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MASTER SERVICES AGREEMENT
Last Updated: March 05, 2026<\/p>
This Master Service Agreement, any applicable Order Forms, Exhibits, and\/or Addenda hereto (collectively, the \u201cAgreement\u201d) is a legal agreement between you (\u201cClient\u201d) and Company (defined below) to purchase access to the Company Platforms (defined below) and the related subscription services and other services that Company may provide to Client in an Order Form (defined below) (collectively, the \u201cServices\u201d). This Agreement governs the use of the Services Company provides to you. Capitalized terms used but not defined herein shall have the meanings ascribed to them in any applicable Order Form.<\/p>
\u201cCompany\u201d means BlueFolder Software, Inc., a subsidiary of Fullsteam Operations LLC.<\/p>
\u201cOrder Form\u201d means a separate ordering agreement (including but not limited to a statement of work, proposal, or change order), or page on the Site pursuant to which Client purchases Services.<\/p>
\u201cCompany Platforms\u201d means collectively and individually, https:\/\/bluefolder.com\/<\/a> and any of their subdomains (collectively, the \u201cSite\u201d) and any websites, platforms, exchanges, successor platforms and exchanges, software, hardware, portals, applications, and Application Programming Interfaces (\u201cAPI\u201ds), programs, components, functions, screen designs, reporting data, and report formats owned or operated by Company and all updates, upgrades, \u00a0and other derivative works, releases, fixes, patches, etc. related to the software that Company develops, deploys, or makes available to Client during the Term of this Agreement, as they may be modified, relocated and\/or redirected from time to time, to receive, or review data and results of the Services.<\/p> BY ACCESSING OR USING THE SERVICES OR ENTERING INTO AN ORDER FORM HEREUNDER, YOU REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT\u2019S BEHALF, AND YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS AND CONDITIONS OF COMPANY\u2019S PRIVACY POLICY.<\/a> IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT OR ARE NOT AUTHORIZED TO ACCEPT THIS AGREEMENT ON CLIENT\u2019S BEHALF, THEN YOU ARE NOT AUTHORIZED TO AND ARE PROHIBITED FROM ACCESSING THE SERVICES. THE SERVICES ARE OFFERED AND AVAILABLE TO USERS WHO ARE EIGHTEEN (18) YEARS OF AGE OR OLDER. BY USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY AND MEET ALL OF THE FOREGOING ELIGIBILITY REQUIREMENTS. IF YOU DO NOT MEET ALL OF THESE REQUIREMENTS, YOU MUST NOT ACCESS OR USE THE SERVICES.<\/p> In the event there is any conflict between the terms and conditions in this Master Service Agreement and the terms and conditions in any applicable Order Form, the terms of the Order Form shall prevail.<\/p> The \u201cEffective Date\u201d of this Agreement is the date which is the earlier of (a) Client\u2019s initial access to the Services through any online provisioning, registration, or order process, or (b) the effective date of the first Order Form. This Agreement governs Client\u2019s initial purchase of Services on the Effective Date as well as any future purchases made by Client that reference this Agreement.<\/p> <\/p> 1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 SERVICES AND TERMS. <\/p> 2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 PROHIBITIONS. Use of and access to the Services is permitted only by Client and its Authorized Users. Under no circumstances may Client or any Authorized User modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Services, modify or adapt the Services in any way, use the Services to create a derivative work, or grant any other person or entity the right or access to do so, without the Company\u2019s advance written consent. Except as expressly authorized by this Agreement, and without limiting the foregoing, Client and Authorized Users \u00a0represent and warrant that they will not (a) modify, copy, duplicate, reproduce, unbundle, license, sublicense, sell, assign, transfer, display, distribute, lend, rent, lease, sublease, or make available the Services or any portion thereof to any third party; (b) provide, transmit, disclose, divulge, or make available to, or permit use of the Services by, any third party or entity or machine; (c) use the Services in a service bureau, out-sourcing or other arrangement to process or administer data on behalf of any third party; (d) publish, post, upload, or otherwise transmit any unlawful, false, offensive, defamatory, or infringing data or any data that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (e) use or knowingly permit the use of any security testing tools in order to prove, scan, or attempt to penetrate or ascertain the security of Company or the Services without the prior written consent of Company; (f) attempt to gain any unauthorized access to the Services or Company customer data or attempt any unauthorized alteration or modification thereof; (g) use or launch, or knowingly permit the use or launch of, any automated system, including, without limitation, \u201crobots,\u201d \u201cspiders,\u201d or \u201coffline readers,\u201d that access the Services; or (h) use the Services or the information contained therein in violation of any applicable law or regulation.<\/p> <\/p> 3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 SUSPENSION. Company \u00a0may, at its sole discretion, suspend Client\u2019s and\/or \u00a0Authorized Users\u2019 use of the \u00a0Services (in whole or in part) if Company determines that (a) Client or Authorized Users breaches any terms of this Agreement including the applicable Order Form, (b) Client\u2019s account is thirty (30) days or more overdue for payment after being notified, or (c) Client\u2019s or Authorized Users\u2019 use of the Services risks harm to other customers of Company or the security, availability, or integrity of the Services.<\/p> <\/p> 4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CLIENT DATA.<\/p> 4.1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Client Data. Use of the Services may involve the Company\u2019s receipt, processing, and storage of data, information, or material input by Client, Authorized Users, and Client\u2019s end user customers who use the Services (\u201cEnd Users\u201d) (collectively, \u201cClient Data\u201d). Client affirms, represents, and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to collect, use, and authorize Company to use all Client Data in the manner contemplated hereunder and to transfer to and process such Client Data. Client further represents and warrants that Company\u2019s use of Client Data does not and will not violate or infringe any applicable law, any third-party rights, or any terms or privacy policies that apply to the Client Data.<\/p> 4.2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 License to Client Data. Client hereby grants the Company the worldwide, non-exclusive, right to use, copy, store, transmit, display, modify and create derivative works of Client Data, as necessary to provide the Services under this Agreement.<\/p> 4.3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Accuracy of Client Data. Client is solely responsible for the accuracy, content, currency, completeness, and delivery of the Client Data provided by Client, Authorized Users, and Client\u2019s End Users.<\/p> 4.4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Return of Client Data. Upon termination or expiration of this Agreement, or at Client’s request, Company shall provide access to all Client Data in a commonly used machine-readable format or such other format as agreed by Client and Company. Company shall provide access to the Client Data for no more than thirty (30) days after the termination or expiration of the Agreement. After this thirty (30) day period, Company may delete Client Data in accordance with its standard schedule and procedures.<\/p> 4.5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Client Data Migration Consent. Client acknowledges and agrees that Company may, at its discretion, transition or migrate Client and\/or Client Data to another software or service offering owned and operated by Company under a different brand name. Such migration may occur where Company determines it is necessary for operational efficiency, improved functionality, service unification, or other business purposes. Company will provide prior written notice to Client of any such migration and will ensure that the migrated services are materially comparable to those currently provided. Company shall handle all Client Data in accordance with applicable data protection laws and the Company\u2019s Privacy Policy throughout the migration process.<\/p> <\/p> 5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 PAYMENT. 5.2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Taxes. Client is responsible for any sales, use, goods and services taxes (GST), harmonized sales taxes (HST), value-added, withholding or similar taxes or levies that apply to any Order Form, whether domestic or foreign (\u201cTaxes\u201d), other than Company\u2019s income tax. If Company is legally obligated to pay or collect Taxes for which Client is responsible under this Agreement, the appropriate amount will be computed based on Client\u2019s address listed in the Order Form, unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. \u00a0Fees listed on or invoiced pursuant to an Order Form are exclusive of Taxes.<\/p> <\/p> 6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CLIENT OBLIGATIONS. 6.2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Client Requirements. Client shall be responsible for providing and maintaining all necessary hardware, software, electrical and other physical requirements for Client’s use of the Services, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Services.<\/p> 6.3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Accessibility. As it relates to Client\u2019s use of the Services, Client is solely responsible for compliance with all applicable accessibility laws, rules, and regulations, including, but not limited to, Title III of the Americans with Disabilities Act (\u201cADA\u201d), and (if applicable) New York\u2019s state and city level Human Rights Act and California\u2019s Unruh Civil Rights Act.<\/p> 6.4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Acceptable Use Policy. Client is solely responsible for the content of any postings, communications, data, or transmissions using the Services, or any other use of the Services by Client or by any person or entity Client permits to access the Services. To the extent the Services allows uploading or posting of content or data by Client, Authorized Users, or End Users, Client will ensure that any content or data posted by or on behalf of Client, Authorized Users, or End Users is not inappropriate, illegal, obscene, threatening, libelous, discriminatory, hateful, or in violation of any third-party rights. If and to the extent the Services includes, integrates or links to any third party content, data or software, including without limitation any open source services (collectively, \u201cThird Party Content\u201d), Client acknowledges and agrees that (a) Company is not responsible for any Third Party Content and it is provided as is; and (b) any Third Party Content may be subject to additional terms and conditions (including applicable terms of use, privacy policies, end user license terms, etc., for which Client shall be responsible for agreeing to and complying with. Client represents and warrants that it will: (a) not use the Services in a manner that is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; (b) not violate or tamper with the security of any Company computer equipment or program. If Company has reasonable grounds to believe that Client is utilizing the Services for any illegal or disruptive purpose, Company may suspend the Services immediately with or without notice to Client. Company may terminate the Agreement for breach of this Agreement if Client fails to adhere to the foregoing acceptable use standards. Client shall defend, indemnify and hold harmless Company from and against all liabilities and costs (including reasonable attorneys\u2019 fees) arising from any and all third-party claims based upon the content of any such communications.<\/p> 6.5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Calls and Messaging. If the Services include email, calling, and\/or text messaging features which enable Client to text third parties via the Services, Client is solely responsible for ensuring that the email, calling and\/or text message feature(s) of the Services are utilized in a manner that complies with all applicable local, state, and federal laws, rules and regulations governing the sending of emails, calls, and\/or text messages.\u00a0 This includes, but is not limited to, compliance with applicable email and telemarketing laws such as the CAN-SPAM Act and Telephone Consumer Protection Act (\u201cTCPA\u201d), 47 U.S.C. \u00a7 227, the EU ePrivacy Regulation, and comparable state laws. Client also represents and warrants that each third party to whom Client calls or texts has specifically granted Client permission to send such messaging; and that opt-out options are provided to such third parties pursuant to applicable law, rule, or regulation. Client is solely responsible for the content of any messaging by Client via the Services to third parties, and under no circumstances shall Company be identified by Client as the sender of such messaging. Client acknowledges it is responsible for obtaining any and all permissions required to use the Services\u2019 calls, text messaging, or email features.<\/p> 6.6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Payment Processing. Unless otherwise stated in an applicable Order Form, Client must be enrolled in and processing payments through Company\u2019s integrated payments processing platform within sixty (60) days of the Effective Date of this Agreement. If Client does not process payments through Company\u2019s integrated payment solution within the required timeframe, Company, in its sole discretion, may delay or remove access to the Services, restrict certain Services product features, increase Fees and\/or charge a non-integrated payment processing fee unless Company determines that Client qualifies for a temporary or ongoing exemption (in whole or in part). Client acknowledges that Company may delay access or restrict access to certain product features or the Services altogether for non-compliance within the required timeframe.\u00a0 Company reserves the right to apply non-integration payment processing fees in its sole discretion to Client or Franchisee, and to apply, modify, increase, decrease the non-integration payment processing fee at any time.<\/p> 7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 SECURITY AND PRIVACY; DATA PROCESSING. Company shall use reasonable and appropriate administrative, physical, and technical security programs and procedures designed to protect and secure the Services and Client Data. Client agrees to use reasonable efforts to prevent unauthorized persons from having access to the Services or any equipment providing the Services. Company and Client agree to notify the other party promptly upon becoming aware of any unauthorized access or use of the Services or Client Data by any third party. Client Data may be stored and processed in the United States or any other country in which Company or its service providers maintain facilities. If you are located in the European Union or other regions with laws governing data collection and use that may differ from U.S. law, please note that we may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction, and you consent to the transfer, use, and disclosure of Client Data to the U.S. or any other country in which Company, Company\u2019s Affiliates, or its service providers maintain facilities.<\/p> <\/p> 8.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 TERM AND TERMINATION.<\/p> 8.1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Term. This Agreement starts on the Effective Date and continues until expiration or termination of all applicable Order Forms or until terminated as authorized in this Agreement, whichever occurs first (the \u201cTerm\u201d). \u00a0Unless otherwise set forth in the Order Form, the Agreement shall begin on the Effective Date and shall continue for twelve (12) months thereafter (the \u201cInitial Term\u201d). After the Initial Term, the term of the Agreement shall automatically renew for additional, successive twelve (12) month terms unless either party provides written notice of termination to the other party no less than ninety (90) days prior to the end of the then current term.<\/p> 8.2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Termination. Either party may terminate this Agreement (including all Order Forms) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within thirty (30) days after receipt of written notice of such breach by the other party, (b) ceases operation without a successor, or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors\u2019 arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within sixty (60) days.<\/p> 8.3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Additional Termination Rights. Company may terminate this Agreement at any time in its sole discretion upon thirty (30) days\u2019 notice to Client.<\/p> 8.4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Early Termination. If Client terminates the Agreement prior to the expiration of the applicable Order Form, or Company terminates for material breach, then Client shall forfeit all pre-paid amounts for Fees, and for those arrangements in which the Fees are not paid in advance, Client shall pay Company an amount equal to the monthly Fee multiplied by the number of months remaining in the Term.<\/p> 8.5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Effect of Termination. Upon termination or expiration of this Agreement or Order Forms for any reason, Client\u2019s access to the Services will cease, other than limited use of the Services to export Client Data. Client will immediately return any Documentation in its possession to Company. Upon termination or expiration of this Agreement, the Client will return or destroy all of Company\u2019s Confidential Information within its possession, custody, or control and will certify such destruction to Company upon request. Client Data and other Confidential Information may be retained subject to the receiving party\u2019s retention practices until such information is scheduled to be deleted in accordance with the receiving party\u2019s policies and procedures, but will remain subject to this Agreement\u2019s confidentiality restrictions until deleted.<\/p> 8.6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Survival. Any provision of this Agreement which contemplates performance or observance subsequent to its termination or expiration, either explicitly or by its nature, shall continue in full force and effect.<\/p> <\/p> 9.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LIMITED WARRANTY AND DISCLAIMER.<\/p> 9.1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Limited Warranty. Client and Company warrant that each party has the corporate power and authority to enter into and carry out the terms of the Agreement. Company further warrants to Client that: (a) the Services will perform materially as described in the Documentation; (b) Company will perform any Services in a professional and workmanlike manner; and (c) Company will use industry-standard measures designed to ensure that the Services (excluding Client Data) does not contain viruses, malware or similar harmful code.<\/p> 9.2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Warranty Remedy. If Company breaches this Section and Client makes a reasonably detailed warranty claim within thirty (30) days of discovering the issue, then Company will use reasonable efforts to correct the non-conformity. If Company determines such remedy to be impracticable, either party may terminate the affected Order Form as it relates to the non-conforming Services. Company will then refund Client any pre-paid, unused amounts for Fees for the terminated portion of the Services. These procedures are Client\u2019s exclusive remedy and Company\u2019s entire liability for breach of this Section. These warranties do not apply to (i) issues caused by misuse or unauthorized modifications by Client or its authorized users, or (ii) issues in or caused by Third-Party Providers or other third-party systems.<\/p> 9.3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Warranty Disclaimer. EXCEPT AS STATED AND EXPRESSLY PROVIDED IN THE WARRANTY SECTION ABOVE, THE SERVICES, THE DOCUMENTATION, AND ANY PROFESSIONAL SERVICES DELIVERABLES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED \u201cAS IS\u201d WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, LEGAL, OR OTHERWISE, WITH RESPECT TO THE \u00a0SERVICES, THE DOCUMENTATION AND ANY PROFESSIONAL SERVICES DELIVERABLES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPLETENESS, ACCURACY, OR ARISING FROM A COURSE OF DEALING, USAGE, OR\u00a0 TRADE PRACTICE. COMPANY EXPRESSLY DISCLAIMS THAT CLIENT\u2019S USE OF THE SERVICES, OR PROFESSIONAL SERVICES DELIVERABLES WILL BE UNINTERRUPTED OR ERROR-FREE, WILL MEET CLIENT\u2019S PARTICULAR REQUIREMENTS, THAT DEFECTS IN THE SERVICES, IF ANY, WILL BE CORRECTED; OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE OR THAT IT WILL MAINTAIN CLIENT DATA WITHOUT LOSS. COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT THE SECURITY AND PROTECTION OF CLIENT DATA NOR GUARANTEE DATA AVAILABILITY.\u00a0 CLIENT BEARS THE SOLE RESPONSIBILITY AND LIABILITY FOR MAINTAINING BACKUP AND ARCHIVE COPIES OF CLIENT DATA. COMPANY DOES NOT WARRANT OR REPRESENT THAT USE OF THE SERVICES WILL RESULT IN COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, AND CLIENT UNDERSTANDS THAT IT IS SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. COMPANY IS NOT LIABLE FOR DELAYS, FAILURES OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE COMPANY\u2019S CONTROL, INCLUDING THE FAILURE TO PROMPTLY IMPLEMENT THE LATEST RELEASE OF THE SERVICES BY OR AT THE DIRECTION OF CLIENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD. CLIENT ALONE IS RESPONSIBLE FOR ANY THIRD-PARTY CONTENT, AND COMMUNICATIONS, MESSAGES, OR OTHER CONTENT THAT ITS AUTHORIZED USERS\u2019 POST, UPLOAD, SUBMIT, TRANSMIT, OR SHARE VIA THE SERVICES, OR THE PROFESSIONAL SERVICES DELIVERABLES, INCLUDING ALL CLIENT DATA.<\/p> <\/p> 10.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 LIMITATION OF LIABILITY.<\/p> 10.1.\u00a0\u00a0\u00a0 UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE TO CLIENT OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, WORK STOPPAGE, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT, LOSS OF REPUTATION, OR LOST CONTRACTS, OR FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CLIENT.<\/p> 10.2.\u00a0\u00a0\u00a0 TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, COMPANY\u2019S ENTIRE AGGREGATE LIABILITY, AND CLIENT\u2019S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES SHALL NOT EXCEED THE LESSER OF (1) TEN THOUSAND US DOLLARS ($10,000.00), OR (2) TOTAL FEES PAID OR PAYABLE BY CLIENT TO COMPANY,\u00a0 PURSUANT TO THE APPLICABLE ORDER FORM IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.<\/p> 10.3.\u00a0\u00a0\u00a0 The waivers and limitations in this Section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose. Neither party may bring a claim or action, regardless of form, arising out of the Agreement more than twelve (12) months after the claim or cause of action arose.<\/p> <\/p> 11.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 INDEMNIFICATION.<\/p> 11.1.\u00a0\u00a0\u00a0 Company Indemnification. Company will indemnify, defend, and hold harmless Client and its officers, directors, agents and employees from and against any third-party claims (including any and all liabilities, damages, losses, costs and expenses and reasonable attorneys\u2019 fees) (\u201cClaims\u201d) finally awarded to the extent such Claims directly arise from Company\u2019s provision of the Services infringing on a third-party\u2019s intellectual property rights in the United States.<\/p> 11.2.\u00a0\u00a0\u00a0 Client Indemnification. Client will indemnify, defend, and hold harmless Company, its affiliates and their respective officers, directors, agents and employees from and against any and all third-party Claims to the extent such Claims arise from or relate to (1) Client Data or Third Party Content; (2) Client\u2019s breach of the Agreement or Order Form; (3) Client\u2019s gross negligence or willful misconduct; (4) modification to the Services or any deliverables made by or at the direction of Client and designed solely in accordance with specifications provided by Client; (5) Client\u2019s violation of applicable law; and\/or (6) Client\u2019s infringement of intellectual property rights of a third party.<\/p> 11.3.\u00a0\u00a0\u00a0 Indemnification Procedure. When seeking indemnification pursuant to this Agreement, the party seeking indemnification shall (1) promptly notify the indemnifying party in writing of the Claim provided that any failure or delay to provide such notice shall not affect a party\u2019s obligation to indemnify to the extent the indemnifying party is materially prejudiced by such failure or delay (2) give the indemnifying party reasonable information and cooperation required to defend such suit, claim or proceeding, and (3) allow the indemnifying party to control the defense of any such Claim and all negotiations for its settlement or compromise; provided, however, the indemnifying party shall not settle any claim without the indemnified party\u2019s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may be represented in the defense of any such claim, at the indemnified party\u2019s expense, by counsel of its selection. The indemnified party shall have no liability for settlements made or costs incurred without its consent. The absence of insurance shall not diminish any responsibility of either party\u2019s obligation to indemnify under the Agreement.<\/p> 11.4.\u00a0\u00a0\u00a0 Mitigations and Exceptions. In response to an actual or potential infringement Claim, Company may at its option: (a) procure rights for Client\u2019s continued use of the Services, (b) replace or modify the allegedly infringing portion of the Services to avoid infringement without reducing the Services\u2019 overall functionality, or if options (a) and (b) are not commercially practicable, (c) terminate the affected Order Form and refund to Client any prepaid, unused amounts for Fees for the terminated portion of the Services.<\/p> 11.5.\u00a0\u00a0\u00a0 Conditions. Company shall have no obligation or otherwise (including no indemnification obligations) with respect to any infringement or misappropriation Claims arising out of or resulting from (1) Client\u2019s modification of the Services or use of the Services in combination with any products, equipment, software, data, Third Party Content, or any content not provided by Company (2) Client\u2019s use of the Services other than the most recent release, (3) Client\u2019s unauthorized or non-compliant use of the Services, or (4) if Client settles or makes any admissions about a claim without Company\u2019s prior written consent.<\/p> 11.6.\u00a0\u00a0\u00a0 Exclusive remedy. This Section sets out Client\u2019s exclusive remedy and Company\u2019s entire liability regarding infringement of third-party intellectual property rights.<\/p> <\/p> 12.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 CONFIDENTIALITY.<\/p> 12.1.\u00a0\u00a0\u00a0 Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose any non-public information about the disclosing party\u2019s business or activities that is proprietary and confidential that is furnished to it by the disclosing party pursuant to the Agreement which (i) if disclosed in tangible form is marked \u201cConfidential\u201d or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively, \u201cConfidential Information\u201d).\u00a0 Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (i) was properly in receiving party\u2019s possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to receiving party by a third party without restriction; (iii) is, or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of the Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release.<\/p> 12.2.\u00a0\u00a0\u00a0 Return of Confidential Information.\u00a0 Upon termination of the Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to the disclosing party the original and all copies of all Confidential Information or, in lieu thereof, certify that all such Confidential Information has been destroyed; and (ii) destroy all notes and copies thereof made by receiving party containing any Confidential Information, provided that neither party shall be obligated to return or destroy Confidential Information to the extent necessary to fulfill its obligations and to enforce its rights under the Agreement or to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data; provided that any such Confidential Information so not returned or destroyed shall remain subject to the confidentiality and use covenants contained herein, without regard to Term.<\/p> 12.3.\u00a0\u00a0\u00a0 Confidentiality and Non-Use. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party shall use reasonable care to protect the Confidential Information using at least the same degree of care the receiving party uses to protect its own Confidential Information of a similar nature, but in no event with less than reasonable care. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Company the subcontractors referenced herein), provided it remains responsible for their compliance with this Section and they are bound to confidentiality obligations no less protective than this Section.<\/p> 12.4.\u00a0\u00a0\u00a0 Remedies. \u00a0Each party agrees that unauthorized use or disclosure of Confidential Information may cause substantial harm for which money damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, including an injunction (without the necessity of posting any bond or surety), in addition to other available remedies, for breach or threatened breach of this Section.<\/p> 12.5.\u00a0\u00a0\u00a0 Permitted Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Client Data and other Confidential Information, to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under the Agreement, provided such disclosure is only made to the receiving party\u2019s employees, agents, consultants, or representatives with a need to know such Confidential Information and who are bound by a confidentiality agreement or other duty of confidentiality no less restrictive than the duties in this Section; (ii) complying with applicable law, rules, or regulations; or (iii) submitting information to tax or other governmental authorities.\u00a0 If a party is required to make any disclosure of the disclosing party\u2019s Confidential Information in accordance with subsections (ii) and (iii) above, to the extent it can legally do so, it will give reasonable advance written notice to the disclosing party of such intended disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (such as seeking, or allowing the disclosing party a reasonable opportunity to seek,\u00a0 a protective orders or otherwise).<\/p> <\/p> 13.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 NON-SOLICITATION. During the Term of this Agreement and for a period of twelve (12) months thereafter, Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement on behalf of Company or its affiliates who is in the employment of the Company or its affiliates. Client agrees to pay Company as liquidated damages an amount equal to 50% of the annual salary of an employee solicited and hired from Company or its affiliates, unless the parties mutually agree to another amount.<\/p> <\/p> 14.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 PUBLICITY. Neither party may publicly announce this Agreement except with the other party\u2019s prior written consent or as required by law. However, Company may include Client and its trademarks in its customer lists and promotional materials but will cease use at Client\u2019s written request.<\/p> <\/p> 15.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 EQUIPMENT. Client shall purchase the necessary equipment in order to operate the Services (the \u201cEquipment\u201d) as set forth in the Order Form. For Equipment purchased from Company, title to such Equipment shall not pass to Client until all amounts for the purchase of such Equipment have been paid by Client to Company. For any Equipment purchased from a third party, Company does not make any warranty or guarantee with respect to the Equipment or the manufacturer thereof, including whether the Equipment is suitable for the Client. Company shall not be responsible if the Equipment is defective or unacceptable for any reason, including a failure in its performance, capacity or operations. To the extent permitted by law, any warranties or guarantees provided under Sales of Goods legislation are hereby excluded. To the extent permissible, Company shall assign the benefits of any Equipment warranties to Client for Equipment purchased from Company. Client will operate the Equipment at its own risk. Client shall defend, hold completely harmless and fully indemnify the Company from any claims and damages suffered by the Company, however caused, arising out of the use of the Equipment.<\/p> <\/p> 16.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 AI POWERED FEATURES AND SERVICES. By using the Services, Client acknowledges and agrees that Client and Client\u2019s end users may interact with AI-powered systems and that certain content, recommendations, or responses Client receives may be generated or influenced by AI rather than human operators.<\/p> AI Data Usage Rights; Training and Model Improvement<\/p> Client hereby grants Company a non\u2011exclusive, worldwide, transferable, sublicensable, royalty\u2011free, perpetual and irrevocable license to use, process, analyze, to host, store, reproduce, modify, create derivative works from, transmit, and display Client Data for the following purposes: (a) training, improving, and enhancing AI models, algorithms, and systems; (b) developing, testing, and deploying new features, products, and services; (c) conducting research and development; (d) performing analytics and generating insights; (e) benchmarking and competitive analysis; (f) quality assurance and performance optimization; (g) security monitoring and threat detection; (h) providing Services to Client and other customers; and (i) any other purpose that supports Company\u2019s business operations and service delivery. This data usage helps Company: <\/p> 17.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 VAT REGISTRATION REQUIREMENTS.<\/p> 17.1.\u00a0\u00a0\u00a0 Mauritius-Based Clients. If Client is based, incorporated, or otherwise resident in Mauritius, Client represents and warrants that it maintains a valid registration for Value Added Tax (VAT) with the Mauritius Revenue Authority or other applicable tax authority in Mauritius. Client shall maintain such VAT registration in good standing throughout the Term.<\/p> 17.2.\u00a0\u00a0\u00a0 South Africa-Based Clients. If Client is based, incorporated, or otherwise resident in South Africa, Client represents and warrants that it maintains a valid registration for Value Added Tax (VAT) with the South African Revenue Service or other applicable tax authority in South Africa. Client shall maintain such VAT registration in good standing throughout the Term.<\/p> 17.3.\u00a0\u00a0\u00a0 Proof of Registration. Upon request by Company, Client shall provide written evidence of its valid VAT registration, including but not limited to a VAT registration certificate or other official documentation issued by the applicable tax authority. Such documentation shall be provided within ten (10) business days of Company’s request.<\/p> 17.4.\u00a0\u00a0\u00a0 Maintenance of Registration. Client shall immediately notify Company in writing if:(a) Client’s VAT registration is suspended, revoked, or otherwise becomes invalid; or (b) Client receives any notice from the applicable tax authority regarding the status of its VAT registration.<\/p> <\/p> 18.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 PAYMENT CARD INDUSTRY DATA SECURITY STANDARD.<\/p> 18.1.\u00a0\u00a0\u00a0 Scope. This Section applies only to services that involve cardholder data and sensitive authentication data (collectively, \u201cAccount Data\u201d) or that could impact the security of the Client\u2019s Account Data.<\/p> 18.2.\u00a0\u00a0\u00a0 PCI Responsibility. Company acts as a service provider and acknowledges responsibility for the security of Account Data that it stores, processes, or transmits on behalf of Client, as well as for the security of systems and services under its control that could impact the security of the Client\u2019s Account Data.<\/p> 18.3.\u00a0\u00a0\u00a0 Shared Responsibility. Each party shall: a) be responsible for the security and compliance of their systems, services, and applications; b) maintain appropriate administrative, physical, and technical safeguards designed to protect Account Data and support applicable PCI DSS requirements; and c) promptly, and without undue delay, notify the other party upon becoming aware of a confirmed unauthorized access to Account Data .<\/p> <\/p> 19.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 GENERAL PROVISIONS.<\/p> 19.1.\u00a0\u00a0\u00a0 Relationship of the Parties. The parties are independent contractors, not agents, partners, or joint venturers.<\/p> 19.2.\u00a0\u00a0\u00a0 Assignment. Company and Client may not assign this Agreement without the prior written consent of the other party, except that either party may assign this Agreement upon notice in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party\u2019s permitted successors and assigns.<\/p> 19.3.\u00a0\u00a0\u00a0 Entire Agreement. This Agreement is the parties\u2019 entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements or communications regarding its subject matter, whether written or oral. In this Agreement, headings are for convenience only and \u201cincluding\u201d and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.<\/p> 19.4.\u00a0\u00a0\u00a0 Updates to Agreement and Services. Company reserves the right to revise and update the terms of this Agreement, to add or revise applicable terms of use for its website or the Services, or modify or discontinue the Services (or any part thereof) at any time with or without notice. All revisions and updates are effective immediately when posted to the Site as indicated in the \u201cLast Updated\u201d date above and apply to all access and use of the Services thereafter. Client agrees to review the latest version of the Agreement on the Site periodically to remain aware of any modifications to the Agreement. Any use of the Services after any revisions or updates will constitute acceptance by Client of such changes. We may update the functionality, content, method, provision or integration methods of Services from time-to-time and note the Service content is not necessarily complete or up-to-date. Any of the material on Services may be out of date at any given time, and we are under no obligation to update such material. Company shall not be liable to Client or to any third party for any modification, price change, suspension or discontinuation of the Services.<\/p> 19.5.\u00a0\u00a0\u00a0 Notices. Except as set out in this Agreement, notices to Client under this Agreement must be in writing and will be deemed received (a) immediately upon\u00a0 delivery as set forth below, (b) the business day following delivery via nationally-recognized overnight courier service, or (c) the third business day after it is sent to either the email address for Client that is on file with the Company, or by U.S. mail to the mailing address on the applicable Order Form, or the contact information associated with Client\u2019s account provided at registration, as applicable. Any notices to Company shall be deemed effective upon receipt and must be delivered by sending by (i) certified US mail, return receipt requested, or (ii) by overnight courier \u00a0to Legal Department \u2013 BlueFolder Software, 540 Devall Drive, Suite 301, Auburn AL 36832, Attn: General Counsel; in either case with an Email to: support@bluefolder.com<\/a> with another email cc to: Legal@fullsteam.com<\/a>. Client may update their contact information for notice by providing notice to Company. Company may also send operational notices to Client electronically, including through the Services.<\/p> 19.6.\u00a0\u00a0\u00a0 Equitable Relief. Client and Company agree that a breach of this Agreement may cause irreparable injury and damage, and that the non-breaching party will be entitled to injunctive and other equitable relief to prevent a breach, in addition to any other remedy to which the non-breaching party might be entitled.<\/p> 19.7.\u00a0\u00a0\u00a0 Governing Law and Jury Trial Waiver. The Agreement shall be governed by and construed in accordance with the laws of (i) the United States of America and the State of Alabama, if Client is domiciled or resident in the United States or anywhere other than Canada or Europe, (ii) Canada, and Province of Ontario, if Client is domiciled or resident in Canada, and (iii) France, if Client is domiciled or resident in a country in Europe, in each case excluding rules governing conflict of law and choice of law. The (A) state and federal courts located in Lee County, Alabama shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if United States and the State of Alabama laws apply, (B) the provincial and federal courts in in the City of Toronto, Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement if Canadian law applies, and (C) the courts in Paris, France shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement if French law applies. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such applicable courts. The parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to the Agreement nor to any dispute or transaction arising out of the Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, ARISING OUT OF THIS AGREEMENT.<\/p> 19.8.\u00a0\u00a0\u00a0 Dispute Resolution. In the event of a dispute by Client arising out of this Agreement, the parties agree that in good faith they will escalate the dispute to management in their respective organizations and agree to meet and confer at least once in an effort to resolve any such dispute within ninety (90) days of first written notice of the dispute.\u00a0 If such escalation and meet and confer attempts do not resolve the dispute, the parties agree to participate in at least one (1) day of non-binding mediation (costs to be split by the parties) with a mediator to which they jointly consent before proceeding filing a claim in court against the other party.<\/p> 19.9.\u00a0\u00a0\u00a0 Force Majeure. Company and Client are not liable for any delay or failure to perform any obligations under this Agreement (except for payment obligations) due to events beyond their reasonable control, such as a strike, blockade, war, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster provided, however, that in the event such period of extended delay exceeds ninety (90) days in respect of a Party, either Party may terminate this Agreement upon notice to the Party, as applicable or, in the case of Company, may invoke its right of suspension in accordance with the Agreement.<\/p> 19.10. Subcontractors. Company may use subcontractors and permit them to exercise Company\u2019s rights under the Agreement, but Company remains responsible for the subcontractors and the delivery of the Services to Client under this Agreement.<\/p> 19.11. Waivers and Severability. Waiver by a party of any breach of any provision of the Agreement must be in writing and signed by the waiving party\u2019s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held impermissible pursuant to applicable law, invalid by a court of competent jurisdiction, or otherwise illegal or unenforceable, it will be limited to the minimum extent necessary, so the rest of this Agreement remains in full force and effect to the fullest extent possible.<\/p> 19.12. Third Parties. Except as expressly provided herein, this Agreement does not create or establish any rights or beneficiaries for any person or entity that is not a party to this Agreement.<\/p> 19.13. Export. Client acknowledges that the Services may be subject to export control and economic sanctions restrictions imposed by the U.S. government and import restrictions by certain foreign governments (collectively \u201cTrade Laws\u201d). In using or accessing the Services, Client will not and will not allow any third party to use the Services in violation of any Trade Laws or remove or export from the U.S. or allow the export or re-export of any part of the Service or any direct product thereof to any location, party or end-use which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. Client represents and warrants that it and any of its Authorized Users: (i) are not listed on any U.S. government list of prohibited or restricted parties, including the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; (ii) are not an entity or person who is organized under the laws of, ordinarily resident in, or controlled by the government of, any country or region (1) that is subject to a U.S. government embargo or comprehensive sanction, (2) to which the U.S. has prohibited export transactions, or (3) that has been designated by the U.S. government as a \u201cterrorist supporting\u201d country; (iii) will not use the Services for the manufacture, design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity; and (iv) will not submit to the Service any information controlled under the U.S. International Traffic in Arms Regulations or listed on the Commerce Control List unless approved in writing by Company. Client will notify Company promptly if it or any Authorized User becomes subject to any order or restriction listed in this Section.<\/p> 19.14. Compliance with Laws. Client and Company will comply with all applicable laws in their access, use and provision of the Services.<\/p> 19.15. Open Source and Third-Party Software. The Services may incorporate third-party open-source software (\u201cOSS\u201d), as listed in the Documentation or provided by Company upon request. Client\u2019s internal use of the unmodified Services in the form provided and as authorized in this Agreement will not require Client to comply with the terms of OSS licenses.<\/p> 19.16. Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Service or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.<\/p> 19.17. Antibribery and Kickbacks. Client has not received or been offered any bribe, kickback, illegal or improper payment, gift, or thing of value from any Company personnel or agents in connection with the Agreement, other than reasonable gifts and entertainment provided in the ordinary course of business. If Client becomes aware of any violation of the above restriction, Client will promptly notify Company.<\/p> <\/p> 20. CLASS ACTION WAIVER.<\/p>
1.1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Grant of Access. Subject to the terms and conditions of this Agreement, the Company grants to Client a limited, non-exclusive, revocable, non-transferable, and non-sublicensable right for Client\u2019s authorized employees, agents, representatives, consultants, and contractors (\u201cAuthorized Users\u201d or \u201cUser\u201d) to access and use the Services described in an applicable Order Form during the Term of the Order Form for Client\u2019s internal business purposes only in accordance with the Documentation (as defined below) and, if the Client is a franchisor and Client is\u00a0 specifically permitted in the applicable Order Form, to sub-license the Services to its franchisees and their respective employees, contractors, agents, and affiliates (the \u201cFranchisees\u201d), for the same business and no other purpose whatsoever. The Services may allow Client to designate different types of Authorized Users, which may have different pricing, functionality, and use restrictions, as described on the Site, in the Documentation, or in the applicable Order Form. Each Authorized User must keep its login credentials confidential and not share them with anyone else. Client is responsible for its Authorized Users\u2019 compliance with this Agreement and actions taken through their accounts. This Agreement does not permit access to the Services by persons who are not Authorized Users.
1.2.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Reservation of Rights. Access to the Services is provided on a limited term and Services basis. All rights not specifically granted to Client hereunder are reserved by Company. Nothing herein shall prevent the Company from promoting, providing, licensing, sub-licensing or subcontracting the Services or providing the Services to other parties. Client shall promptly notify Company of any determination, discovery, or notification that any person or entity is or may be misusing or infringing the Services, including without limitation if it becomes aware of any compromise of its Authorized Users\u2019 login credentials.
1.3.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Professional Service Deliverables. All work product, customizations, improvements, and\/or enhancements to the Services performed by Company for Client pursuant to this Agreement or as identified on any separate Order Form executed by the parties (collectively, \u201cProfessional Service Deliverables\u201d), shall be owned exclusively by Company, unless otherwise provided in the corresponding Order Form. If, by operation of law or otherwise, any Professional Service Deliverables are not owned exclusively by Company immediately upon creation thereof, Client agrees to assign, and hereby irrevocably assigns, to the Company exclusive ownership of such Professional Service Deliverables and expressly disclaims any ownership rights thereto. Client will cooperate with the Company to confirm and\/or execute such assignments and Company\u2019s ownership of Professional Service Deliverables.
1.4.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Feedback. If Client provides the Company with feedback or suggestions regarding the Services (\u201cFeedback\u201d), Company may use Feedback without restriction or obligation. In addition, Client hereby irrevocably assigns ownership of any and all Feedback to Company and will cooperate with Company to confirm and\/or execute such assignments and Company ownership of Feedback.
1.5.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Anonymized Data.\u00a0 As between Client and Company, Company owns all rights, title, and interest in and to information which does not relate to an identified or identifiable natural person, or personal information rendered anonymous in such a manner that the natural person is not or no longer is identifiable (\u201cAnonymized Data\u201d).\u00a0 Accordingly, Company may, during the Term and thereafter, use, display, transmit, modify and prepare derivative works of Anonymized Data in any media for any lawful purpose, including maintaining and improving the Services.
1.6.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Third-Party Providers. Client\u2019s use of any platform, add-on, service, code (including open source) or product not provided by Company that Client chooses to integrate or enable for use with the Services (\u201cThird-Party Provider\u201d) shall be subject to the terms and conditions of Client\u2019s agreement with such third party, and Client is solely responsible for its compliance with such terms and conditions. Client acknowledges that Company does not control, is not responsible for, and will not be liable in any way for Client\u2019s use of any Third-Party Provider or any damage or loss resulting from Client\u2019s access to, use of, or interaction with, any Third-Party Providers. Client further acknowledges that any Client data loss, downtime or periodic unavailability of the Services due to Third-Party Providers\u2019 system maintenance, upgrades, or any other reason is outside of Company\u2019s control. The foregoing does not exclude or limit Client\u2019s right to pursue any remedies directly against a Third-Party Provider.
1.7.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Documentation. Subject to the terms and conditions of this Agreement, Company grants to Client a limited, non-exclusive, non-transferable, revocable, and non-sublicensable right and license to use and make copies of the usage guidelines and standard technical documentation for the Services as may be provided or made available online or in writing by the Company (\u201cDocumentation\u201d). Documentation is for Client\u2019s internal use only, for archival purposes, and for training and education of Authorized Users, provided that all proprietary notices of the Company and its licensors, if any, are reproduced and retained. Company reserves the right to modify the Documentation in Company\u2019s sole determination without prior notice to Client.<\/p>
5.1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Fees and Expenses. Client\u2019s use of the Services is subject to prompt payment of all fees and other amounts, including without limitation, expenses (\u201cFees\u201d) as described in each applicable Order Form. Any payments made via check may be subject to a $25 processing fee. Company may adjust Fees at any time with thirty (30) days\u2019 notice. Unless the Order Form provides otherwise, Company will send Client an invoice for all Fees owed on a monthly basis, and all Fees not subject to a good faith dispute are due upon invoice. \u00a0To the extent that Client disputes any invoice, Client must provide Company notice of such dispute in writing within ten (10) business days of the invoice date, or Client shall waive any claim with respect to such invoice. Late payments are subject to a service charge of 1.5% per month (18% per annum), or the maximum amount allowed by law, whichever is more. All Fees are nonrefundable and non-cancellable, except as expressly provided in this Agreement, and are exclusive of taxes\u00ad\u00ad. In the event of nonpayment or any shortfall in Fees paid, Client authorizes Company and its Affiliates (defined below) to increase fees, dues, assessments, and\/or debit any of Client\u2019s accounts with Company or Company\u2019s Affiliates, including those accounts associated with a payment processing agreement between Client and Affiliate. As used in this Section, \u201cAffiliate\u201d of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party \u201ccontrols\u201d a corporation or other entity if it or any combination of 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.<\/p>
6.1.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Client Contact. Client will cooperate with Company in all matters relating to the Services and appoint a primary contact who will have the authority to act on behalf of Client for matters pertaining to this Agreement. Client will provide access to Client\u2019s premises, or access to Client Data, reasonably needed for Company to perform the Services. If Client fails to do so, Company\u2019s obligation to provide the Services will be excused until access is provided, and the parties agree on an updated timeline.<\/p>
The Services may incorporate artificial intelligence (“AI”) technologies to enhance user experience and provide various features including, but not limited to, content generation, recommendations, automated responses, data analysis, and predictive functionality (collectively, “AI Features”). These AI Features utilize algorithms, large language models, and other automated systems to process information and generate outputs.<\/p>
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Improve the accuracy and relevance of AI-generated responses
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Enhance the performance and capabilities of Company\u2019s AI Features
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Develop new AI-powered functionalities
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Reduce errors and improve user experience
Client represents and warrants that it has obtained all rights, consents and permissions necessary to grant the foregoing license and to allow Company\u2019s processing of Client Data as described herein, including with respect to end users and any third parties.
AI Content Limitations and Disclaimers; Accuracy and Reliability
AI-generated content, recommendations, and outputs (collectively, \u201cAI Output\u201d) are provided “as is” and may contain inaccuracies, errors, or outdated information. Company makes no representations or warranties regarding the accuracy, completeness, reliability, or suitability of any AI-Output for any particular purpose.
Client is solely responsible for determining whether the AI Outputs are appropriate for Client\u2019s use case.\u00a0 Client shall implement appropriate human review and validation prior to relying on AI Outputs.
Client shall not (and shall ensure End Users do not): (i) use the AI Features for any unlawful, harmful, fraudulent, infringing, defamatory or misleading purpose; (ii) input or upload any: government\u2011classified information; financial account numbers; payment card data; health or biometric data; data subject to HIPAA, GLBA, FERPA or ITAR; special categories of personal data under GDPR; children\u2019s data under COPPA; precise geolocation; credentials; or any personal data where Client lacks a lawful basis and required notices\/consents unless expressly permitted in writing by Company and covered by a separate data protection agreement; (iii) attempt to extract source code, models, weights or training data; (iv) use the Services to develop, train or improve models that compete with Company; (v) circumvent usage limits or safety controls; (vi) conduct or publish benchmarks or performance tests except with Company\u2019s prior written consent; or (vii) use the AI Features in hazardous environments or other high\u2011risk activities requiring fail\u2011safe performance (including, without limitation, life support, medical diagnosis or treatment, emergency services, autonomous vehicles, weapons, aviation, nuclear facilities or critical infrastructure).
Client acknowledges that AI Features may:
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Reflect biases present in training data or algorithms
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Produce outputs that are inappropriate, offensive, or harmful
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Generate content that infringes on third-party rights
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Fail to understand context, nuance, or specialized requirements
\u00b7\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Produce inconsistent results for similar inputs
No Guarantee of Performance. Company does not guarantee that AI Features will meet Client\u2019s specific requirements, operate without interruption, or be free from errors. AI performance may vary based on factors including input quality, system load, and the inherent limitations of current AI technology.
Changes to AI Features. Company reserves the right to modify, update, or discontinue AI Features at any time.<\/p>