Terms and Conditions
1.1. “Agent(s)” means Customer’s employees or consultants who have been authorized by Customer and whose duties to Customer require access and use of the Software as part of the grant of License by Interai under this Agreement.
1.2. “Customer” means the entity entering this Agreement as specified under the Order Form.
1.3. “Documentation” means all of the manuals, specifications, and similar documentation accompanying the Software or otherwise made available by Interai.
1.4. “Environment” means the Customer’s on-premises, private cloud, or other installation environment.
1.5. “Intellectual Property Rights” means all worldwide, whether registered or not (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyright applications, copyright restrictions, mask work rights, mask work applications and mask work registrations; (c) trademarks, trade names, service marks, logos, domain names, goodwill and trade dress; (d) rights relating to the protection of trade secrets and confidential information; (e) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (f) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired.
1.6. “Software” means Interai’s proprietary application which provides customer relations intelligence and analysis. All references to the Software shall include the Documentation, as may be applicable.
2. RIGHT AND LICENSE.
3. LIMITATIONS ON USE
4.1. License Fees.In consideration for the License and/or rights granted hereunder Customer will pay the Software license fees or Services Fee stated in the applicable Order Form (“License Fees”), and in accordance with its payment terms.
4.2. Unless otherwise specified in the Order Form, all payments are due immediately upon receipt of each invoice issued on a monthly basis and are non-refundable and non-refundable (NC/NR). Any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (a) the rate of one and a half percent (1.5%) per month; and (b) the highest amount permitted by applicable law.
Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, and other taxes, duties or governmental charges, except for taxes based upon Interai’s net income. In the event that Customer is required by applicable law to withhold or deduct taxes imposed upon Customer for any payment under this Agreement, then the amounts due to Interai will be increased by the amount necessary so that Interai receives and retains, free from liability for any deduction or withholding, an amount equal to the sum it would have received had Customer not made any such withholding or deduction.
5. REPRESENTATIONS AND WARRANTIES
5.1. Mutual Representations and Warranties.Each party represents and warrants that: (i) it is a validly organized entity under the laws of the jurisdiction of its incorporation and has the authority to enter into this Agreement; (ii) it has all right, power, and authority necessary to enter into this Agreement and perform its obligations hereunder; (iii) its performance of this Agreement, and the other party’s exercise of its rights under this Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions or constitute a default under any agreement by which it is bound or any applicable law, rule or regulation; and (iv) it will comply with all applicable laws in performing its obligations under this Agreement.
5.2. Interai Representations and Warranties.Interai represents, warrants and covenants as follows: (i) it has all rights necessary to grant, or will obtain all rights necessary to grant, all the rights and licenses that it purports to grant and perform all of its obligations under this Agreement, without the further consent of any third party; (ii) to Interai’s knowledge the Software and any of the services provided under this Agreement, do not infringe upon or otherwise violate any intellectual property rights or any other third-party right; and, to Interai’s knowledge, no third party has asserted, is asserting, has threatened, or has any reasonable basis to assert a claim of any of the foregoing; and (iii) that it has not included, and will not at any time include, any malicious code in the Software, services or any other element of the services.
5.3. OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS INTERAI MAKE NO ADDITIONAL REPRESENTATION OR PROVIDES OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE AND RELATED SERVICES. IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY LAW, INTERAI DISCLAIMS ANY WARRANTIES NOT MADE UNDER THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE. INTERAI DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT ANY ERRORS ARE REPRODUCIBLE OR THAT ERRORS ARE REPAIRABLE; THE SOFTWARE WILL BE FULLY INTEROPERABLE WITH ALL SYSTEMS OR THAT THEIR OPERATION OR USE WILL NOT CAUSE ANY DATA LOSS OR CORRUPTION.
6. THIRD PARTY SOFTWARE
6.1. The Software may include third party software components that are subject to open source and/or pass-through commercial licenses and/or notices (such third party programs, “Third Party Software” and “Third Party Software Terms and Notices”, respectively).
6.2. Some of the Third Party Software Terms and Notices may be made available to Customer in the Software, its Documentation or via a supplementary list provided by Interai. Any covenants, representations, warranties, indemnities and other commitments with respect to the Software in this Agreement are made by Interai and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software.
6.3. Any use of Third Party Software is subject solely to the rights and obligations under the applicable Third Party Software Terms and Notices. Notwithstanding anything in this Agreement to the contrary, Interai does not make any representation, warranty, guarantee, or condition, and does not undertake any liability or obligation, with respect to any Third Party Software.
7. TERM AND TERMINATION.
7.1 This Agreement shall be in effect for such period as the Parties have an outstanding Order Form and if none such term is specified the initial term shall be 12 months from the date of last signature on the Order Form (the “Initial Term”). Unless otherwise specified in the Order Form, thereafter the Agreement shall automatically renew for the equivalent periods of the Initial Term and in any event no less than an additional 12 months period (each a “Renewal Term” and collectively the “Term”).
Customer may terminate this Agreement at any time for any reason by providing Interai at least 30 days prior written notice, Interai may terminate this Agreement for any reason by providing Customer at least 90 days written notice prior to the end of the then applicable Term.
7.2 Upon expiration or termination of this Agreement: (a) the License will automatically terminate and Customer shall cease using or otherwise accessing the Software and uninstall and permanently erase (or, if requested by Interai, permit Interai to uninstall and permanently erase) all copies of the Software from the Customer’s systems; (b) Customer will pay all outstanding fess, including any License Fees; and (c) Customer shall, at Interai’s election, erase or return to Interai all Interai Confidential Information in its possession or under its control. Notwithstanding the termination or expiration of this Agreement, Sections 3, 4.2, 4.3, 5.3, 6, 7-12 and 14 herein shall survive and remain in effect in perpetuity.
8.1. Indemnification by Interai.To the maximum extent allowed by applicable laws, Interai will defend, indemnify, and hold harmless Customer and its affiliates, parents, directors, officers, employees, and agents (collectively, the “Indemnitees”), from and against any and all loss, damage, fines or costs (including reasonable attorneys’ fees and court costs) in connection with claims, demands, suits, or proceedings made or brought against Customer or any Indemnitee by a third party arising out of or in connection with any allegation that the Software or any of the services provided under this Agreement is infringing on the Intellectual Property Rights of such party (an “IP Claim”). Interai will have no obligation or liability under this Section 7.1 to the extent that the IP Claim is based upon or results from: (a) the combination or use of the Software with any third party products or services if the claim would not have occurred if not for such combination or use; (b) any modification to the Software not made by Interai; (c) Customer’s failure to comply with the written instructions of Interai and/or with the terms of this Agreement or the Documentation; (d) where Customer continues the alleged infringing activity after being notified thereof; (e) use or retention of a copy of the Software not in its most current version provided by Interai; and/or (f) Interai’s compliance with any Customer instructions or requirements.
8.2. Remediation.If an IP Claim is brought or threatened against the Software or services provided under this Agreement, or any portion thereof, or Interai believes that such an allegation may be brought, Interai may at its own cost: (i) obtain a license for the affected Software and/or services; (ii) modify the affected Software and/or services (provided that the modified item is at least equivalent to the performance and functionality of the original item); or (iii) replace the affected Software and/or services with a service or product having the same functionality. If none of the foregoing is available on a reasonable basis, then on Interai’s written notice to Customer and without prejudice to Customer’s other rights under this Agreement, Customer will stop using the Software and/or affected services, and Interai will refund to Customer a pro-rata portion of any pre-paid License Fees for the Software and/or affected services and any other services that cannot be used to a reasonably acceptable standard without the affected services.
8.3. Notice of Claim.Interai’s obligation and liability under this Section 7 shall be subject to the condition that: (i) Indemnitee will provide Interai with prompt notice of any IP Claim for which indemnification will be sought hereunder; and (ii) will cooperate in all reasonable respects with the Indemnifying Party in connection with any such Claim, at the Indemnifying Party’s expense; and (iii) Interai shall assume sole control of the defense of the IP Claim and all negotiations for any settlement thereof. Interai may not settle any IP Claim under this Section without Customer’s consent, not to be unreasonably delayed or withheld, if such settlement does not relieve Customer of any and all liability and obligation other than monetary liability indemnified pursuant to this Section. Customer shall refrain from admitting any liability or otherwise compromising the defense of the IP Claim (in whole or in part), without the prior express written consent of Interai.
8.4. Entire Liability.This Section states Interai’s sole and exclusive obligation and liability, and Customer’s sole remedy, with respect to any IP Claim.
9. LIMITATION OF LIABILITY.
10. INTELLECTUAL PROPERTY RIGHTS.
10.1. Notwithstanding any other provision to the contrary, the Software, any customizations or deliverables pursuant to the Services, Interai Confidential Information and all improvements, enhancements and derivatives of any of the foregoing and all Intellectual Property Rights thereto (“Interai IPR”) are exclusively owned by Interai and/or its licensors. All Feedback (as such terms is defined below), and suggestions provided to Interai regarding the Software or its operation shall be deemed as Interai IPR. This Agreement does not convey to Customer any right, title or interest in the Interai IPR, other than the revocable and limited right to use the Software as set forth above.
10.2. During the use of the Software, the Customer shall be encouraged to share and provide comments, suggestion and feedback (“Feedback”) to Interai regarding the use of the Software, possible improvements or enhancements. Interai shall not be obligated to use any of the Feedback, however all Feedback which pertains to the Software and workApps shall be considered Interai IPR
11.1. Use and Disclosure. The parties acknowledge that, in the course of performance of this Agreement, one party (“Disclosing Party”) may find it necessary to disclose or permit access to Confidential Information to the other party (“Receiving Party”) and its personnel. Disclosing Party’s disclosure of, or provision of access to, Confidential Information to Receiving Party’s personnel is solely for the purposes agreed under this Agreement.
11.2. Confidential Treatment. Confidential Information disclosed to a Receiving Party will be held in confidence by the Receiving Party and not disclosed to others or used except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party. Each party will use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own information of like nature, but in no circumstances less than reasonable care.
11.3. Allowances. Notwithstanding anything to the contrary in this Section 8, Confidential Information may be disclosed by a Receiving Party: (i) to those of its employees, agents, and consultants who have a need to know to perform their duties under this Agreement and who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party’s obligations under this Agreement; (ii) to the Receiving Party’s auditors, outside counsel, accountants and other similar business advisors, or in connection with an actual or prospective sale or transfer of assets; and (iii) to the extent required by law, pursuant to a duly authorized subpoena, court order or government authority, provided that: (a) the Receiving Party provides the Disclosing Party with sufficient advance notice of such disclosure requirement or obligation to permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (b) Receiving Party limits the release of the Confidential Information to the greatest extent possible under the circumstances.
11.4. Exceptions. Except with respect to Personal Data (as defined in theData Processing Agreement, which will in all circumstances remain Confidential Information, obligations under this Section 8 (Confidentiality) will not apply to information which: (i) was in the public domain or generally available to the public prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes part of the public domain or generally available to the public before any wrongful act of the Receiving Party or an employee or agent of the Receiving Party; (ii) was in the possession of the Receiving Party without breach of any obligation hereunder to the Disclosing Party prior to receipt from the Disclosing Party; (iii) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; (iv) is developed by the Receiving Party independent of such information received from the Disclosing Party; or (v) has previously been disclosed by the Disclosing Party to third parties without obligation of secrecy.
11.5. Remedies. If the Receiving Party or its personnel has disclosed, or is threatening to disclose, any Confidential Information in breach of this Agreement, the Disclosing Party will be entitled to seek an injunction to prevent the Receiving Party personnel from disclosing Confidential Information, or to prevent the Receiving Party personnel from providing any services to any third party to whom such Confidential Information has been or may be disclosed. The Disclosing Party will not be prohibited by this provision from pursuing other remedies, including a claim for losses or damages.
12. PERSONAL DATA
Parties agree that at all time Interai shall be considered a processor of any personal data obtained from Customer, and any such processing shall be conducted in accordance with the provisions of thedata processing agreement(the “DPA”). Customer shall, as and to the extent required by law, ensure that all data subjects’ consent to the provision to and processing by Interai of their data as set forth herein. CUSTOMER HEREBY ACKNOWLEDGES THAT INTERAI DOES NOT COLLECT ANY PERSONAL DATA OTHER THAN PERSONAL DATA RELATING TO CUSTOMER’S AGENTS. ALL OTHER PERSONAL DATA PROCESSED THROUGH THE SOFTWARE SHALL BE STRICTLY PROCESSED WITHIN CUSTOMER’S ENVIRONMENT WITHOUT ACCESS OR RETENTION BY INTERAI. Notwithstanding the foregoing, if Interai is exposed to Customer end-users’ personal data, such data will be treated as personal data and will be subject to the provisions of the DPA.
If so agreed by the parties in the Order Form, Interai shall provide the following support services subject to timely payment of applicable License Fees:
13.1. Email support with response time within twenty-four (24) hours Monday through Friday from 9 AM – 5 PM EST.
13.2. Notwithstanding the foregoing, Customer shall classify service failures encountered by Customer according to the following definitions, and Interai will address the problem in accordance with such classification according to the table below, assuming issue notification is given within the support window set forth in Section 7.1.
14. GENERAL PROVISIONS.
14.1. Governing Law and Venue. This Agreement and any claim, controversy or dispute arising under or relating to this Agreement, the relationship of the parties, or the interpretation and enforcement of the rights and duties of the parties, shall be governed by, construed, interpreted and enforced in accordance with, the substantive and procedural laws of the State of New York, without giving effect to any choice or conflicts of law principles, provisions or rules (whether of the State of New York or any other jurisdiction). Any other instruments executed pursuant to the terms of this Agreement will likewise be governed by, and construed and enforced in accordance with, the laws of the State of New York. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The federal and state courts in the State of New York shall have exclusive jurisdiction over any disputes arising out of the Agreement and both parties hereby irrevocably submit to the exclusive jurisdiction of those courts. This Section 13 hereby amends and supersedes Section 9 (ii) of the Online Terms it its entirety.
14.2. Assignment. Either Party may not assign, or otherwise transfer this Agreement (a “Transfer”) or any of its related rights or obligations under this Agreement without the other Party’s prior written consent. The foregoing shall not apply and approval shall not be required in the event such assignment is made to an affiliate or is as a result of, in connection with or related to operation of law, change of control, or merger or acquisition. Any attempted assignment, subcontracting or transfer of this this Agreement or any related rights or obligations under this Agreement without the prior written consent of the other Party will be null and void, and will be deemed a non-curable material default of this Agreement.
14.3. Aggregate Data. Notwithstanding anything to the contrary, Interai may use, retain, exploit and transfer to third parties aggregate, de-identifies and anonymized analytics and statistical data for any purpose and without any restrictions or payment obligations, provided that such information cannot be traced-back to Customer, its Agents or Customer’s end-users.
14.4. Modification. Any changes to these Terms, DPA or Order Form will only be binding on a party if approved in writing by an authorized representative of that party, and which specifically states that such writing constitutes an amendment to this Agreement.
14.5 Waiver. The failure of either party to enforce any provision of this Agreement will not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement. A waiver or consent given on one occasion is effective only in that instance and will not be construed as a bar to or waiver of any other right on any other occasion.
14.6 Force Majeure. Except for payment obligations, neither party will be liable for failure or delay in performance of any of its obligations under or in connection with this Agreement arising out of any event or circumstance beyond that party’s reasonable control, including without limitation an Act of God, fire, flood, lightning, war, revolution, act of terrorism, riot, civil commotion, adverse weather condition, adverse traffic condition, strike, lock-out, pandemic or other industrial action, and failure of supply of power, fuel, transport, equipment, raw materials, or other goods or services.
14.7 Entire Agreement. This Agreement, together with the Exhibits hereto, the DPA, the Order Form and any other documents attached to or incorporated into this Agreement by reference, constitutes the final, complete, and entire agreement between the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.