a) payment terms and (b) acceptance criteria and process with respect to any Professional Services. Customer will pay to Company the fees set forth in each SOW in accordance with the terms set forth therein. In addition, Customer will reimburse Company for its travel and accommodation expenses incurred in connection with the performance of the Professional Services, unless otherwise set forth in the applicable SOW.

    2. Professional Services. Customer understands that Company's performance of the Professional Services is dependent in part on Customer's actions. Accordingly, Customer will provide Company with the necessary items and assistance specified in the applicable SOW in a timely manner. Any dates or time periods relevant to performance by Company hereunder shall be appropriately and equitably extended to account for any delays or change in assumptions due to Customer. If a Customer delay or change would materially change the economics of Company's performance or materially extends the time for performance, Company may terminate the applicable SOW upon thirty (30) days' written notice, unless within the notice period the parties agree on mutually acceptable changes to this Agreement or the applicable SOW.

    3. Change Orders. Upon the receipt of a proposal from Customer to change the terms of an SOW (a "Change Proposal"), Company will promptly provide (a) an impact analysis of such Change Proposal and (b) its financial impact (if any) and, upon mutual agreement, it shall be signed by the parties in the form of a mutually agreed written amendment to an SOW. The parties agree that material changes to an SOW shall require a new SOW.

  4. FEES; PAYMENT TERMS

    1. Fees; Payment Terms. Customer will pay to Company the fees set forth in the Order in accordance with the payment terms set forth in the Order. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (0.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Company within ten (10) days from the time such payment is due, Company may suspend Customer's access to the Company Platform until such payment is made.

    2. Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, sales, use, valueadded and property taxes (collectively "Taxes"). Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.

  5. TERM, TERMINATION

    1. Term. The initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order, unless earlier terminated as set forth herein (the "Initial Term"). Thereafter, this Agreement will automatically renew for additional periods of the same duration (each, a "Renewal Term", and together with the Initial Term, the "Term"), unless either party provides the other party with written notice of non-renewal at least sixty (60) days' prior to the end of the then-current term.

    2. Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement if the other party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) of receiving notice thereof. Upon any termination or expiration of this Agreement for any reason, Customer may request an export of the Customer Data in a mutually agreed upon format within thirty (30) days of the effective date of such termination or expiration. Thereafter, Company may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data stored or otherwise archived on the Company Platform or on Company's network. Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Company to provide the Company Platform will immediately terminate and (a) Customer will cease use of the Company Platform; and (b) each party will return or destroy all copies or other embodiments of the other party's Confidential Information (subject to Company's rights under Section 2.1(b) and (c)).

    3. Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2.1(b), 2.1(c), 2.2, 2.3, 4, 5.2, 5.3, 6, 7.4, 8, 9 and 10 will survive.

  6. CONFIDENTIALITY

    1. As used herein, "Confidential Information" means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the "Disclosing Party") that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the "Receiving Party"); provided, however, that a Disclosing Party's business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Company's Confidential Information includes, without limitation, the Company Platform and the terms of this Agreement. Information will not be deemed "Confidential Information" if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it will use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party's Confidential Information directly or indirectly, to any third party without the other party's prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party's Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party's Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

  7. REPRESENTATIONS, WARRANTIES AND DISCLAIMER

    1. Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.

    2. Customer Representations and Warranties. Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data to Company hereunder, and Customer's provision of the Customer Data to Company hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.

    3. Uptime. Company will use reasonable efforts consistent with prevailing industry standards to provide the Company Platform in a manner that minimizes errors and interruptions in accessing the Company Platform. The Company Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company's reasonable control, but Company will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Company's control. Company will provide telephone and e-mail support Monday through Friday, 8 a.m. through 6 p.m. Eastern Time.

    4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY PLATFORM IS PROVIDED ON AN "AS-IS" BASIS AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES. COMPANY DOES NOT WARRANT THAT THE COMPANY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE COMPANY PLATFORM WILL BE UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT THE RESULTS GENERATED BY THE COMPANY PLATFORM ARE ACCURATE OR WILL LEAD TO ANY PARTICULAR OUTCOME, AND COMPANY EXPRESSLY DISCLAIMS ALL LIABILITY WITH RESPECT TO SUCH RESULTS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.

  8. LIMITATIONS OF LIABILITY

    1. Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER'S BREACH OF SECTION 1, (B) EITHER PARTY'S BREACH OF SECTION 5 , AND (C) LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.

    2. General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) CUSTOMER'S BREACH OF SECTIONS 1, (B) EITHER PARTY'S BREACH OF SECTION 5, AND (C) LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 AND 8.2 BELOW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY'S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.

    3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

  9. INDEMNIFICATION

    1. Indemnification by Company. Company will defend Customer and the officers, directors, agents, and employees of Customer ("Customer Indemnified Parties") against any third party claim, allegation or legal action (a "Claim") arising from an allegation that Customer's authorized use of the Company Platform infringes any intellectual property right of a third party. Further, Company will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys' fees. Notwithstanding the foregoing, Company's indemnification obligation will not apply to claims to the extent arising from (a) modification of the Company Platform by any party other than Company without Company's express consent; (b) the combination, operation, or use of the Company Platform with other product(s), data or services where the Company Platform would not by itself be infringing; or (c) unauthorized or improper use of the Company Platform. If the use of the Company Platform by Customer has become, or in Company's opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (i) procure for Customer the right to continue using the Company Platform as set forth hereunder, (ii) replace or modify the Company Platform to make it non-infringing so long as the Company Platform has at least equivalent functionality, (iii) substitute an equivalent for the Company Platform or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Company's entire obligation and Customer's sole remedies in connection with any claim regarding the intellectual property rights of any third party.

    2. Indemnification by Customer. Customer will defend Company and the officers, directors, agents, and employees of Company ("Company Indemnified Parties") against any Claims arising from (a) any use or disclosure by Customer of the Company Platform in violation of this Agreement or (b) the Customer Data. Further, Customer will indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys' fees.

    3. Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an "Indemnified Party") becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an "Action"), the Indemnified Party will give the other party (the "Indemnifying Party") prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

  10. GENERAL

    1. Customer agrees that Company may (a) list and/or identify Customer's name (including by displaying any Customer trademark) to identify the business relationship between the parties on Company's website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer's use of the Company Platform. Customer may not remove or export from the United States or allow the export or re-export of the Company Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party's prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the Order and these Platform Terms and Conditions, the terms and conditions set forth in these Platform Terms and Conditions will govern unless expressly stated otherwise in the Order. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. All notices under this Agreement will be in writing and sent to the addresses set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a "Force Majeure Event"). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Company Platform may cause irreparable harm and injury to Company for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Company may be entitled to injunctive relief in the event Customer uses the Company in any way not expressly permitted by this Agreement.