INVOLVE.AI SAAS AGREEMENT
2708 Wilshire Blvd, #321, Santa Monica, CA 90403
This SaaS Agreement (this “Agreement”), effective as of the Order Form Effective Date (the “Effective Date”), is by and between involve.ai, Inc. (“involve.ai”) and (“Customer”). This Agreement includes and incorporates the Order Form, Exhibit A (“Service Levels and Support Services”) and any additional Order Forms incorporated by reference. involve.ai and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
This Agreement states the terms and conditions by which involve.ai will deliver and Customer will receive any or all of the Subscription Services, as set forth on any applicable Order Form. The specific services to be provided hereunder are identified in the Order Form(s) signed by the Parties. Each Order Form submitted, accepted and executed by both parties is hereby incorporated by reference into this Agreement. This Agreement, together with any Order Form, Statement of Work, and exhibits or addenda that in each case reference this Agreement, including but not limited to the Data Processing Agreement found at https://www.involve.ai/data-processing-addendum (“DPA”), is intended to cover any and all Subscription Services ordered by Customer and provided by involve.ai.
(a) “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ access and/or use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
(b) “Authorized User” means an employee or contractor whom Customer has authorized to access and use the Subscription Services.
(c) “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to involve.ai in connection with Customer’s access and/or use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by involve.ai and made available through or in connection with the Subscription Services.
(d) “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by involve.ai to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
(e) “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
(f) “Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by involve.ai in writing; or (iii) quote issued by involve.ai and accepted by Customer, in each case which references this Agreement and sets forth the applicable Subscription Services to be provided by involve.ai.
(g) “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
(h) “involve.ai IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, the Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
(i) “Subscription Services” means involve.ai’s proprietary software-as-a-service platform, and all associated technology, in object code format only, which is made available by involve.ai to Customer pursuant to an Order Form and is intended to enable Customer to track and analyze data relating to end-user and customer interactions with Customer’s products and services.
2. SUBSCRIPTION SERVICES; ACCESS AND USE.
2.1 Subscription Services.
Subject to the terms and conditions of this Agreement, involve.ai hereby grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 10.6) right to access and use the Subscription Services during the Term, solely for Customer’s internal business purposes.
Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) access or use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease any access or use of the Subscription Services to any other Person, or otherwise allow any Person to access or use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) access or use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by involve.ai for use expressly for such purposes; or (viii) access or use the Subscription Services, Documentation or any other involve.ai Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.
2.3 Authorized Users.
Customer will not allow any Person other than Authorized Users to access or use the Subscription Services. Customer may request to add additional Authorized Users at a pro-rated fee directly through the Subscription Services or through an approved Third Party Service (as defined below) as applicable. Customer may permit Authorized Users to access and/or use the Subscription Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement. Customer will be responsible for all acts, omissions and obligations of Authorized Users in connection with the activities contemplated by this Agreement and/or the Subscription Services, as though such acts, omissions and/or obligations were those of Customer. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify involve.ai if Customer knows or reasonably suspects that any user name and/or password has been compromised.
2.4 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, involve.ai reserves and, as between the Parties will solely own, the involve.ai IP and all rights, title and interest in and to the involve.ai IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
involve.ai will provide reasonable technical support to Customer by electronic mail and/or phone in connection with its use of the Subscription Services on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Pacific Time, with the exception of U.S. federal holidays (“Support Hours”), subject to the following conditions: (i) prior to initiating any support request, Customer (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (ii) Customer will reasonably cooperate with involve.ai support staff as needed to resolve the issue. Customer may initiate a helpdesk ticket during Support Hours by emailing involve.ai support or contacting Customer’s dedicated account manager.
From time to time Customer or its employees, contractors, or representatives may provide involve.ai with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants involve.ai a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with involve.ai’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.
3. FEES AND PAYMENT.
Customer will pay involve.ai the fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Services are billed to and payable in advance by the Customer, for the length of term, which is applicable to the Customer’s purchase of Services and set forth in the relevant Order Form. Except as otherwise provided in the relevant Order Form, involve.ai will issue invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, involve.ai will charge Customer’s selected payment method (such as a credit card, debit card, gift card/code, or other method available in Customer’s home country) for any Fees on the applicable payment date, including any applicable taxes. If involve.ai cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and involve.ai will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, involve.ai may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
Payments due to involve.ai under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by involve.ai or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 0.5% per month or, if lower, the highest rate permitted by applicable law, plus any expenses for collection and involve.ai may suspend Services until all payments are made in full. Customer will reimburse involve.ai for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. involve.ai reserves the right to suspend the Subscription Services with notice in the event of Customer non-payment of past due invoices.
Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to involve.ai hereunder, other than any taxes imposed on involve.ai’s income. If involve.ai has the legal obligation to pay or collect any Taxes for which the Customer is responsible under the Terms, the involve.ai will invoice the Customer for the applicable amount which the Customer hereby agrees to pay or reimburse to involve.ai forthwith unless the Customer provides the involve.ai with a valid tax exemption certificate issued by the applicable and competent taxing authority. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to involve.ai hereunder, Customer will pay an additional amount, so that involve.ai receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
4. CONFIDENTIAL INFORMATION.
As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure, and includes, without limitation, non-public information, data, content, reports or other materials stored in connection with the use of the Services. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of involve.ai. However, Confidential Information will not include any information or materials that: (i) are at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) are rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that involve.ai may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
4.3 Terms of Agreement.
The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
5. CUSTOMER MATERIALS AND DATA.
involve.ai acknowledges that, as between Customer and involve.ai and except as set forth in Section 5.2, Customer owns and retains all right, title and interest in and to all Customer Materials.
Notwithstanding anything in this Agreement to the contrary, Customer hereby grants to involve.ai (a) a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display and perform publicly, and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Subscription Services, and (b) a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right and license to use, host, reproduce, display and perform publicly, and modify the Customer Materials solely for related internal operations and functions such as operational analytics and reporting, internal financial reporting and analysis, audit functions, archival, and other internal business purposes. In addition, involve.ai may (c) collect usage information of Authorized Users solely in an aggregated, anonymized and de-identified form for the sole purpose of enhancing and improving its products and services and for other development, diagnostic and corrective purposes in connection with the Subscription Services and other offerings.
5.3 Data Security.
Each Party will comply with the applicable terms and conditions of the DPA. Without limiting the foregoing, each Party will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws. Involve.ai will maintain an industry standard data security program including precautions that are designed to (a) ensure the security and confidentiality of customer data, (b) protect against any anticipated threats or hazards to the security or integrity of customer data, including without limitation accidental loss or destruction of, or damage to customer data, (c) protect against unauthorized disclosure, access to, or use of customer data, and (d) ensure the proper disposal of customer data. If involve.ai discovers or is notified of any: (1) unauthorized destruction, loss, alteration of or access to customer data, or (2) actual breach of security of customer data (each a “Security Incident”), involve.ai will promptly notify Customer of such Security Incident and whether customer data was in involve.ai or its third-party service provider’s possession at the time of the Security Incident.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Mutual Warranties.
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES AND OTHER INVOLVE.AI IP ARE PROVIDED ON AN “AS IS” BASIS, AND INVOLVE.AI MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE INVOLVE.AI IP, THE SUBSCRIPTION SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, INVOLVE.AI HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, INVOLVE.AI HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
6.3 Third Party Services.
Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. involve.ai does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.
7.1 involve.ai Indemnification.
Subject to Section 7.2, involve.ai will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s authorized access or use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by involve.ai (including reasonable attorneys’ fees) resulting from such Claim. If involve.ai receives information about an infringement or misappropriation claim related to the Subscription Services, involve.ai may in its discretion and at no cost to the Customer (i) modify the Subscription Services so that they are no longer claimed to infringe or misappropriate, without breaching the involve.ai’s warranties or degrading the Subscription Services in any material respect, (ii) obtain a license for the Customer’s continued use of the Subscription Services in accordance with the Terms, or if neither (i) or (ii) is available (iii) terminate the Terms and refund the Customer for any prepaid fees covering the remainder of the Term of the Agreement.
involve.ai’s obligations under Section 7.1 will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by involve.ai; (iv) modifications to the Subscription Services by anyone other than involve.ai; or (v) combinations of the Subscription Services with software, data or materials not provided by involve.ai.
7.3 IP Remedies.
If involve.ai reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, involve.ai may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue using the Subscription Services. If involve.ai determines that neither alternative is commercially practicable, involve.ai may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, involve.ai will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.
7.4 Customer Indemnification.
Subject to Section 7.5, Customer will defend involve.ai against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) access or use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2.2, and in each case, will indemnify and hold harmless involve.ai against any damages and costs awarded against involve.ai or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
7.5 Indemnification Procedures.
The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
8. LIMITATIONS OF LIABILITY.
8.1 Exclusion of Damages.
EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE INVOLVE.AI IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.2 Total Liability.
IN NO EVENT WILL INVOLVE.AI’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE INVOLVE.AI IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO INVOLVE.AI IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT INVOLVE.AI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
8.3 Basis of the Bargain.
THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN INVOLVE.AI AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
9. TERM AND TERMINATION.
The Term of this Agreement begins on the Effective Date and will continue until the expiration or termination of all Order Forms.
Subject to earlier termination as provided in these Terms, the Term shall be automatically renewed for an additional period of one (1) year (each a “Renewal Term”), unless Customer requests renewal at least ninety (90) days prior to the end of the then-current term by written notice to involve.ai.
Either Party may terminate this Agreement or any Order Form, if: (a) the other Party materially breaches this Agreement, and such breach remains uncured fifteen (15) days after the non-breaching Party provides the breaching Party with written notice of such breach; (b) it becomes insolvent or ceases to carry on business. In the case of any such termination, the Customer will pay the involve.ai immediately and in full for the Subscription Services up to and including the last day on which the Subscription Services are provided to the Customer. In addition to any other remedies it may have, involve.ai may terminate its agreement with Customer, upon thirty (30) days written notice if involve.ai is required to do so by law (for example, if its provision of the Subscription Services are, or become, unlawful and involve.ai for any reason no longer can offer the Subscription Services or no longer can offer the Subscription Services in Customer’s country of residence).
This Section 9.4 and Sections 1, 2.2, 2.4, 2.6, 3, 4, 5.2(b), 5.2(c), 5.3, 5.4, 5.5, 6.2, 6.3, 7, 8, 9.4, 9.5, and 10 survive any termination or expiration of this Agreement.
9.5 Effect of Termination.
Upon expiration or termination of this Agreement: (a) the rights granted pursuant to Section 2.1 will terminate; and (b) Customer will return or destroy, at involve.ai’s sole option, all involve.ai Confidential Information in its possession or control, including permanent removal of such involve.ai Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at involve.ai’s request, certify in writing to involve.ai that the involve.ai Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination or entitle Customer to any refund. Upon expiration or termination of this Agreement, involve.ai will provide Customer with the ability to export the Customer Materials in any format which involve.ai’s Services support for thirty (30) days from the time of expiration or termination, and any Customer Materials that are exported may be used at no additional cost to Customer, and involve.ai shall convey, at no additional cost to Customer, all rights necessary for Customer and its affiliates to have indefinite use of the Customer Materials. After (30) days, involve.ai may, but is not obligated to (unless requested by the Customer in writing), delete all the Customer Materials from the involve.ai’s records and/or storage, and Customer will not be able to access the Customer Materials.
10.1 Entire Agreement.
This Agreement, including its Order Forms and exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the address or email address set forth in the Order Form attached above or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 10.2. Such notices will be deemed given: (a) when delivered personally; (b) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (c) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
If any provision of this Agreement or any Order Form is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. Headings and captions are used in these Terms and in the Order Form are solely for ease of reference and shall not be deemed or considered to affect in any manner the meaning or intent of these Terms, of the Order Form, or any provision thereof.
10.5 Governing Law; Jurisdiction.
This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Santa Clara County and the Parties irrevocably consent to the personal jurisdiction and venue therein.
Customer will not assign or transfer this Agreement, by operation of law or otherwise, without involve.ai’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. involve.ai my assign or transfer this Agreement without Customer’s consent to any third party. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
10.7 Equitable Relief.
Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2.2, would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, 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.
10.8 Force Majeure.
Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics (including but not limited to SARS-CoV-2 (COVID-19) or any mutation thereof), epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
Subject to the provisions of Section 4, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the Term, involve.ai may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on involve.ai’s website and in its marketing materials to identify Customer as involve.ai’s customer, and for the purpose of providing the Subscription Services and any Professional Services to Customer, provided that involve.ai shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.
involve.ai may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that the involve.ai remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), involve.ai will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of involve.ai.
10.11 Export Regulation.
Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.
10.12 U.S. Government End Users.
The Subscription Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.
10.13 Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
10.14 No Third-Party Beneficiaries.
No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
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.
SERVICES LEVELS & SUPPORT SERVICES
involve.ai shall use commercially reasonable efforts to make Services accessible and operational twenty-four (24) hours a day, seven (7) days a week throughout the term of the Services. involve.ai understands from time to time that Services may be unavailable or inaccessible; however, involve.ai shall meet or exceed a monthly availability of at least 99.5% (“Monthly Availability”).
involve.ai shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the Services during periods of scheduled and unscheduled downtime.
involve.ai shall use commercially reasonable efforts provide notice to Customer of an occurrence of unscheduled downtime that is anticipated to continue for more than one (1) hour.
involve.ai shall use commercially reasonable efforts to schedule scheduled downtime for routine maintenance, systems repair, and systems upgrades each week from 8:00AM Saturday to 8:00AM Sunday Pacific Time. Scheduled downtime shall not exceed eight (8) hours per month.
involve.ai shall notify Customer of planned scheduled downtime, but in no event less than seventy-two (72) hours in advance. involve.ai reserves the right to change scheduled downtime period with seventy-two (72) hours advance prior notice to Customer; provided, however, involve.ai shall make every effort to schedule maintenance, systems repairs and systems upgrades during low utilization periods (typically nights, weekends and holiday periods) of the Services.
Service credits do not apply, and involve.ai is not responsible for, failure to meet level requirements if such failure results from:
(i) failure or deficient performance of power, equipment, services, or systems not provided by involve.ai or its subcontractors (inclusive of the involve.ai’s hosting facility);
(ii) service interruptions, deficiencies, degradations or delays due to Customer’s inability to access the internet; or
(iii) misconduct and/or delays caused by the Customer and/or caused by Force Majeure notified in accordance with the Agreement.
Service Level Credits and Remedies
In the event involve.ai does not meet the Uptime Percentage levels specified below, Customer will be entitled, upon written request, to a service level credit (“Service Level Credit”) to be calculated, with respect to the applicable Hosted Environment, as follows:
All Service Level Credits shall be either refunded to Customer upon request or applied to the following reflected in the next years’ billing for Service fees.
If involve.ai fails to meet the Availability Percentage Service Level, then involve.ai will issue Customer the following service level credits:
involve.ai shall provide maintenance and support services in support of the Services (collectively, "Support Services"). Services shall include Support Services and involve.ai shall not assess any additional fees, costs or charges for such Support Services. All Support Services are provided remotely by involve.ai.
All Service Level Credits shall be reflected in the next years’ billing for Service fees unless the Agreement will not be renewed, in which case the involve.ai shall pay the Service Level Credits no later than 30 days after the Term concludes.
(a) correct all service errors, including providing defect repair, programming corrections, and remedial programming;
(b) provide unlimited live chat support and telephone support on an as needed basis between 9AM Monday and 5PM Friday Pacific Time.
(c) provide online access to technical support bulletins and other user support information and forums, to the full extent involve.ai makes such resources available; and
(d) respond to and resolve support requests.
involve.ai shall maintain an incident tracking system of problems related to use of Services, and to measure performance of maintenance.
Support Services Response Times & Resolution Efforts
Definition: A problem has been identified that makes the continued use of one or more functions impossible (or severely restricted) and prevents the Customer from continued production or severely risks critical business operations. Problems may cause loss of data or restrict data availability or cause significant financial impact to the Customer.
Definition: A problem has been identified that severely affects or restricts major functionality. The problem is of a time-sensitive nature and important to long term productivity but is not causing an immediate work stoppage. No workaround is available, and operation can continue in a restricted fashion.
Definition: (i) A minor problem that does not have a major effect on business operations, or (ii) A major problem for which a workaround acceptable to the Customer exists.
Definition: A minor condition or documentation error that has no significant effect on the Customer’s operations. Additional requests for new feature suggestions, which would result in new functionality.
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Last Updated: October 2022