SECOND CHAIR.AI, INC. TERMS AND CONDITIONS
These terms and conditions (the “Terms and Conditions”) of Second Chair.AI, Inc., a Delaware corporation (“Provider”), shall be deemed incorporated into and made a part of each Sales Order and shall not be modified, supplemented, or superseded by any terms or conditions in any Sales Order except as expressly agreed to in a written agreement by and between Provider and Customer (defined below). Provider and Customer are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”
1. Definitions. All capitalized terms used but not defined elsewhere in these Terms and Conditions or the Sales Order shall have the meanings given to such terms in this Section 1.
“Annual Deposition Allotment” means the number of Depositions for which Customer may use the Services during the then-current term for which Customer will not be charged Excess Deposition Fees.
“Annual Deposition Subscription Fee” means the dollar amount set forth on the Sales Order that Customer pays to Provider for the Annual Deposition Allotment in the then-current term.
"Authorized Users" means Customer's employees (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Business Days” means Monday – Friday and excludes holidays and weekends.
“Business Hours” means 9 a.m. to 5 p.m. on Business Days.
“Commencement Date” means the date on which a Renewal Term commences.
"Customer" means the Person identified as the Customer on the Sales Order.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer’s Payment Method” means Customer’s credit card, debit card, or bank account that Customer has provided to Provider and agreed can be automatically billed by Provider pursuant to the terms of this Agreement.
“Deposition” shall be interpreted as broadly as possible and means any individually identifiable deposition (whether related to litigation, arbitration, or mediation, or other matter of any kind) or in-person interview or meeting for which the Customer utilizes the Provider Systems and Services.
"Documentation" means any manuals, instructions, or other documents or materials that Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"Effective Date" means the date the Initial Term begins as set forth in the Sales Order.
“Excess Deposition Fee” means the amount Provider charges for each Excess Deposition as determined by Customer’s deposition tier and outlined in the Pricing Sheet attached hereto as Exhibit A.
“Excess User Fees” means the fee(s) charged to Customer for exceeding the Initial User Count as outlined in the Pricing Sheet on Exhibit A. The Excess User Fees will be calculated on a pro-rata basis by multiplying the User Fee applicable to each Authorized User in excess of the Initial User Count by a fraction where the numerator is the number of days remaining in the then-current term (Initial Term or Renewal Term) (as of the date such Authorized User begins using the Services) and the denominator is the total number of days in the then-current term.
"Fees" is a collective reference to the Implementation Fee, the Annual Deposition Subscription Fee, the Excess User Fees, and the Excess Deposition Fees, and any and all other charges, expenses, or costs identified in this Definitions Exhibit, the Sales Order, and/or the Terms and Conditions.
“Initial User Count” means the initial number of Authorized Users outlined in the Sales Order.
“Implementation Fee” means the amount outlined on the Sales Order that Provider charges to set up Customer with the Services.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Provider IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), applications, and networks, whether operated directly by Provider or through the use of third-party services.
"Resultant Data" means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
“Sales Order” means the sales order form signed by Customer outlining key pricing and other terms.
“User Fees” means the fee(s) Provider charges for each Authorized User to utilize the Provider Systems and Services. The User Fees are identified on the Sales Order.
2. Services.
2.1 Provision of Access. Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 14.9) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
2.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.9) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
2.3 Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
2.4 Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
2.5 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of the Services to its customers; (ii) the competitive strength of or market for the Services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.
2.6 Suspension or Termination of Services. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; and (iii) Provider believes, in its sole discretion, that Customer or any Authorized User has failed to comply with any material terms of this Agreement (including any failure to pay an amount when due under this Agreement) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
2.7 Service Usage and Data Storage. The Sales Order sets forth Fees for a certain number of (i) Depositions for which Customer may use the Services, and (ii) designated levels of Authorized Users (each a “Service Allocation”). If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Provider the applicable excess fees set forth on the Sales Order or these Terms and Conditions. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that:
(a) Provider has no obligation to permit Customer to exceed its then-current Service Allocation; and
(b) Customer is not entitled to any Service Level Credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Services fail to meet the Availability Requirement during such period.
3. Customer Obligations.
3.1 Customer Systems and Cooperation. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
3.2 Non-Solicitation. During the Term and for two years after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve months employed or otherwise engaged by Provider.
4. Service Levels and Credits.
4.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available for at least ninety percent (90%) of the Business Hours as measured over the course of each calendar year during the Term (each such calendar year, a "Service Period"), excluding unavailability as a result of any of the Exceptions described below in this Section (the "Availability Requirement"). "Service Level Failure" means a material failure of the Services to meet the Availability Requirement. "Available" means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are "Exceptions" to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that are due, in whole or in part, to any: (a) act or omission of Customer or any Authorized User, or use of the Services by Customer or any Authorized User that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer's or its Authorized User's Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services for data security concerns.
4.2 Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer equal to the (A) quotient of (i) the amount of time of the Service Level Failure divided by (ii) the total Business Hours in the Service Period multiplied by (B) the Fees for the Service Period in which the Service Level Failure occurred (each a "Service Credit"), subject to the following:
(a) Provider has no obligation to issue any Service Credit unless: (i) Customer reports the Service Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within twenty-four (24) hours of the Service Level Failure; and
(b) in no event will a Service Level Credit for any Service Period exceed five percent (5%) of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
Any Service Credit payable to Customer under this Agreement will be issued to Customer in the calendar month following the Service Period in which the Service Level Failure occurred. This Section 4.2 sets forth Provider's sole obligation and liability and Customer's sole remedy for any Service Level Failure.
4.3 Scheduled Downtime. Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services, and (b) give Customer at least twenty-four (24) hours prior notice of all scheduled outages of the Services ("Scheduled Downtime").
4.4 Service Support. The Services include Provider's standard customer support services ("Support Services") which will be available to Customer from 9 a.m. to 5 p.m. on Business Days. Provider may amend its Support Services from time to time in its sole discretion. Customer may purchase enhanced support services separately at Provider's then-current rates.
5. Data Backup. The Provider Systems are programmed to perform routine data backups pursuant to Provider’s internal backup policies. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Provider's then most current backup of such Customer Data.
6. Security. Provider will employ commercially reasonable security measures to protect the Customer Data stored on the Provider Systems.
7. Fees and Payment.
7.1 Payment of Annual Deposition Subscription Fee. Per the terms of Customer’s Sales Order, Provider will either automatically bill Customer’s Payment Method (a) in the amount of the Annual Deposition Subscription Fee in equal monthly installments during the Initial Term and each subsequent Renewal Term, or (b) in the amount of the Annual Deposition Subscription Fee in advance on the Effective Date and on the Commencement Date of each Renewal Term.
7.2 Payment for Implementation Fee. Provider will automatically bill Customer’s Payment Method in the amount of the Implementation Fee on the Effective Date.
7.3 Excess User Fees. If the number of Customer’s Authorized Users exceeds the Initial User Count (each, an “Excess User” and collectively, the “Excess Users”) at any time during the Term, Provider will (i) send Customer written notice of such Excess User(s), and (ii) automatically bill Customer’s Payment Method in advance in the amount of the Excess User Fees due for the remainder of the then-current term (Initial Term or Renewal Term). Once Customer incurs Excess User Fees for an Excess User, Customer will not thereafter be entitled to a refund of such Excess User Fees—regardless of whether such Excess User ceases to utilize the Provider Systems or Services during the then-current term. On the Commencement Date of each Renewal Term, Provider will re-determine the amount of the Excess Users, if any, and bill Customer’s Payment Method in advance for the Excess User Fees associated with such Excess Users.
7.4 Excess Deposition Fees. If the number of Customer’s Depositions exceeds the then-current Annual Deposition Allotment at any time during the Term (each, an “Excess Deposition”), Provider will (i) send Customer written notice that Customer has exceeded its Annual Deposition Allotment, (ii) automatically bill (on a monthly basis) Customer’s Payment Method in the amount of the Excess Deposition Fee for each Excess Deposition used in the previous month, and (iii) send or otherwise provide Customer with a monthly statement of the Excess Deposition Fees charged to Customer’s Payment Method in each month after Customer exceeds the Annual Deposition Allotment through the expiration of the then-current term. Upon the expiration of the then-current term, the total number of Depositions used in such term shall become the Annual Deposition Allotment in the Renewal Term.
7.5 Partial Credit for Unused Depositions. If Customer does not use all the Depositions in Customer’s Annual Deposition Allotment during the then-current term (such Depositions, the “Unused Depositions”), then Provider will, in the event Customer is renewing this Agreement for a Renewal Term, allow Customer to roll over a certain number of Depositions (the “Roll-Over Deposition Amount”) into the subsequent Renewal Term and will not charge Customer for such Depositions. The Roll-Over Deposition Amount will be equal to the lesser of (a) the Unused Deposition, or (b) ten percent (10%) of Customer’s then-current Annual Deposition Allotment. For the avoidance of doubt, if Customer is not renewing this Agreement for a Renewal Term then Customer will receive no refund or credit for Unused Depositions.
7.6 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.
7.7 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
(c) If such failure continues for thirty (30) days following written notice thereof, Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
7.8 No Deductions or Setoffs. All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued pursuant to Section 4.2 or any deduction or withholding of tax as may be required by applicable Law).
7.9 Fee Increases. Provider may increase Fees for any contract year after the first contract year of the Initial Term, including any contract year of any Renewal Term, by providing written notice to Customer at least thirty (30) calendar days prior to the commencement of such Renewal Term.
8. Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information that may or may not be marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire two (2) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
9. Intellectual Property Rights.
9.1 Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
9.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted in Section 9.3.
9.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce this Agreement and exercise Provider's, its Subcontractors', and the Provider Personnel's rights and perform Provider's, its Subcontractors', and the Provider Personnel's obligations hereunder.
10. Limited Warranty and Warranty Disclaimer.
10.1 Limited Warranty. Provider represents, warrants, and covenants to Customer that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
10.2 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1, ALL SERVICES ARE PROVIDED "AS IS." PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11. Indemnification.
11.1 Provider Indemnification. During the Term and for a period of twelve (12) months thereafter (the “Indemnification Period”) Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of such Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Third-Party Claim. If a Third Party-Claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data.
11.2 Customer Indemnification. During the Indemnification Period, Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
12. Limitations of Liability.
12.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, REPRESENTATIVES, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 4.2; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, REPRESENTATIVES, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. Term and Termination.
13.1 Initial Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect for the number of years or months identified on the Sales Order (the “Initial Term”).
13.2 Renewal Term. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive one-year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
13.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Provider's delivery of written notice thereof;
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;
(c) Customer may terminate this Agreement upon receipt of an Amendment Notice if Customer provides written notice of such termination to Provider within thirty (30) days of receipt of the Amendment Notice; and
(d) either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
13.4 Effect of Termination or Expiration. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and the Services, and, without limiting Customer's obligations under Section 8, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
13.5 Surviving Terms. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
14. Miscellaneous.
14.1 Electronic Payment Authorization. Customer authorizes Provider to make electronic fund transfers or otherwise charge Customer’s Payment Method (collectively “electronic payments”) for all Fees due under this Agreement plus any applicable taxes. If Customer’s Payment Method is a credit or debit card, Customer’s authorization applies to any replacement, renewal, or substitute of such credit or debit card account, whether the information regarding such replacement, renewal, or substitute credit or debit card account is provided by Customer or obtained by Provider from any other source. Electronic payments will occur in accordance with the billing schedules set forth in this Agreement.
14.2 Further Assurances. On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
14.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.4 Customer Lists. Provider may include Customer's name and other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials.
14.5 Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement will have legal effect only if in writing and emailed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.5):
If to Provider: andrew@second-chair.ai
If to Customer: at the email address listed on the Sales Order.
Notices sent in accordance with this Section 14.5 will be deemed effectively given when sent by email, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours.
14.6 Interpretation. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
14.7 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.8 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.
14.9 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider's prior written consent, except in the case of a merger, consolidation, or reorganization involving Customer. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
14.10 Force Majeure. In no event shall Provider be liable to Customer or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Provider's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
14.11 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14.12 Amendment and Modification; Waiver. Provider may amend the terms and conditions of this Agreement at any time by providing written notice of such amendment to Customer (an “Amendment Notice”). No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14.13 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.14 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah in each case located in the city of Salt Lake City and County of Salt Lake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
14.15 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 2.3, 3.2, or 8 would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.16 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its actual attorneys' fees and court costs from the non-prevailing party.
14.17 Counterparts. The Sales Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Sales Order delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Sales Order.
14.18 Authority. Customer represents and warrants that the person who signed the Sales Order on behalf of the Customer has the full legal right, power, and authority to enter into the Sales Order on behalf of the Customer. The execution, delivery, and performance of this Agreement have been duly authorized by all necessary corporate or organizational actions. No further consent or approval is required to bind the parties to the terms and conditions set forth herein.
