(Last revision: MAY 26, 2017)
This Tact.ai Technologies Service Agreement (this “Agreement”) contains the terms and conditions that govern the access and use of the Tact.ai Service (as defined below) and is entered into by and between Tact.ai Technologies, Inc. (Tact.ai) and the customer (“Customer”) identified in the corresponding Tact.ai Service order (“Order”) referencing this Agreement. Tact.ai and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.” This Agreement is effective and Customer agrees to be bound by its terms when Customer either first accesses the Tact.ai Service or upon the first Order Effective Date (defined below), whichever occurs first (“Agreement Effective Date”). If the person entering into this Agreement is doing so on behalf of a legal entity, such person represents that it has the legal authority to bind such legal entity to this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Section 1. Definitions
When used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:
“Account(s)” means all User content account(s) created by the User for itself or on behalf of Customer) within the Tact.ai Service.
“Beta Services” means Tact.ai Services or Tact.ai Software that are not generally available to customers.
“Tact.ai Service” or “Service” means the hosted solution provided by Tact.ai that permits User access to online content storage, sharing and processing.
“Tact.ai Software” means software that allows a User to use certain functionality in connection with certain features of the Tact.ai Service that is provided by Tact.ai either for installation on a Customer’s or a User’s device or that is otherwise accessed by Users from the Customer’s or User’s software, hardware or other devices.
“Content” means electronic data and information submitted by Customer to the Tact.ai Services or collected and processed by Customer using the Tact.ai Services “Customer Domain” means all email and/or web addresses registered, owned or controlled by Customer, its affiliates and/or agents and used by one or more Users to register an Account.
“Fee(s)” means the amounts payable to Tact.ai as specified in the applicable Order.
"Malware" means any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros.
“Order” means a Tact.ai quote order or other ordering document agreed to in writing by the Parties under this Agreement or by Customer which is accepted by Tact.ai.
“Subscription Period” means the time commencing on the Order Effective Date and continuing for the period specified in the applicable Order, or if no such period is specified, a 1 year period.
“Term” has the meaning set forth in Section 10.
“User(s)” means, collectively, any person who is permitted to access, store, retrieve or manage Content in any Account.
“User Guide” means Tact.ai’s, if any, then current published written or electronic documentation specifying the functionality of the Tact.ai Service and made generally available by Tact.ai to its customers or its users.
Section 2. Access and Use of the Tact.ai Service
2.1 Access Grant. Subject to Customer’s continued compliance with the obligations of this Agreement, including the timely payment of all applicable Fees, Tact.ai hereby grants Customer a non-exclusive, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the Tact.ai Services and Tact.ai Software and the right during the Term to allow Users to store, retrieve, and share Content through the Tact.ai Service in accordance with the User Guide, if any, solely through any Account registered to Customer or Users. Customer shall be responsible for the compliance by each of its Users with the terms and conditions of this Agreement.
2.2 Service Plan Upgrade Option. During the Term, Tact.ai may from time to time provide Customer with the right to obtain access for additional Users, or features and functionality available in the next level of the Tact.ai Service plan i.e. from Tact.ai Business to Tact.ai Enterprise (“Tact.ai Service Plan Upgrade”) at pricing and terms set forth in the documentation pertaining to such rights or as otherwise is mutually agreed upon by the Parties. Fees for such Tact.ai Service Plan Upgrade will be invoiced to Customer, prorated on an annual basis to be coterminous with the applicable Order.
2.3 Restrictions on Use of the Tact.ai Service. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any User or otherwise used through its Account. Customer agrees not to use or permit the use of the Tact.ai Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the Tact.ai Service or interfere in any way with the use or enjoyment of the Tact.ai Service by others; (d) to introduce any Malware or other malicious activity in Customer’s or an User’s use of the Tact.ai Service; (e) in violation of any U.S. denied party-list, embargoed country restriction, export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offense.
2.4 Suspension of Service. Tact.ai may at any time and without notice suspend any unpaid User’s use of the Tact.ai Service and/or remove or disable any Content for any reason with or without notice. Tact.ai may at any time suspend any paid User’s use of the Tact.ai Service and/or remove or disable any Content as to which Tact.ai reasonably and in good faith believes is in violation of this Agreement. Tact.ai agrees to use commercially reasonable efforts to attempt to notify any paid User of any such suspension or disablement before its implementation unless Tact.ai determines in its sole discretion that such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the Tact.ai Service or any third party. Tact.ai will have no liability for any harm or damage arising out of or in connection with suspension or disablement of any Service and/or Content.
2.5 Beta Services. From time to time, Tact.ai may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial at Customer's sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available for subscription. We may discontinue Beta Services at any time at Tact.ai's sole discretion and may never make them generally available for subscription. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Section 3. Non-Tact.ai Applications and Services.
Tact.ai makes third-party applications, which are separately licensed by their provider, available to Customer for use in connection with the Tact.ai Service (“Third-party Products”). Third-party Products may be subject to additional terms and conditions as set forth in the purchaser or other documentation therefor. Tact.ai makes no representations or warranties of any kind and assumes no liability whatsoever for Customer’s use of such Third-party Products.
Section 4. Content Security; Data Privacy
4.1 Security. Without limiting Section7.4 (Disclaimer of Warranties) or Customer’s obligations under Section 5 or this Section 4, Tact.ai will implement commercially reasonable administrative, physical, and technical measures including disaster recovery procedures designed to secure the Content against accidental or unlawful loss, access or disclosure. A detailed version of our security policy is available at the following link: http://tact.ai/privacy/
Section 5. Customer Responsibilities
5.1 Content. Customer will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with the this Agreement and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content; (d) promptly handle and resolve any notices sent to Customer by any person claiming that any Content violates any person’s rights, including take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (e) maintain appropriate security, and protection of the devices accessing the Tact.ai Service. Tact.ai has no liability to Customer or any third party for any reason as a result of (i) any unauthorized disclosure or access to Customer’s Account or Content as a result of Customer’s or a User’s misuse of the Tact.ai Service or loss or theft of any User password or username; or (ii) any deletion, destruction, damage or loss of Content caused by or at the direction of Customer or a User.
5.2 Notification of Unauthorized Use. Customer will immediately notify Tact.ai in writing of any unauthorized use of any Account, Content or the Tact.ai Service that comes to Customer’s attention. In the event of any such unauthorized use by any third party that obtained access to the Tact.ai Service directly or indirectly through Customer or through any User, Customer will take all steps necessary to terminate such unauthorized use and will provide Tact.ai with such cooperation and assistance related to any such unauthorized use as Tact.ai may reasonably request.
5.3 Account Registration. In order to access certain features of the Services, you must register to create an account ("Account") and become a User. You may register directly via the Application. During the registration process, you will be required to provide certain information and you will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Tact.ai reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions.
Section 6. Support and Service Level Commitments.
6.1 Support Services. Subject to payment of the corresponding Fees, Tact.ai will provide the support services (“Support Services”) specified in the applicable Order and as further described in Exhibit A (Service Level Commitments and Support Services). Upon Tact.ai’s request, Customer will provide Tact.ai with remote access to Customer’s computer systems as reasonably required for Tact.ai solely to perform any Support Services and other obligations provided for under this Agreement, such as by VPN connection or other means.
6.2 Service Level Commitments. Tact.ai will use commercially reasonable efforts to meet the Service Level Commitments for the Tact.ai Service as specified on Exhibit A subject to the level subscribed to and paid for by the Customer under the applicable Order. The sole and exclusive remedy for any breach of any Service Level Commitment is set forth in Exhibit A, provided however that Customer may terminate this Agreement subject to the notice and cure provisions of Section 10.3 (Termination for Cause) in which case Customer will be entitled to a pro-rated refund of the Fees paid to Tact.ai for the remainder of the corresponding Subscription Period.
Section 7. Warranty and Disclaimer
7.1 Tact.ai Service Warranty. Tact.ai warrants that while the corresponding paid- for Subscription Period is in effect, that the Tact.ai Service will perform substantially in accordance with the functions specified in the User Guide under normal use and circumstances. Subject to the notice and cure provisions of Section 10.3 (Termination for Cause), Customer’s sole and exclusive remedy and Tact.ai’s entire liability for a breach of this warranty shall be for Tact.ai to use commercially reasonable efforts to modify the Service to substantially achieve the functionality described in the User Guide, and if Tact.ai is unable to restore such functionality, Customer shall be entitled to terminate the applicable Order and receive a pro-rated refund of the subscription fees paid to Tact.ai for the corresponding remaining portion of the Subscription Period. The warranties set forth herein are made to and for the benefit of Customer only. SLC Credits due to Customer, if any, will be provided pursuant to the terms of Exhibit A.
7.2 Mutual Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.3 Customer Warranties. Customer represents and warrants to Tact.ai that (a) Customer or its licensors own all right, title and interest in and to the Content; (b) Customer has all rights in the Content to grant the rights to Tact.ai contemplated by this Agreement; and (c) none of the Content will violate the terms of Section 2.3 (Restriction on the use of the Tact.ai Service).
7.4 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY (AND EACH PARTY SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE Tact.ai SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
Section 8. Proprietary Rights
8.1 Content Ownership by Customer. As between Customer and Tact.ai, Customer or its licensors own all right, title and interest in and to the Content. Customer hereby grants Tact.ai the right to transmit, use and disclose the Content solely to provide the Tact.ai Service to Customer or any User or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which Tact.ai believes in the good faith requires Tact.ai to disclose information to assist in preventing the death or serious bodily injury of any person.
8.2 Ownership of Tact.ai Service by Tact.ai. As between Tact.ai and Customer, Tact.ai or its licensors own and reserve all right, title and interest in and to the Tact.ai marks, the Tact.ai Service and all hardware, software and other items used to provide the Tact.ai Service, other than the access rights explicitly granted to Customer in Section 2.1. No title to or ownership of any proprietary rights related to the Tact.ai Service is transferred to Customer or any End User pursuant to this Agreement or any transaction contemplated by this Agreement. All rights not explicitly granted to Customer are reserved by Tact.ai. Tact.ai reserves the right, in its sole discretion, to change and/or require you to change your Tact.ai Service Account ID you may obtain through the Tact.ai Service. In the event that Customer makes suggestions, improvements or modifications to Tact.ai regarding any features, functionality or performance that Tact.ai adopts for any of its products including the Tact.ai Service or Tact.ai Software, such features, functionality or performance shall be deemed to be automatically assigned under this Agreement to, and shall become the sole and exclusive property of Tact.ai.
Section 9. Fees and Payment
9.1 Fees. Customer agrees to pay all Fees set forth on all Orders under this Agreement. In the event that the Parties mutually agree in writing to any extension of a Subscription Period or the provisioning of a Tact.ai Service Plan Upgrade, Customer will pay Tact.ai the then-current list price for such extension or Tact.ai Service Plan Upgrade, unless otherwise set forth in the applicable Order. Subject to any credits or refunds applicable to any Service Level Commitments hereunder, if any, all Fees are nonrefundable. All Fees and other amounts specified in this Agreement are payable in United States Dollars. After the Initial Term, Tact.ai may increase the Fees it charges for the Tact.ai Service. Any increase in the Fees will take effect at the beginning of Customer’s next Subscription Period, or at such later date as may be specified in the applicable Order. With respect to any Tact.ai Service or Tact.ai Software that is offered to a User on an unpaid basis, such Tact.ai Service or Tact.ai Software may be used only for the period specified in the Tact.ai documentation applicable to such unpaid use (in no event will such period exceed six (6) months), and at the end of such period, such User’s right to use the Tact.ai Service or Tact.ai Software shall terminate unless Customer pays the applicable fee to convert such User to a paid User.
9.2 Invoicing and Payment Terms. Unless otherwise specified in the applicable Order, Customer will pay all Fees within 30 days of the date of the applicable invoice issued by Tact.ai. In the event Customer disputes any invoiced Fees, Customer will provide written notice of the disputed amount within 30 days after receiving such invoice and timely pay any undisputed portion of such invoice. The Parties will cooperate in good faith to resolve any disputed invoice or portion thereof within 30 days of notice of dispute. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Customer will promptly reimburse Tact.ai for any cost or expense incurred in connection with any collection efforts undertaken by Tact.ai in connection with any past due amount owed under this Agreement. At Tact.ai’s discretion, past due amounts may accrue a late fee equal to the lesser of 1.5% per month, or the maximum amount allowed by applicable law.
9.3 Taxes. Fees are exclusive of Taxes and, Customer will promptly pay or reimburse Tact.ai for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use and other taxes (other than taxes on Tact.ai’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority. Customer hereby confirms that Tact.ai can rely on the ship-to name and address set forth in the Order(s) Customer places directly with Tact.ai as being the place of supply for sales tax purposes. If Customer is legally entitled to an exemption from the payment of any Taxes, Customer will promptly provide Tact.ai with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. Unless otherwise prohibited by law, Tact.ai will apply the benefits of any requested tax exemption to charges occurring under Customer’s Account after the date Tact.ai receives and reasonably processes such tax exemption certificates.
Section 10. Term and Termination
10.1 Term of Agreement. This Agreement will commence on the Agreement Effective Date and will remain in effect for the duration of the Subscription Period specified in the last remaining Order(s) (“Term”) or is otherwise terminated as provided for in Section 10.3 herein below. Each Order will be in effect for a period of 1 year from the Order Effective Date unless otherwise agreed in writing by the Parties or unless otherwise terminated in accordance with this Agreement.
10.2 Order Renewal. Unless the Agreement is terminated as provided for herein, the Order(s) under this Agreement will automatically renew for additional 1 year periods subject to payment of the applicable Fees for such renewal period. Either Party may terminate this Agreement effective as of the end of the then-current Subscription Period, as applicable, by providing the other Party with written notice at least 30 days prior to the end of the then-current Subscription Period of such Order(s). For the avoidance of doubt, any discounts offered by Tact.ai to Customer during a prior Subscription Period will not apply during any new or renewal Subscription Period unless specifically agreed-to in writing by the Parties.
10.3 Termination for Cause. Either Party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured after the expiration of such period; or (b) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Any failure by Customer to timely pay Fees owing hereunder or to comply with Sections 2, 4.1 or 5 will constitute a material breach of this Agreement.
10.4 Post-Termination Obligations. Upon termination or expiration of this Agreement for any reason, (a) Customer will have no further rights to the Tact.ai Service hereunder; (b)Customer will, within 5 days of such termination or expiration, destroy all copies of the Tact.ai Software, the User Guide, if any, and Confidential Information of Tact.ai, including any copies of the User Guide, if any, in written or electronic form and any Tact.ai Software stored on Customer’s servers or other systems; and (c) if requested by Tact.ai, Customer will promptly provide to Tact.ai a written certification signed by an authorized representative certifying that all copies of the Tact.ai Software, the User Guide, if any, and Confidential Information of Tact.ai have been destroyed. For 30 days following the expiration of the Termination of the Agreement and/or applicable Subscription Period, and subject to Customer’s prior written request, Tact.ai will grant Customer limited access to the Tact.ai Service solely for purposes of Customer’s retrieval of the Content. After such 30 day period, Tact.ai will have no obligation to maintain the Content and will delete the Content unless legally prohibited.
10.5 Surviving Provisions. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1, 2.3, 5.1, 7.4, 8, 9, 10.4, 11, 12, 13, and 14.
Section 11. Indemnification
11.1 Indemnification by Tact.ai. Tact.ai will defend Customer against any third party claim that the Tact.ai Service infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer”), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Tact.ai will have no liability to Customer under this Section 11.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the Tact.ai Service by Customer; (b) use of the Tact.ai Service in combination with any other software or equipment not supported in the User Guide; or (c) any modification or alteration of the Tact.ai Service by anyone other than Tact.ai without the written approval of Tact.ai. In the event of a Claim Against Customer pursuant to this Section 11.1, Tact.ai may (at Tact.ai’s option and expense): (i) obtain for Customer the right to continue using the Tact.ai Service; (ii) modify the Tact.ai Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Tact.ai in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to Tact.ai for the corresponding unused period of the Tact.ai Service.
11.2 Indemnification by Customer. Customer will defend Tact.ai against any third party claim: (i) that any Content, or Customer’s use of the Tact.ai Service in breach of this Agreement, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such infringement or misappropriation is not the result of Tact.ai’s actions); or (ii) relating to any Content or Customer’s use of the Tact.ai Service in violation of Section 2.3 (Restrictions on the Use of the Tact.ai Service). Customer will, with respect to any claim Against Tact.ai, indemnify Tact.ai for the resulting costs and damages finally awarded against Tact.ai to such third party by a court of competent jurisdiction or agreed to in settlement.
11.3 Indemnification Process. As a condition of receiving an indemnification under this Agreement, the party seeking indemnification hereunder (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim); and (iii) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
11.4 Exclusive Remedy. This Section 11 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other party for any type of claim under this Section 11. Notwithstanding the foregoing, Tact.ai will have the right to terminate Customer's right to use the Tact.ai Service pursuant to Section 10.3.
Section 12. Limitation of Liability
12.1 Limitation of Liability. IN NO EVENT WILL TACT.AI'S TOTAL AND CUMULATIVE LIABILITY OR THAT OF ITS DISTRIBUTORS AND RESELLERS, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO TACT.AI FOR THE SPECIFIC USE OF THE TACT.AI SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
12.2 Disclaimer of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR THEIR DISTRIBUTORS AND RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Section 13. Confidentiality
13.1 Definition. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (a) the Tact.ai Service; (b) Content; (c) the terms of this Agreement including all Orders and pricing thereto, and (d) the Disclosing Party’s strategic roadmaps, product plans, product designs and architecture, technology and technical information, security audit reviews, business and marketing plans, and business processes. Confidential Information other than Content, will not include information that as shown by the Receiving Party’s records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv)was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
13.2 Protection. The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the Parties’ ongoing business relationship.
13.3 Permitted Disclosure. Neither Party will disclose Confidential Information in violation of the terms and conditions of this Agreement, to any third party, without the prior written consent of the other Party. Notwithstanding the foregoing each Party may disclose Confidential Information, including the terms and conditions of this Agreement, without the prior written consent of the other Party: (a) as compelled by law provided that to the extent legally permissible the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure; (b) in confidence, to legal counsel, accountants, banks, and financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; (d) the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (e) or to respond to an emergency which Tact.ai believes in the good faith requires Tact.ai to disclose information to assist in preventing the death or serious bodily injury of any person.
Section 14. Miscellaneous
14.1 Contractual Relationship. The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.
14.2 Brand Marks Limitation. Any use of a party's brand marks will inure to the benefit of the party holding Intellectual Property Rights in those brand marks. A party may revoke the other party's right to use its brand marks pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
14.3 Notices. Any notice or other communication under this Agreement given by any Party to any other Party will be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to Tact.ai, when sent via email to firstname.lastname@example.org, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Tact.ai Technologies, Inc., 2400 Broadway St, Redwood City, CA 94063 U.S.A. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
14.4 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
14.5 Assignment. Customer may not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of Tact.ai. Tact.ai may assign this Agreement without obtaining Customer’s consent: (a) to an affiliate of Tact.ai; or (b) in connection with a successor in interest in a merger, reorganization or a sale of all or substantially all of the assets of Tact.ai. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
14.6 Integration; Order of Precedence. This Agreement, together with any Orders and the Exhibits, constitutes the entire agreement, and supersedes any and all prior agreements, between the Parties with regard to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both Parties hereto. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by Customer, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with this Agreement.
14.7 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
14.8 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Redwood City, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
14.9 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
EXHIBIT A SERVICE LEVEL COMMITMENTS AND SUPPORT SERVICES FOR TACT PREMIUM
Commencing on the effective date of the applicable Subscription Period, Tact.ai will provide to Customer the Service Level Commitments and Support Services defined herein as specified in the applicable Order. In the event of a conflict between the terms of the Agreement and the terms of this Exhibit A, the terms of this Exhibit A shall prevail.
1. Exhibit Definitions
“Customer Core Group” means Customer’s employees who have been trained on the Tact.ai Service and who are familiar with Customer’s business practices. “Customer User Community” means all Customer’s Users. “Downtime" means any period during which the Customer in unable to access or use the Tact.ai Service because of an Issue, excluding Scheduled Downtime. “Issue” means a single, reproducible issue or problem materially or significantly affecting the functionality of the Tact.ai Service. "Scheduled Downtime” means a time period for Downtime identified in advance by Tact.ai. “SLC Credit” means the credit identified in Section 3 below, which may be offered to Customer in the event Customer reports an Uptime Percentage of less than 99.9% where Customer has paid Tact.ai for the applicable Account Licenses during the Subscription Period and has purchased Premiere Support. "Uptime Percentage" means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes in such calendar month. “User Administration Support” means issues that impact the usability of the Tact.ai Service and are addressable through the adjustment of User access privileges, processes or procedures.
2. Scope of Service Level Commitments.
Tact.ai's obligations do not extend to Issues or errors caused by: (a) Third-party Products or other third-party hardware, software or services; (b) Use of the Tact.ai Service in violation of the terms of the Agreement; (c) Use of the Tact.ai Service other than in accordance with any user Documentation or the reasonable instructions of Tact.ai; (d) Ongoing test or training instances of the Tact.ai Service provided to Customer; or (e) Services, circumstances or events beyond the reasonable control of Tact.ai, including, without limitation, any Force Majeure events, the performance and/or availability of local ISPs employed by Customer, or any network or service beyond the demarcation or control of Tact.ai.
3. Scheduled Downtime and Guaranteed Up Times
Tact.ai will use commercially reasonable efforts to provide prior notice before implementing any Scheduled Downtime wherever practical and as provided to Tact.ai’s customer base generally. Subject to Customer’s purchase of Premier Support, Tact.ai will provide Customer with the SLC Credits identified below during the applicable Subscription Period upon Customer’s written request. The SLC Credit will be equal to the credit percentage identified in the table SLC Credits table below multiplied by the Customer’s fees paid to Tact.ai for the Tact.ai Service that are attributable to the corresponding month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). Customer will submit a written SLC Credit request to Tact.ai within 15 days of such Downtime. The SLC Credit is Customer's sole and exclusive remedy for any failure by Tact.ai to meet any support obligations as identified herein.
SLC Credits Table
|Uptime Percentage||SLC Credit Percentage|
|99.9% or more||0%|
|Less than 99.9% but 99.5% or more||5%|
|Less than 99.5% but more than 99.0%||10%|
|Less than 99.0%||20%|
4. Availability of SLC Credits
Customers who are past due on any payments owed to Tact.ai are not eligible to receive SLC Credits. Tact.ai will issue SLC Credits, as determined in its sole discretion, either on future billing cycles or as a refund against annual fees paid. In order to receive any SLC Credit, Customer must notify Tact.ai in writing within 15 days from the time Customer becomes eligible to receive a SLC Credit. Failure to comply with this requirement will forfeit Customer's right to receive a SLC Credit. In no event will the total amount of SLC Credits if any, exceed the fees paid by Customer for the corresponding month.
5. Support Services
Tact.ai will provide support services to assist Customer in resolving Issues (“Support Services”). Support Services do not include (a) physical installation of the Tact.ai Software and any Documentation; (b) visits to Customer’s site; (c) any professional services (“Professional Services”) associated with the Tact.ai Service, including, without limitation, any custom development, data modeling, training and knowledge transfer; or (d) the set-up, configuration and use of the Tact.ai Service. Tact.ai’s performance of Professional Services if any, will be subject to the Parties’ execution of a Professional Services addendum (“PSO Addendum”) to this Agreement and payment of the applicable Fees. The Customer will ensure that the Customer User Community addresses all Issues through the Customer Core Group. The Customer Core Group will: a. b. c. d. e.
6. Response Times
Tact.ai will provide an acknowledgement of a reported Issue to Customer and respond within the target time frames specified below (“Response”). The Response will include the priority assigned to the case, any actions taken, immediate resolution if available, and any escalation plans.
|Number of incidents||Unlimited|
|Response Time||2 business days|
|Support Hours||Monday - Friday 9am - 6pm PST|
Resolution to an Issue is subject to verification and reproduction of the Issue by Tact.ai, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by Tact.ai, or a computer or operating routine. Once Tact.ai has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted. Resolution to an Issue is subject to verification and reproduction of the Issue by Tact.ai, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by Tact.ai, or a computer or operating routine. Once Tact.ai has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted.