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Subscription Agreement

BY EXECUTING THIS SUBSCRIPTION AGREEMENT, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS OF THE ROBOSOURCE / PROCESSCOACH SUBSCRIPTION AGREEMENT AND ALL AGREEMENTS REFERRED TO THEREIN. THE INDIVIDUAL OR ENTITY ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER CONFIRMS THAT IT HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS THE AUTHORITY TO BIND CUSTOMER AND ITS RELATED PARTIES HERETO. CUSTOMER UNDERSTANDS THAT THE SERVICE IS PROVIDED TO YOU ON AN “AS-IS” BASIS.

jrbeutler, inc. (DBA “Robosource” and “ProcessCoach”) SUBSCRIPTION AGREEMENT

These TERMS AND CONDITIONS, effective as of the Effective Date (defined below), are by and between jrbeutler inc., an Indiana corporation doing business as “Robosource” and “ProcessCoach” (“Company”) and [CUSTOMER ENTITY NAME] (“Customer”, and together with Company, the “Parties”).

The Parties agree:

Article 1 — SERVICES

Section 1.1 Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, Company shall use commercially reasonable efforts to provide to Customer and its Authorized Users the Subscriptions described in the Initial Products & Services Agreement and this Agreement, including without limitation if selected by Customer, ProcessCoach.ai and other Company products and services that may utilize AI Technology (collectively, the “Subscriptions”) in accordance with these Terms and Conditions which may be updated from time to time (collectively the “Specifications”). Additional Subscriptions may be added by the execution by both Parties of a Change Order (each a “Change Order” and collectively the “Change Orders”).

Section 1.2 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the Parties:

  • Company has and will retain sole control over the operation, provision, maintenance, and management of the Subscriptions and Company Materials, including the: (i) Company Systems; (ii) selection, deployment, modification and replacement of the Service Software; (iii) ProcessCoach.ai and (iv) performance of support services and service maintenance, upgrades, corrections and repairs; and
  • Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Subscriptions and Company Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any information, instructions or materials provided by any of them to the Subscriptions and results obtained from any use of the Subscriptions or Company Materials.

Section 1.3 Changes. Company reserves the right, in its sole discretion, to make any changes to the Subscriptions and Company Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Company’s solutions to its customers, (ii) the competitive strength of, or market for, Company’s solutions or (iii) the Subscriptions’ cost efficiency or performance; or (b) to comply with applicable Law.

Section 1.4 Subcontractors. Company may from time to time in its sole discretion engage third parties to perform Subscriptions (each, a “Subcontractor”).

Section 1.5 Suspension or Termination of Services. Company may, directly or indirectly, and by any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Subscriptions or Company Materials, including, without limitation, ProcessCoach.ai, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with, any material term of this Agreement, or accessed or used the Subscriptions beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Subscriptions; or (iii) this Agreement expires or is terminated.

Except in cases involving fraud, illegal activity, or an imminent security threat to Company’s systems or other customers (in which Company may suspend access immediately), Company shall provide Customer with written notice of the basis for any intended suspension and a cure period of ten (10) business days from the date of such notice within which Customer may remedy the identified issue. If Customer fails to cure the identified issue within such ten (10) business day period, Company may proceed with suspension of access. Company shall provide written notice to Customer promptly upon effectuating any suspension.

This Section does not limit any of Company’s other rights or remedies, whether at law, in equity or under this Agreement. Upon any suspension or termination of services pursuant to the foregoing, Company may terminated this Agreement upon thirty (30) days’ written notice to Customer, and Customer may terminate this agreement with thirty (30) days written notice to Company.

Article 2 — AUTHORIZATION AND CUSTOMER RESTRICTIONS

Section 2.1 Authorization; License Grant. Subject to and conditioned on Customer’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Company hereby authorizes Customer to access and use, during the Term, the Subscriptions and such Company Materials as Company may supply or make available to Customer solely for the Permitted Use by and through Authorized Users in accordance with the Specifications, and the conditions and limitations set forth in this Agreement and Terms of Use. This authorization is non-exclusive, and other than as may be expressly set forth in Section 13.6, non-transferable. Company hereby grants to Customer, exercisable by and through its/their Authorized Users during the applicable Term, a non-exclusive and non-transferable right to access the Subscription Services, including in operation with other software, hardware, systems, networks, and services for Customer’s business purposes, including for submitting Customer AI Input to and receiving Customer AI Output from the AI Features and otherwise Processing Customer Data.

Section 2.2 Reservation of Rights. Except as specifically set forth herein, nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Subscriptions, Company Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise. All right, title, and interest in and to the Subscriptions, Company Materials and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.

Section 2.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Subscriptions or Company Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, neither Customer nor its agent(s) shall, except as this Agreement expressly permits:

  • copy, modify or create derivative works or improvements of the Subscriptions or Company Materials,
  • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Subscriptions or Company Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service,
  • reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Subscriptions or Company Materials, in whole or in part,
  • bypass or breach any security device or protection used by the Subscriptions or Company Materials or access or use the Subscriptions or Company Materials other than by an Authorized User through the use of his or her own then valid access credentials,
  • input, upload, transmit or otherwise provide to or through the Subscriptions of Company Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code,
  • damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Subscriptions, Company Systems or Company’s provision of Subscriptions to any third party, in whole or in part,
  • remove, delete, alter or obscure any trademarks, Specifications, Documentation, Terms of Use, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Subscriptions or Company Materials, including any copy thereof,
  • access or use the Subscriptions or Company Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Company customer), or that violates any applicable Law, and
  • access or use the Subscriptions or Company Materials for purposes of competitive analysis of the Subscriptions or Company Materials, the development, provision or use of a competing software service or product or any other purpose that is to Company’s detriment or commercial disadvantage.

Article 3 — ACCESS OR USE THE SUBSCRIPTIONS OR COMPANY MATERIALS

Beyond the scope of the Authorization granted under Section 2.1. Customer Obligations.

Section 3.1 Customer Systems and Cooperation. Customer shall at all times during the Term:

  • set up, maintain and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Subscriptions are accessed or used,
  • provide Company Personnel with such access to Customer’s premises and Customer Systems as is necessary for Company to manage the Subscriptions in accordance with the availability requirements and Specifications,
  • provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this Agreement, and
  • notify Company in advance of any changes to Customer Systems that may impact the performance of Company solutions so Company and Customer may collaboratively re-engineer the Company solutions to ensure that they will fully and accurately function following the implementation of changes to the Customer Systems (billed hourly to Customer).

Section 3.2 Effect of Customer Failure or Delay. Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

Section 3.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 2.3, Customer shall, and shall cause its Authorized Users to, immediately:

  • take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Subscriptions and Company Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access), and
  • notify Company of any such actual or threatened activity.

Article 4 — SECURITY

Section 4.1 Company Systems and Security Obligations. Company shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data.

Section 4.2 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Subscriptions, (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”), (d) the security and use of Customer’s and its Authorized Users’ Access Credentials, and (e) all access to and use of the Subscriptions and Company Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, that access or use.

Section 4.3 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of to the Company service; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by Company.

Article 5 — FEES | PAYMENT TERMS

Section 5.1 Fees. Customer shall pay Company the fees set forth in each Products & Services Agreement as modified by any Change Orders (collectively, “Fees”) in accordance with this Article. Customer may also incur charges from third-party service providers that are separate and apart from the amounts charged by Company. Customer agrees that all such charges are Customer’s sole responsibility.

Section 5.2 Service Order Renewal Terms. Your annual ProcessCoach subscription will automatically renew annually for additional term(s) of twelve (12 months) unless either Customer or Company provides the other Party with written notice of non-renewal at a minimum of thirty (30) days prior to the end of the then current Term by providing notice to info@robosource.us of their intent to not renew. At the end of the Term, Monthly Recurring Charges (“MRCs”) increases may be instituted at Company’s sole discretion. Such MRC increases shall be communicated to Customer at a minimum of thirty (30) days prior to the MRC increase effective date.

Section 5.3 Disconnect, Deactivate or Removal of any Service. If Customer wishes to disconnect, deactivate, and/or remove any Service(s) identified in the current agreement upon the expiration of the Service Term, Customer, or by one of its Authorized Users, shall provide written notice at a minimum of thirty (30) days, prior to the end of the then-current Term to info@robosource.us. If Customer fails to provide written notice as required in this Section, the then-current Service Term shall automatically renew for a duration of twelve (12) months for all the Services and/or Products.

Section 5.4 Fee Increases. Nothing in this Section shall limit or otherwise reduce Customer’s obligation to pay an Early Termination Fee, if applicable. Company may increase Fees for any contract year following the expiration of any initial or renewal Term by providing written notice to Customer at a minimum of ninety (90) days prior to the commencement of the then-current Term, and the agreement will be deemed amended accordingly.

Section 5.5 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, and/or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.

Section 5.6 Charges and Billings. Within fifteen (15) days of execution for any invoice, Customer shall remit payment to Company for all nonrecurring charges selected on the then-current agreement as the Implementation Fee (“Implementation Fee”). Customer further agrees to remit payment to Company for all charges associated with the Services and/or Products as selected, including, without limitation, the MRCs for each Service or Product. In the event that some, but not all, services associated with an agreement are installed or activated, Customer agrees to pay Company the MRCs and Additional Charges associated with those Services that are installed or activated even though the Effective Date for the entire agreement has not commenced.

Section 5.7 Payment. Upon commencement of the then-current agreement, Customer shall remit payment for all Fees within fifteen (15) days from the date the invoice is sent to the email address provided pursuant to Section 13.4. Payments shall be made to the address or account specified in the invoice, or to such other address or account as Company may designate in writing from time to time.

Section 5.8 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

  • Company may charge interest on the past due amount at the rate of one and one-half (1.5%) percent or twenty-five ($25.00) dollars, whichever is greater, per month, calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law,
  • Customer shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees, and
  • if such failure continues for thirty (30) days following written notice thereof, Company may suspend performance of the Subscriptions until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

Section 5.9 No Deductions or Setoffs. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than service credits issued by Company or any deduction or withholding of tax as may be required by applicable law).

Article 6 — INTELLECTUAL PROPERTY RIGHTS

Section 6.1 Services and Company Materials. All right, title, and interest in and to the Subscriptions and Company Materials, including all Intellectual Property Rights therein, are and will remain with Company and the respective rights holders in the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Subscriptions or Company Materials (including Third Party Materials) except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 2.3 and the other limitations contained herein. All other rights in and to the Subscriptions and Company Materials (including Third Party Materials) are expressly reserved by Company and the respective third-party licensors.

Section 6.2 Customer Data. As between Customer and Company, Customer is and shall remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 6.3.

Section 6.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data to: (a) Company, its Affiliates, Subcontractors, and Company Personnel as are necessary or useful to perform or improve the Subscriptions, (b) Company as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder, (c) Company and its Affiliates to analyze the use of the Subscriptions, to improve the Subscriptions, to develop enhancements to the Subscriptions that will facilitate communications for its current and future customers and to create anonymized and aggregated data that is used to analyze communications within and between organizations and individuals in order to create products and services to be offered by Company and its Affiliates, and (d) Company and its Affiliates to create anonymized and aggregated data that may be used for internal product development, improvement, and analytics purposes. By accessing, or using, any services related to this Subscription, you acknowledge that you have reviewed, and agree to, the Company Privacy Policy, including but not limited to the provisions related to Collection and Use of Information and Disclosure of Personal Information to Third Parties located here. If Customer does not accept the terms of the Privacy Policies, Customer must cease using Company Services immediately. Notwithstanding the foregoing, Customer agrees that Customer retains no interest in non-identifiable and/or anonymized aggregate data and usage statistics compiled by Company in connection with Customer’s use of the Subscription Services and/or any other related features or components provided by, or which data and statistics Company may use in its discretion. Notwithstanding anything to the contrary in this Section 6.3, any use of Customer Data for the purpose of training, retraining, tuning, validating, modifying, updating, or otherwise improving any AI Features or AI Technology is governed exclusively by Section 13.13 and not by this Section 6.3. Upon expiration or termination of this Agreement for any reason, Company’s rights under this Section 6.3 shall cease, except that Company may retain and use anonymized and aggregated data that was compiled prior to the effective date of such expiration or termination solely for the purposes set forth in subsection (d) above.

Section 6.4 Compliance with the Digital Millennium Copyright Act. Company abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, Company may remove or disable access to material residing on a site that is controlled or operated by Company, and is claimed to be infringing, in which case Company will make a good faith attempt to contact the individual or entity who submitted the affected material to complete a counter notification, if any, and in accordance with the DMCA. Company does not control content hosted on third party websites and cannot remove content from sites not owned or controlled. If Customer is the copyright owner of content hosted on a third-party site, and the use of the content is not authorized, please contact the administrator of that website directly to have the content removed. Before serving either a Notice of Infringing Material or a Counter-Notification, Company recommends Customer consult with legal counsel to further understand the rights and obligations under the DMCA, and other applicable laws. The following notice requirements are intended to comply with Company’s rights and obligations under the DMCA and, in particular, Section 512(c). THIS DOES NOT CONSTITUTE AS LEGAL ADVICE.

Section 6.5 Filing a Notice of Infringing Material Under the DMCA. To file a Notice of Infringing Material (“Notice”) on a site owned or controlled by Company, the notification shall contain the following details:

  1. Reasonably sufficient details to enable Company to identify the alleged work claimed to be infringed, or if multiple alleged works are claimed to be infringed, a representative list of such works (e.g., title, author, any registration or tracking number, and URL(s)),
  2. Reasonably sufficient detail to enable Company to identify and locate the alleged material that is claimed to be infringing (e.g., the link website containing the alleged material(s)),
  3. Contact information of the individual or entity submitting the Notice, including mailing address, telephone number, and/or email address,
  4. A statement that of a good faith belief that the use of the alleged material identified in subsection 2, above, is not authorized by the copyright owner, its agent, or law,
  5. A statement, under penalty of perjury, that the information in the Notice is accurate and the individual or entity is authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed, and
  6. A signature of the individual or entity submitting the Notice.

Article 7 — CONFIDENTIALITY

Section 7.1 Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” shall mean information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of, or relating to, the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, all Company Materials and this Agreement are the Confidential Information of Company.

Section 7.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement, (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement, (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality, or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

Section 7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

  • not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement,
  • except as may be permitted by and subject to its compliance with Section 7.3(e), below, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section, and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section
  • safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care, and
  • ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Article.
  • Compelled Disclosures. If the Receiving Party, or any of its Representatives, is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

Article 8 — TERM AND TERMINATION

Section 8.1 Term. The term of this Agreement commences as of the Effective Date and unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect and will auto-renew for the next year, once the term ends.

Section 8.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

  • Company may terminate this Agreement, effective upon written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and the failure continues more than thirty (30) days after Company’s delivery of written notice of failure to pay; or (ii) breaches any of its obligations under Section 2.3 or Article 7.
  • either Party may terminate this Agreement, effective upon prior written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure, or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach, and
  • either Party may terminate this Agreement, effective immediately upon prior written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) makes or seeks to make a general assignment for the benefit of its creditors, or (iii) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  • either Party may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the other Party. Such termination shall not relieve Customer of its obligation to pay all Fees accrued and due through the end of the thirty (30)-day notice period. For the avoidance of doubt, a termination for convenience under this Section 8.2(d) shall not trigger the Early Termination Fee set forth in Section 8.3, provided that the terminating Party has provided the full thirty (30) days’ written notice required herein.

Section 8.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

  • all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate,
  • Company shall immediately cease all use of any non-anonymized Customer Data or Customer’s Confidential Information and (i) at Customer’s written request, return to Customer or destroy, all documents and tangible materials containing, reflecting, incorporating, or based on non-anonymized Customer Data or Customer’s Confidential Information, and (ii) permanently erase all non-anonymized Customer Data and Customer’s Confidential Information from all systems Company directly or indirectly controls,
  • Customer shall immediately cease all use of any Subscriptions or Company Materials and (i) at Company’s written request return to Company or destroy all documents and tangible materials containing, reflecting, incorporating, or based on Company’s Confidential Information, and (ii) permanently erase Company’s Confidential Information from all systems Customer directly or indirectly controls,
  • if Customer terminates this Agreement pursuant to Section 8.2(b), Customer will be relieved of any obligation to pay any Fees (including Early Termination Fees) attributable to the period after the effective date of the termination and Company will refund to Customer Fees paid in advance for Subscriptions that Company has not performed as of the effective date of termination,
  • if Company terminates this Agreement pursuant to Section 8.2(a) or Section 8.2(b), or if the Customer Terminates this Agreement or any Service Order at any time prior to the expiration of any Service Term of any Service Order for convenience, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and any expenses that are reimbursable, on receipt of Company’s invoice. The Early Termination Fees are calculated pursuant to the definitions set forth herein. Customer agrees that the amount of the Early Termination Fee is a genuine estimate of Company’s actual damages resulting from an early termination of the Services, and therefore for the sake of efficiency, economy, and convenience, the Early Termination Fee set forth herein constitutes liquidated damages, is reasonable, and is not intended as a penalty or to be punitive in nature.

Section 8.4 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 2.3, Article 5, Article 7, Section 8.3, Section 8.4, Article 9, Article 10, Article 11, and Article 13.

Article 9 — REPRESENTATIONS AND WARRANTIES

Section 9.1 Mutual Representations and Warranties. The Parties each represent and warrant to the other that:

  • it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization,
  • it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants, or is required to grant under this Agreement,
  • the execution of this Agreement by its representative whose signature is set forth herein has been duly authorized by all necessary corporate or organizational action of the Party, and
  • when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of the Party, enforceable against the Party in accordance with its terms.

Section 9.2 Additional Company Representations, Warranties, and Covenants. Company represents, warrants, and covenants to Customer that Company will perform the Subscriptions using personnel of required skill, experience, and qualifications, and in a professional method and in accordance with industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

Section 9.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants, and covenants to Company that Customer owns, has licensed, and/or otherwise has obtained the rights to use the Customer Data and the necessary and appropriate consents in and relating to the Customer Data so that, as received by Company and processed in accordance with this Agreement and/or in any way contemplated or agreed upon pursuant to this Agreement, Customer does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.

Section 9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, SECTION 9.2, AND SECTION 9.3, ALL COMPANY SERVICES AND COMPANY MATERIALS ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY SERVICES OR COMPANY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER COMPANY SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

Article 10 — INDEMNIFICATION

Section 10.1 Company Indemnification. Company shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) by a third party (other than an Affiliate of Customer) to the extent that such Losses arise from any allegation in the Action that Customer’s use of the Subscriptions (excluding Customer Data and Third Party Materials) in compliance with this Agreement (including the Specifications) infringes an Intellectual Property Right. The foregoing obligation shall not apply to any Action or Losses arising out of or relating to any:

  • access to, or use of, the Subscriptions or Company Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in the Specifications or otherwise in writing by Company,
  • modification of the Subscriptions or Company Materials other than: (i) by or on behalf of Company, or (ii) with Company’s written approval in accordance with Company’s written specification,
  • failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Company, or
  • act, omission, or other matter described in Section 10.2(a), Section 10.2(b), Section 10.2(c), or Section 10.2(d), whether or not the same results in any Action against or Losses by any Company Indemnitee.

Section 10.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Company and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee in connection with any Action by a third party (other than an Affiliate of a Company Indemnitee) to the extent that such Losses arise out of or relate to any:

  • Customer Data, including any Processing of Customer Data by or on behalf of Company in accordance with this Agreement,
  • any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User including Company’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Company,
  • allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement, or
  • negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

Section 10.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which the Party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under Article 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

Section 10.4 Mitigation. If any of the Subscriptions or Company Materials are, or in Company’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Subscriptions or Company Materials is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense:

  • obtain the right for Customer to continue to use the Subscriptions and Company Materials materially as contemplated by this Agreement,
  • modify or replace the Subscriptions and Company Materials, in whole or in part, to seek to make the Subscriptions and Company Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Subscriptions and Company Materials, as applicable, under this Agreement, or
  • by written notice to Customer, terminate this Agreement with respect to all or part of the Subscriptions and Company Materials, and require Customer to immediately cease any use of the Subscriptions and Company Materials or any specified part or feature thereof.

ARTICLE 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THIS AGREEMENT, OR ANY SUBJECT MATTER HEREOF (INCLUDING THE COMPANY SERVICES AND COMPANY MATERIALS), INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

Article 11 — LIMITATIONS OF LIABILITY

Section 11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE COMPANY SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO THE SERVICE LEVEL AGREEMENT; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

Section 11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, SUBCONTRACORS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE SIX MONTHS IMMEDIATELY PRIOR TO THE DATE SUCH LIABILITY ARISES. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

Article 12 — FORCE MAJEURE

Section 12.1 No Breach or Default. In no event will Company be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control (a “Force Majeure Event”), including acts of God, epidemic, pandemic, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes, or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.

Section 12.2 Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Company shall give prompt written notice to Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

Article 13 — MISCELLANEOUS

Section 13.1 Further Assurances. Upon a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.

Section 13.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

Section 13.3 Public Announcements. Neither Party shall issue or release any announcement, statement, or press release relating to this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, provided, however, that Company may, without Customer’s consent, include Customer’s name in its lists of Company’s current or former customers of Company in promotional and marketing materials.

Section 13.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing to such address and representative the Party may designate from time to time, in accordance with this Section:

Jrbeutler, Inc. d/b/a Robosource or ProcessCoach

PO Box 753

Carmel, IN 46082

OR

info@robosource.us

Notices sent in accordance with this Section, will be deemed effectively provided that: (a) upon receipt, if delivered by hand, with signed confirmation thereof, (b) upon receipt, if sent by a nationally recognized overnight courier, signature required, (c) when submitted via e-mail, must accompany a confirmation of transmission, if submitted during the addressee’s normal business hours, and on the next business day, if submitted after the addressee’s normal business hours, and/or (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

Section 13.5 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

Section 13.6 Assignment. Customer agrees that the Company account is not transferable, and this Agreement may not be assigned by Customer without Company’s prior written consent, which consent Company may give or withhold at its sole discretion. Company may assign this Agreement to a third-party upon written notice to Customer.

Section 13.7 Waiver and Severability of Terms. The failure of Company to exercise or enforce any right or provision of this Agreement shall constitute a waiver of such right or provision. If any provision of this Agreement is found, by a court of competent jurisdiction, to be invalid, the Parties nevertheless agree that the court should endeavor to give effect to the Parties’ intentions as reflected in the provision, and the provisions of this Agreement remain in full force and effect.

Section 13.8 Governing Law; Submission to Jurisdiction. This Agreement and the relationship between the Parties shall be governed by the laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Indiana. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the commercial courts of the State of Indiana, in each case serving the City of Fishers and County of Hamilton, and each Party irrevocably submits to the exclusive jurisdiction of those courts in suit, action, or proceeding. Service of process, summons, notice, or other document by mail to the Party’s address set forth in this agreement shall be effective service of process for any suit, action, or other proceeding brought in these courts.

Section 13.9 Changes. At Company’s discretion, Company may change the Subscription Agreement to reflect current acceptable practices. Company will take reasonable changes via Company’s website. Customer’s continued use of the site and the services after any changes to this Agreement will be regarded as acceptance of Company’s practices around privacy and personal information. If Company makes a significant change to this Subscription Agreement, Company will request Customer to re-consent to the Amended Agreement.

Section 13.10 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by the Party of any of its obligations under Article 8 or, in the case of Customer, Section 2.3 or Section 3.3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy; and Parties agree that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, or to prove actual damages, or that monetary damages, are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

Section 13.11 Non-disparagement. Customer will not disparage Company, its Affiliates or Subcontractors and each of their respective officers, directors, employees, agents, successors, and assigns, or any Products or Services offered by Company, nor will it engage in activities that may injure the goodwill of Company, its Affiliates or Subcontractors, or each of their respective its officers, directors, employees, agents, successors, and assigns, or Company’s Products or Services. Customer’s failure to comply with the terms of this Section will entitle Company to immediately terminate this Agreement and for the injured party(ies) to recover any and all damages arising from, or relating to, Customer’s disparagement.

Section 13.12 Non-Solicitation. Parties agree not to hire, or attempt to hire, employees of the other Party involved in the performance of this Agreement, without the prior, written consent of the other Party, during the then-current Term, as defined in the Products & Services Agreement, and for a period of twelve (12) months from the date of non-renewal, or termination, of this Agreement. Notwithstanding the foregoing, either Party may hire any employee of the other Party, who has responded to general announcements for a position, that has been publicized in various methods, including, but not limited to, internet postings, local or national newspapers, radio or television advertising, job fairs, notices to colleges or technical schools, and/or placement professionals.

Section 13.13 Limited License and Restrictions on Use of Customer Data.

  • Subject to the terms and conditions of this Agreement, Customer hereby grants Company a limited, royalty-free, fully-paid up, non-exclusive, transferable, and sublicensable license to Process the Customer Data in the United States strictly as instructed by Customer or an Authorized User and solely as necessary to provide the Services for Customer’s benefit as provided in this Agreement for so long as Customer or any Authorized User uploads or stores such Customer Data for Processing by or on behalf of the Company on the Company Systems.
  • Company shall not combine or commingle Customer Data with data or information of Company or any third party, and shall logically segregate and isolate Customer Data from all such Company and third-party data.
  • For avoidance of doubt, Company shall not use, or permit any Person to use, Customer Data or any other Confidential Information of Customer to train or retrain any foundational AI model or large language model, whether operated by Company or any third-party AI provider. Notwithstanding the forgoing, Company may use Customer Data as follows: (a) Company may use Customer’s AI Input and Customer’s AI Output, including non-anonymized data, solely to tune, validate, modify, update, or otherwise improve the AI Features for the specific use and benefit of that Customer and its Authorized Users, as described in this Agreement or any supporting agreements; and (b) Company may use Customer’s AI Input and Customer’s AI Output that does not include any Personal Information, in an aggregate and anonymized manner only, solely to tune, validate, modify, update, or otherwise improve the AI features across the platform for the benefit of the Company’s customers generally. Under no circumstances shall such use extend to training or retraining any foundational AI model or large language model. (c) Company shall contractually require all third-party AI subcontractors and providers with access to Customer Data to (i) not use Customer Data to train, retrain, or otherwise improve their own foundational AI models or large language models; and (ii) process Customer Data solely as instructed by Company for the purpose of providing the Subscriptions.
  • Notwithstanding anything to the contrary in this Agreement, Company may monitor Customer’s use of the Subscription Services and collect and use User Data only in an aggregate and anonymized manner solely to compile statistical and performance information related to the provision and operation of the Subscription Services (“Aggregated Statistics”). For the avoidance of doubt, Aggregated Statistics shall be aggregated and anonymized and shall not identify Customer, or its Confidential Information. Subject to the terms and conditions of this Agreement, Customer hereby grants Customer a perpetual/limited, irrevocable, royalty-free, fully-paid up, non-exclusive license to use User Data to compile Aggregated Statistics and to use Aggregated Statistics solely for its internal business purposes.

Section 13.14 No Modification of Confidentiality Obligations. Customer Data that consists of Confidential Information will remain subject to the provisions of this Agreement, and nothing in this Agreement shall negate or otherwise affect any of Company’s obligations herein with respect to Customer’s Confidential Information.

Section 13.15 Counterparts; Electronic Execution. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. This Agreement may be executed via clickwrap/click-thru acknowledgement of the parties, or otherwise executed via electronic means, including via DocuSign, AdobeSign, or similar program.

Section 13.16 DEFINITIONS:

“Access Credentials” means any username, identification number, password, license, security key, security token, PIN, or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use Company.

“Action” has the meaning set forth in Section 10.1.

“Affiliate” means any entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.

“Aggregated Statistics” has the meaning set forth in Section 13.13(d).

“Agreement” has the meaning set forth in the caption.

“AI Features” means any feature, functionality, or component of the Subscription Services that incorporates, uses, depends on, or employs any AI Technology.

“AI Input” means information, data, materials, text, prompts, images, or other content that is, (i) input, entered, posted, uploaded, submitted, transferred, transmitted, or otherwise provided or made available for processing by or through AI Technology, or (ii) collected, downloaded, or otherwise received by AI Technology.

“AI Output” means information, data, materials, text, images, or other content (including text, numbers, images, photos, graphics, video, audio, or computer code) generated, produced, or otherwise output by AI Technology.

“AI Technology” means any and all machine learning, deep learning, and other artificial intelligence (“AI”) technologies, including statistical learning algorithms, models (including large language models), neural networks, and other AI tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts (“Generative AI Tools”).

“Authorized User” means each of the individuals authorized to use the Subscriptions pursuant to Section 2.1 and the other terms and conditions of this Agreement as described in the relevant Service Order.

“Change Order” has the meaning set forth in Section 1.1.

“Company Disabling Device” means any software, hardware, or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Company or its designee to disable Customer’s or any Authorized User’s access to or use of the Subscriptions automatically with the passage of time or under the positive control of Company or its designee.

“Company Indemnitee” has the meaning set forth in Section 10.2.

“Company Materials” means the Service Software, Specifications, Documentation, and Company Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Company or any Subcontractor in connection with the Subscriptions or otherwise comprise or relate to the Subscriptions or Company Systems. For the avoidance of doubt, Company Materials include any information, data, or other content derived from Company’s monitoring of Customer’s access to or use of the Subscriptions.

“Company Personnel” means all individuals involved in the performance of Subscriptions as employees, agents, or independent contractors of Company or any Subcontractor.

“Company Systems” means the information technology infrastructure used by or on behalf of Company in performing the Subscriptions, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.

“Company” has the meaning set forth in the caption.

“Confidential Information” has the meaning set forth in Section 7.1.

“Customer Data” means Customer’s Confidential Information and any and all other information, data, materials, works, expressions, or other content owned or provided by or on behalf of Customer to Company, or its representatives, or to which Company or its representatives have access, pursuant to this Agreement, including any that are (a) uploaded, submitted, posted, transferred, transmitted, or otherwise provided or made available by or on behalf of Customer to Service Provider or its representatives pursuant to this Agreement, including for processing or use by Company in providing the Services by or through the Subscriptions, (b) collected, downloaded, or otherwise received by Company for Customer pursuant to this Agreement, or any Product & Service Agreement, or at the written request or instruction of Customer, or (c) Deliverables or AI Output produced in connection with the Services by or through the Subscriptions. All outputs, including AI Output, copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise using any Customer Data are themselves also Customer Data. For the avoidance of doubt, Customer Data includes all User Data, Customer’s Intellectual Property, and Personal Information by or through the Subscriptions.

“Customer Failure” has the meaning set forth in Section 3.2.

“Customer Systems” has the meaning set forth in Section 4.2.

“Customer” has the meaning set forth in the caption.

“Disclosing Party” has the meaning set forth in Section 7.1.

“Documentation” means any manuals, instructions or other documents or materials that Company provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Subscriptions or Company Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Early Termination Fee” means with respect to each existing Service Order, an amount equal to: (a) the number of months remaining in the Service Term of the applicable Service Order from the Termination Date through the end of the applicable Service Term, multiplied by the MRCs with respect to each Service that is terminated; plus (b) all Charges that are unpaid as of the Termination Date; plus (c) all costs and expenses incurred by Company in disconnecting such Service; plus (d) any other amounts required to be paid by Customer pursuant to the applicable agreement.

“Effective Date” shall be the date in which the Subscription is available for use by the Customer (i.e., “goes live”). For further clarification and the avoidance of any doubt, the Effective Date will be the date in which all services specified are live and ready for Customer use (i.e., not in a development or testing phase).

“Fees” mean all NRCs, MRCs, Usage Fees, Additional Fees, and Costs and any and all other amounts payable by Customer pursuant to this Subscription Agreement as more fully defined in Article 6.

“Force Majeure Event” has the meaning set forth in Section 12.1.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Subscriptions or Company Systems as intended by this Agreement. Harmful Code does not include any Company Disabling Device.

“Highly Sensitive Personal Information” means an (a) individual’s government-issued identification number (including Social Security number, driver’s license number, state-issued identification number, or passport number); (b) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, password, or credentials that would permit access to an individual’s financial account; (c) biometric, genetic, health, medical, or medical insurance data; (d) geolocation data; (e) crime victim status; or (f) information regarding their racial or ethnic origin, religious or philosophical beliefs, sex life or sexual orientation, union membership, or citizenship or immigration status.

“Indemnitee” has the meaning set forth in Section 10.3.

“Indemnitor” has the meaning set forth in Section 10.3.

“Initial Service Order” has the meaning set forth in the caption.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and costs of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers.

“MRC” means the monthly recurring charges associated with a Service or rental of hardware.

“NRC” means the non-recurring charges associated with a Service or a hardware purchase.

“Permitted Use” means any use of the Subscriptions by an Authorized User for the benefit of Customer solely in or for Customer’s internal business operations.

“Personal Information” means information provided to Company by or at the direction of Customer, information which is created or obtained by Company on behalf of Customer, or information to which access was provided to Company by or at the direction of Customer, in the course of Company’s performance under this Agreement that: (a) identifies or can be used to identify an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (b) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, health, genetic, medical, or medical insurance data, answers to security questions, an individual’s internet activity or similar interaction history, inferences drawn from other personal information to create consumer profiles, geolocation data, an individual’s commercial, employment, or education history, and other personal characteristics and identifiers), in case of both subclauses (a) and (b), including, without limitation, all Highly Sensitive Personal Information. Customer’s business contact information is not by itself deemed to be Personal Information.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Process” means to take any action or perform any operation or set of operations that the Subscription Service is capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase, or destroy.

“Processing” and “Processed” have correlative meanings.

“Agreement Term” means the term for the Subscriptions specified in the relevant agreement as the term may be renewed.

“Representatives” means, with respect to a Party and its Affiliates’, employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

“Service Level Agreement” means the Service Level Agreement as maintained by Company.

“Specification” has the meaning set forth in Section 1.1.

“Subscriptions” has the meaning set forth in Section 1.1.

“Term” has the meaning set forth in Section 8.1.

“Terms of Use” means the Company’s Terms of Use, a copy of which is available at Terms of Use.

“Third Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Subscriptions that are not proprietary to Company.

“User Data” means any and all information reflecting the access or use of the Services by or on behalf of Customer, including data pertaining to any end user profile, visit, session, impression, click throughs, or click streams, and any statistical or other analysis, information, or data based on or derived from any of the foregoing.