The following terms and conditions, as well as any future modifications thereto (the “Terms and Conditions”) are a contract between you or the employer or other entity on whose behalf you are entering into this agreement (“you” or "Client") and Botsociety Inc., a Delaware corporation (the "Company") governing your use, and the Company’s provision, of the Subscription Services (as defined below).  These Terms and Conditions together with any applicable Purchase Order (as defined below) will be referred to as the “Agreement.”  By registering to create a Client account, Client acknowledges that it has read, understood, accepted, and agreed to be bound by the Agreement, including the most recent version of these Terms and Conditions.

1.  DEFINITIONS

1.1 “Authorized User” means an employee of Client, which shall not include affiliates of Client, that has (i) been authorized by Client to access the Subscription Services on behalf of Client in accordance with a “Small Business User License, (ii) been assigned a unique username-password combination to access and use the Subscription Services, and (iii) registered online to access and use the Subscription Services.

1.2 “Client Content” means (i) information, graphics, images, text, video, animated gifs, and any other content owned by Client and used in the Subscription Services and (ii) any content or designs created by Client using the Subscription Services.

1.3 “Fees” means the fees as described in Section 5.1 and detailed in the Purchase Order.

1.4 “Individual User License” means a single seat license authorizing one natural person and no Authorized Users to use the Subscription Services. Unless you upgrade to a "Small Business" license, no other persons (including employees, co-workers or independent contractors) may access your account or use the Subscription Services through your account.

1.5 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.6 “Purchase Order” means the procurement of Services through a digital checkout process that (a) is completed by Client or an Authorized User, (b) references these Terms and Conditions, (c) describes in reasonable detail the Subscription Services to be provided and seats authorized by the User License purchased, (d) specifies the fees to be paid, and (e) includes any attachments thereto that are incorporated by specific reference.  A Purchase Order may be amended only by written agreement of the parties.

1.7 “Services Platform” means a proprietary suite of conversational design tools provided and hosted by the Company for Client to use through the Subscription Services.

1.8 “Small Business User License” means a license authorizing a number of Authorized Users (as permitted by the applicable Purchase Order) the right to use the Subscription Services.

1.9 “Subscription Services” means the Services Platform and related services provided by Company that enable Client to use and create Client Content.  The Subscription Services features and capabilities available to Client shall be limited to those available for free upon registering to create a Client account as well as those detailed in any applicable Purchase Order.  Access shall be restricted to Client and Authorized Users.

1.10 “Term” means the term of this Agreement, including the applicable Purchase Order, as set forth in the Purchase Order.

1.11 “Usage Data” means data the Company has collected regarding Client’s use of the Subscription Services including, but not limited to, the Services Platform features and capabilities used and reviewed by Client and the frequency of Client’s access.

1.10 “User License” means either an Individual User License or a Small Business User License.

2.  REGISTRATION

2.1 Accounts.  The Client shall register to use the Subscription Services by providing certain profile and contact information to the Company, which will be used to create a Client account. Client accounts will be accessible to Authorized Users through individual access credentials. Each Authorized User shall have independent access credentials unless otherwise specified in the applicable Purchase Order.  Client and Authorized Users are responsible for maintaining the accuracy of registration information and the confidentiality of their usernames and passwords and shall not share usernames or passwords with anyone, including other employees of Client that are not Authorized Users. The Subscription Services provided by Company are not intended for and should not be used by anyone under the age of 18. By registering for an account, Client and its Authorized Users represent that they are over the age of 18.

3.  SUBSCRIPTION SERVICES

3.1 Subscription Services.  Client’s access and use of the Subscription Services is expressly limited to the features and the number of Authorized Users for which Client has paid fees in accordance with the applicable Purchase Order.

3.2 Restrictions.  Client shall not attempt to interfere with or disrupt the Subscription Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Subscription Services).  Client shall not allow access to or use of the Subscription Services by anyone other than Authorized Users and shall not share any other information based on the Subscription Services with anyone other than employees of Client. Client shall not: (a) copy, modify or distribute any portion of the Subscription Services; (b) disclose, rent, lease, loan or otherwise transfer or provide access to the Subscription Services to any third parties; or (c) transfer any of its rights hereunder (except as specified inSection 13.8).  Upon notification by the Company, Client shall also abide by any requirements of applicable third party providers.

3.3 Acceptable Use Policies.  Client acknowledges and agrees that Company does not monitor or police communications or data transmitted through the Subscription Services and that Company shall not be responsible for the content of any such communications or transmissions.  Client shall use the Subscription Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Client shall not use the Subscription Services to transmit any bulk unsolicited commercial communications. Client shall keep confidential and not disclose to any third parties, and shall ensure that Authorized Users keep confidential and do not disclose to any third parties, any user identifications, account numbers and account profiles.

4.  CLIENT OBLIGATIONS

4.1 Cooperation and Assistance.  As a condition to Company’s obligations hereunder, Client shall at all times: (a) provide Company with good faith cooperation and access to such information as may be reasonably required by Company in order to provide the Subscription Services, including, but not limited to, providing registration information and security access; and (b) carry out in a timely manner all other Client responsibilities set forth in this Agreement.  In the event of any delay in Client’s performance of any of the obligations set forth in (a) or (b), or any other delays caused by Client, Company may suspend Client’s access to the Subscription Services as reasonably necessary to account for such delays.

4.2 Publicity and Use Restrictions.Client shall not sell access to the Subscription Services.  Client shall not publish, reproduce, modify, or copy Subscription Services.

4.3 Enforcement.  Client shall ensure that all Authorized Users comply with the terms and conditions of this Agreement, including, without limitation, with Client’s obligations set forth inSections 3.2 and 3.3.  Client shall promptly notify Company of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Company with respect to: (a) investigation by Company of any suspected or alleged violation of this Agreement and (b) any action by Company to enforce the terms and conditions of this Agreement.  Company may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Client in the event that Company reasonably determines that such Authorized User has violated the terms and conditions of this Agreement.  Client shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User.

4.4 Telecommunications and Internet Services.  Client acknowledges and agrees that Client’s and its Authorized Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services.  Client shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.  Company shall not be responsible for any loss or corruption of Client Content, the Services Platform, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

 

5.  FEES AND TAXES

5.1 Fees.  In consideration for Company providing the Subscription Services, Client shall pay to Company the Fees in accordance with the applicable Purchase Order.  Fees are paid in advance on a monthly, quarterly, or yearly basis as indicated on the applicable Purchase Order.  Fees shall be nonrefundable.

5.2 Taxes.  All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”).  Client shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Company’s net income.

6.  INTELLECTUAL PROPERTY. 

6.1 Company Ownership.  As between Company and Client, the Usage Data, Subscription Services (including all copies of the Services Platform available therein), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Company or its licensors. Company grants to Client and its Authorized Users, a non-sublicensable, non-transferable, non-exclusive, limited license to use the Subscription Services in accordance with and for the duration of this Agreement.

6.2 Client Ownership.  As between Company and Client, Client Content and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Client. Client grants Company a worldwide, non-exclusive, license to access, use, process, copy, distribute, export, and display Client Content and any other products of intellectual property created by or for Client through the Subscription Services, only as reasonably necessary (i) to provide, maintain, and improve the Subscription Services; (ii) to prevent or address service, security, support, or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by Client. Client represents and warrants that it has secured all rights in and to Client Content from its Authorized Users and any other applicable party as may be necessary to grant this license.

7.  CONFIDENTIALITY

7.1 Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information.  “Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials, whether labeled as proprietary, confidential, or with words of similar meaning or not, and all information that is orally or visually disclosed, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Company Confidential Information includes, without limitation, the Usage Data, the Services Platform, including the Services Platform and any software whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the Subscription Services.  The terms and conditions of this Agreement shall be deemed the Confidential Information of both parties and neither party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.

7.2 Exclusions.  Confidential Information shall not include information that:  (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

7.3 Use and Nondisclosure.  During the Term and for a period of five (5) years after expiration or termination of this Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement.  Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance.  Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.  Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

8.  WARRANTY

8.1 Warranty for Subscription Services.  The Subscription Services, including without limitation the Services Platform, are provided “AS IS”, without warranty of any kind. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES.  WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  COMPANY FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

8.2 Disclaimer.  Client assumes sole responsibility and liability for results and Client Content obtained or created from the use of the Subscription Services.  Company shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Company by Client in connection with the Subscription Services or any actions taken by Company at Client’s direction. Company shall have no liability for any claims, losses or damages arising out of or in connection with Client’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the Subscription Services.

9.  TERM AND TERMINATION

9.1 Termination for Cause.  Either party may terminate this Agreement, including the applicable Purchase Order, upon written notice if the other party materially breaches this Agreement and fails to correct the breach within fifteen (15) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.  If Company terminates this Agreement based on Client’s failure to pay Fees required underSection 5.1, then Client shall owe Company all of the fees due for the full Term.

9.2 Termination for Convenience. Either party may terminate this Agreement, including the applicable Purchase Order, upon thirty (30) days written notice.

9.3 Termination for Insolvency.  Subject to Title 11 of the United States Code, if either party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement, including the applicable Purchase Order, upon thirty (30) days’ written notice.

9.4 Rights and Obligations Upon Expiration or Termination.  Upon expiration or termination of this Agreement, Client’s and the Authorized Users’ right to access and use the Subscription Services shall immediately terminate. Client and its Authorized Users shall immediately cease all use of the Subscription Services, and each party shall return and make no further use of the Subscription Services, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party.

 

9.5 Survival.  The rights and obligations of Company and Client contained in Sections 4.2 (Publicity and Use Restrictions), 5 (Fees and Taxes), 6 (Intellectual Property), (Confidentiality), 9.3 (Rights and Obligations Upon Expiration or Termination), 9.4 (Survival), 10 (Indemnification), 11 (Limitation of Liability), 12 (Acknowledgement), and 13 (General) shall survive any expiration or termination of this Agreement.

10.  INDEMNIFICATION

10.1 Indemnification by Client. Client shall defend (or settle), indemnify and hold harmless Company, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Client’s or an Authorized User’s use of the Subscription Services (other than any claim for which Company is responsible underSection 10.2); or (ii) Client or any Authorized User has breached any term or condition of this Agreement.  Client’s obligations under thisSection 10.1are contingent upon: (a) Company providing Client with prompt written notice of such claim; (b) Company providing reasonable cooperation to Client, at Client’s expense, in the defense and settlement of such claim; and (c) Client having sole authority to defend or settle such claim.

10.2 Indemnification by Company.  Company shall defend (or settle) any suit or action brought against Client to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Client.  Company’s obligations under thisSection 10.2are contingent upon: (a) Client providing Company with prompt written notice of such claim; (b) Client providing reasonable cooperation to Company, at Company’s expense, in the defense and settlement of such claim; and (c) Company having sole authority to defend or settle such claim.  In the event that Company’s right to provide the Subscription Services is enjoined or in Company’s reasonable opinion is likely to be enjoined, Company may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Client.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF COMPANY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES.  Company shall have no liability under thisSection 10.2to the extent that any third-party claims described herein are based on use of the Subscription Services in a manner that violates this Agreement or the instructions given to Client by Company.

11.  LIMITATION OF LIABILITY.  EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 3.2, 3.3, 6, 7 OR 10, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.

EXCEPT FOR WITH RESPECT TO LIABILITY ARISING FROM A BREACH OF SECTIONS 3.2, 3.3, 6 OR 7 OR FROM SECTION 10, NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CLIENT’S ACCESS TO AND USE OF THE SUBSCRIPTION SERVICES EXCEED THE AGGREGATE SUBSCRIPTION FEES PAID BY CLIENT IN THE TWELVE MONTH PERIOD PRECEEDING THE CLAIM OR ACTION, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION.

12.  ACKNOWLEDGEMENT.  The parties acknowledge that the limitations and exclusions contained in Section 11and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.

13.  GENERAL

 

13.1 Governing Law.  This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions.  Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the Northern District of California.  Company and Client hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.

13.2 Modification and Waiver.  No alteration, amendment, waiver, cancellation or any other change in any term or condition of the applicable Purchase Order, shall be valid or binding on either party unless the same shall have been mutually assented to in writing by both parties.  The Company reserves the right to modify these Terms and Conditions from time to time.  If the Company modifies these Terms and Conditions, it will post the modification on the Services Platform or otherwise provide the Client with notice of the modification.  The Company will also update the “Last Updated Date” at the top of these Terms and Conditions.  By renewing its subscription and/or continuing to access or use the Subscription Services after the Company has made a posting about such modification or has provided Client with notice of such modification, Client agrees to be bound by the modified Terms and Conditions.  If the modified Terms and Conditions are not acceptable to Client, Client’s only recourse is to cease using all the Subscription Services.  The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

13.3 Notices.  All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses provided in Client’s registered account and to the Company’s address available at the provided URL.  The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email or fax.

13.4 Severability.  In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

13.5 Force Majeure.  Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

13.6 Compliance with Laws.  Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

13.7 Relationship Between the Parties.  Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

13.8 Assignment/Successors.  Neither party may assign this Agreement (by operation of law or otherwise) hereunder without the prior written consent of the other party; provided, however, that Company may assign this Agreement to a successor to all or substantially all of its business or assets, whether by sale, merger, or otherwise. Any attempted assignment in violation of this section shall be void.  Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

13.9 Entire Agreement.  These Terms and Conditions together with the applicable Purchase Order constitute the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.  In the event of a conflict between the terms in these Terms and Conditions and the terms of an applicable Purchase Order, the terms of the Purchase Order shall control to the extent of such conflict.

13.10 Non-Exclusive Remedies.  Except as set forth in Section 10.2, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

13.11 Equitable Relief.  Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation.  Consequently, the non-breaching party may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

13.12 No Third-Party Beneficiaries.  This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

13.13 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.