Service Agreement for Innovation Teams
This Services Agreement for Innovation Teams (this “Agreement”) is entered into by and between Dashbot, Inc., a Delaware corporation with offices at 235 Pine St. #750, San Francisco, CA (“Dashbot”) and the entity on whose behalf you, the individual reading this Agreement, are agreeing to the terms set forth herein (“Customer”), and is effective as of the earlier of: (a) the date that you click “I Agree”, sign a written form of this Agreement, or otherwise affirmatively manifest your assent to the terms of this Agreement; or (b) the date that you or any other employee or contractor use the Services on Customer’s behalf (the “Effective Date”). Dashbot and Customer may be singularly referred to in this Agreement as the “Party”, or collectively, as the “Parties”.
- A. Dashbot has developed and offers on a hosted software-as-a-service (SaaS) basis a data analytics and intelligence platform for conversational interfaces to help product, engineering, and marketing executives, among others, understand and improve the efficacy of their chatbots, voice assistant applications, and/or other chat or conversational channels.
- B. Dashbot also provides support and maintenance services related to its platform, and may offer consulting, implementation and other professional services, as part of separate agreements.
- C. Customer wishes to utilize Dashbot’s platform as provided herein.
This Agreement has been designed as a lightweight contracting structure to allow innovation teams at entities such as Customer to use the Dashbot products and services governed by this Agreement without negotiating an enterprise-level contract. Without limiting the foregoing, the Parties agree that if Customer wishes to utilize “Enterprise Services” or extend the services performed hereunder, the Parties will negotiate in good faith a separate agreement using the Customer form agreement or other mutually agreeable form.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the Parties hereto agree as follows:
1.1 “Applicable Law” shall mean all federal, state and local laws, statutes, ordinances, rules and regulations of any jurisdiction including, privacy statutes and regulations promulgated and in effect under such statutes.
1.2 “Confidential Information” shall mean any information relating to, disclosed, accessed, received, stored, or collected (in each case, by or on behalf of, a Party) in the course of this Agreement that is, or should be reasonably understood to be, confidential to a Party, including, without limitation, the terms of this Agreement, financial, business and technical plans and strategies, pricing information, inventions and new products, services and technologies.
1.3 “Conversational Interface” means any conversational interface including chatbots, voice assistant applications, or live agent chat.
1.4 “Customer Data” means the non-public, proprietary data, such as chatbot content and related usage data, provided to or made accessible to Dashbot by Customer under this Agreement for the purpose of obtaining the Services; provided that such data shall not include any publicly available data, or any data independently derived by Dashbot (provided that any such independently derived data does not include any information related to Customer, including (without limitation) information relating to its brands, properties and end users), or obtained by Dashbot from a third party with express permission of such third party without violating any confidentiality obligations or intellectual property rights of Customer.
1.5 “Customer Properties” means any and all Customer chatbots, voice assistant applications, and conversational applications.
1.6 “Customer Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Services and have been supplied user identifications and passwords by Customer (or by Dashbot at Customer’s request).
1.7 “End Users” means end users of Customer Properties.
1.8 “Fees” means Subscription Fees and any other fees payable under this Agreement.
1.9 “Message” means the JSON message payload sent to Dashbot either through Dashbot’s SDK or REST API, whenever an End-user interacts with a Customer’s chatbot or the Customer’s chatbot responds to the End-User.
1.10 “Support” means the service level and support commitments set forth at [link].
1.11 “Rules” shall mean all customer policies, data and security requirements and social network and developer rules as applicable.
1.12 “Services” means Dashbot’s web-based chatbot data analytics and intelligence software-as-a-service platform (including all purchased add-ons) made available through the Website, as further described at [link].
1.13 “Subscription Term” means the period selected by Customer during the onboarding process or, if no period was selected, twelve (12) months from the Effective Date.
1.14 “Website” means https://www.dashbot.io/ (or a successor site).
2.1 Right to Access and Use. Subject to the terms and conditions of this Agreement, Dashbot hereby grants Customer a non-exclusive, non-transferable right, during the Subscription Term, to access through the Website and use the Services, including any applicable Service add-ons purchased by Customer, solely for Customer’s internal business purposes. The foregoing rights include a non-exclusive, non-transferable license, during the Subscription Term, to use, reproduce and distribute Dashbot’s SDK tools as may be necessary to transmit Messages to the Services from Customer’s data sources.
2.2 Customer Users. Customer may have only as many user accounts and related user identifications in use at any one time as the number of Customer Users specified at https://www.dashbot.io/pricing for the particular service tier Customer has selected, or purchased additionally. Customer acknowledges that Dashbot may include in its Services functionality to track the number of active user identifications and to disallow use by more than the authorized number of user identifications. Customer User identifications and passwords cannot be shared or used by more than one Customer User. Customer is responsible for all activities that occur under Customer User accounts other than any maintenance or other activities undertaken by Dashbot. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and shall promptly notify Dashbot of any known unauthorized use. Customer will ensure that (a) all Customer Users given access to the Services have the right to access the information and Customer Data made accessible to them by Customer through the Services and (b) any Customer User granting Dashbot access to any Customer Data has the right and authority to grant such access.
2.3 Customer Data. If applicable to the Services, Customer shall deliver to, or grant access or permission to access via a third party, and hereby grants such permissions to, Dashbot, the Customer Data that Customer wishes to have analyzed using the Services. Customer shall grant and hereby grants Dashbot a non-exclusive, non-transferable right to access, use, copy, modify, and display for the benefit of Customer the Customer Data solely: (a) as necessary to provide the Services in accordance with the terms of this Agreement; (b) to deliver to Customer the analytical results derived from processing the Customer Data (“Results”); (c) to generate aggregated statistical data, in de-identified form (collectively, “Aggregated Data”) and use such Aggregated Data for Dashbot’s internal business purposes and to create and publish industry insight reports, articles, and presentations or to create comparison market metrics based on message and user counts. Except as described in part (c) of the foregoing sentence, Dashbot will not share information associated with Customer or Customer Properties with any third parties unless (i) Dashbot has Customer’s consent to do so; or (ii) Dashbot concludes in good faith that such disclosure is required by law or that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of Dashbot, its users, or the public. Customer shall have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Customer Data.
2.4 Security of Customer Data; Incident Response. Dashbot shall maintain and enforce reasonable and appropriate physical, technical, policy and administrative safeguards, precautions and measures where Customer Data is, or can be, accessed, stored or transmitted, to protect the Customer Data from loss, misuse, alteration, corruption, unauthorized access, or unauthorized acquisition whether at rest or in-transit. Dashbot will notify Customer within 24 hours of becoming aware of any unauthorized access, use or disclosure of Customer Data or a vulnerability in the Dashbot Services that may lead to an unauthorized access, use or disclosure of Customer Data (a “Security Incident”). Dashbot will (a) immediately investigate and take all reasonable steps to mitigate any potential damages, and remediate the cause of the Security Incident; (b) provide Customer with full details of the cause, and impact, of any Security Incident; (c) take all reasonable actions to prevent any similar reoccurrence; and (d) cooperate with Customer in any litigation and/or investigation by or against third parties in connection with the Security Incident. Customer reserves the right to manage all communications with the affected individuals, governmental entities, the public and/or third parties, or to review and approve of Dashbot’s communications with such parties.
2.5 Service Guidelines. Customer shall not use the Services to send spam or unsolicited messages, collect data regarding others without their consent, transmit unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, transmit viruses or other harmful computer code, interfere with the performance of the Services or the data contained therein, attempt to gain unauthorized access to the Services or networks related to the Services, or interfere with another’s use of the Services; provided, however, that Dashbot acknowledges that Customer has no control over and, therefore, no liability for, the transcripts resulting from, or other data provided by, the applicable End User’s use of the Customer Properties. Customer must not permit access to the Services to any third party. Customer must not modify, copy, or make derivative works based on the Website or the Services; disassemble, reverse engineer, or decompile the Services; create “links” to or from the Website or the Services, or “frame” or “mirror” any of Dashbot’s content; or access the Website or the Services to build a competitive service, reproduce features of the Services, or resell the Services.
2.6 Support. Subject to Customer’s payment of all applicable Fees, Dashbot will provide Support during the Subscription Term.
- Fees and Billing.
3.1 Fees. Customer shall pay the subscription fees applicable to Customer’s use of the Services purchased for the Services in the amounts specified at https://www.dashbot.io/pricing/innovation-plan (“Subscription Fees”).
3.2 Billing and Payment Terms.
(a) Dashbot will invoice Customer in advance for the Fees.
(b) If Customer’s actual Service use exceeds the then selected tier or usage volume, Customer will pay Dashbot the difference between the Subscription Fees for the actual use or the newly selected tier or usage volume, as applicable, and the Subscription Fees for the previously selected tier or usage volume, pro-rated for the time remaining in the then applicable Subscription Term, which will be billed to Customer automatically. Customer will also be solely responsible for all fees payable to third parties for access to data that Customer wishes to access in connection with the Services, as such data is selected in Customer’s sole discretion.
(c) Payments may be made solely in one (1) of the following manners: (1) by credit card via the Services, which will be billed automatically on a monthly basis; or (2) by check, which will be made upfront in advance on an annual basis. All payments must be made in, U.S. dollars. All Fees received by Dashbot are deemed earned upon receipt and are non-refundable unless otherwise expressly set forth in this Agreement. Late payments hereunder will accrue interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower, and may result in suspension or termination of the Services until all amounts are paid in full.
3.3 Taxes. All payments required by this Agreement exclude all sales, value-added, use, or other taxes and similar obligations, all of which Customer will be responsible for and will pay in full, except for taxes based on Dashbot’s net income. If Dashbot has the legal obligation to pay or collect taxes for which Customer is responsible pursuant to this Section 3.3, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Dashbot with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Proprietary Rights.
4.1 Dashbot Technology. Customer acknowledges that in providing the Services, Dashbot utilizes analytical, predictive, and optimization models; frameworks, algorithms and similar systems; other technology; and the Website, Dashbot name, logo and other attributions (collectively, “Dashbot Technology“) as well as data from a variety of proprietary and publicly available (including online) sources. Subject to the limited rights granted to Customer to use the Services pursuant to Section 2.1, as between Dashbot and Customer, Dashbot retains all rights, title and interest, including all Intellectual Property rights, in and to the Dashbot Technology and the Services, and any and all modifications, enhancements, customizations or improvements to any of the foregoing.
4.2 Customer Data. Dashbot collects and aggregates data from multiple sources for the purpose of performing and providing analysis and providing and improving the Services (including Dashbot Technology), Customer hereby authorizes Dashbot to collect and use the Customer Data and Results therefrom for the foregoing purposes, provided that Customer Data may not be disclosed by Dashbot to any third party in raw, non-anonymous, or disaggregated form, except as set forth in Section 2.3, and neither Customer nor any entity or person directly or indirectly controlled Customer (now or in the future) shall be identified by Dashbot as the source of such Customer Data. Subject to the express rights granted to Dashbot to use the Customer Data pursuant to this Agreement, as between Customer and Dashbot, Customer retains all rights, title and interest, including all Intellectual Property rights, to Customer Data.
5. 1 Definition of Confidential Information. As used herein, “Confidential Information” means all information of a Party (“Disclosing Party“), which if disclosed to the other Party (“Receiving Party“): (a) in tangible form, is designated in writing as being confidential at the time of disclosure; (b) if disclosed orally or visually, is identified as confidential at the time of disclosure, and reduced to writing and provided to the Receiving Party within thirty (30) days of disclosure; or (c) whether or not identified as confidential, would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure. The Confidential Information of (x) both Parties shall include, without limitation, the terms and conditions of this Agreement; (y) Dashbot shall include the Dashbot Technology, Dashbot IP Rights and the Services; and (z) Customer shall include, without limitation, the Customer Data. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (c) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
5.2 Confidentiality. The Receiving Party shall not (a) use any Confidential Information of the Disclosing Party for any purpose other than to perform its obligations under this Agreement, or (b) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than its personnel (including employees, contractors and consultants) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by confidentiality obligations that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, the Receiving Party shall have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets. Dashbot shall have the unlimited right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services, and any residual information retained in the unaided memory of Dashbot’s personnel.
5.3 Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either Party exercise less than reasonable care in protecting such Confidential Information.
5.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by Applicable Law, provided that the Receiving Party shall make reasonable efforts to provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to obtain protective treatment of the Confidential Information.
5.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the Parties that any other available remedies are inadequate.
- Representations and Warranties.
6. 1 Mutual Warranties. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) the execution, delivery, and performance of this Agreement does not violate any other agreement to which it is a party or by which it is otherwise bound; and (c) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all Applicable Law.
6.2 By Dashbot. Dashbot further represents and warrants that (a) it will perform the Services in a professional manner consistent with applicable industry standards; (b) it owns, licenses and/or has all rights and interest necessary to grant Customer the rights in and to the Services hereunder; and (c) to Dashbot’s knowledge, the Services and Customer’s use thereof does not and shall not violate or infringe the rights of any third party, including, without limitation, any valid patent, trademark, trade secret, copyright or similar proprietary right.
6.3 By Customer. Customer further represents and warrants that: (a) Customer has the necessary rights and permissions or approvals to use and to permit the use of the Customer Data to the extent required by Applicable Law; (b) all Customer Users have been authorized by Customer to access the information and data made accessible to them by Customer through the Services; and (c) subject to Section 7.2(c) above, Customer’s use of the Service is in compliance with, and shall not violate any applicable privacy and data protection law, rule or regulation. In the event of a breach, or reasonably anticipated breach, of the foregoing warranties, in addition to any other remedies available at law or in equity, Dashbot will have the right, in its sole discretion, to immediately suspend any related Services if deemed reasonably necessary by Dashbot to prevent any liability accruing to it.
6.4 THE FOREGOING WARRANTIES ARE THE PARTIES’ SOLE WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND DASHBOT MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DASHBOT HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.
6.5 Limitations of Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN (WHICH, WHERE DASHBOT IS THE INDEMNIFYING PARTY, WILL NOT EXCEED FIVE HUNDRED THOUSAND U.S. DOLLARS ($500,000.00)), ANY DAMAGES RESULTING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREIN, ANY DAMAGES RESULTING FROM A PARTY’S FRAUD, WILLFUL ACTS, INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, AND/OR DAMAGES RESULTING FROM PERSONAL INJURY OR PROPERTY DAMAGE: (A) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE SERVICES DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. Customer acknowledges that Dashbot has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Parties. The Parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
7.1 By Dashbot.
(a) Dashbot shall defend and/or settle, at its own cost and expense, any third party claim, suit or proceeding (“Claim”) brought against Customer or its affiliates and their officers, directors, employees, representatives and agents (the “Customer Indemnitees”) arising out of any (i) actual or alleged breach of any Dashbot’s representations or warranties contained in Section 6.2(b) or (c); and/or (ii) any use of the Services expressly permitted by this Agreement or described in the product documentation made available by Dashbot in connection with the Services, but specifically excluding any such claim or action caused by or based upon any unauthorized act or omission of Customer, its employees, contractors, representatives or agents. Dashbot agrees to indemnify and hold the Customer Indemnitees harmless from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) associated with any such Claim. Dashbot shall solely conduct the defense or settlement negotiations; provided that Customer provides Dashbot with (x) prompt written notice of such Claim; and (y) available information and assistance, at Dashbot’s expense, to settle and/or defend any such Claim; provided further that any failure of Customer to provide notice will not relieve Dashbot of its obligation to indemnify Customer unless Dashbot is materially prejudiced thereby. Notwithstanding the foregoing, (1) no settlement or compromise shall be entered into or agreed to without Customer’s prior approval (such approval not to be unreasonably withheld, conditioned, or delayed); and (2) subject to Dashbot’s control thereof, Customer may participate, at its own expense, in the defense and/or settlement of any such Claim in order to protect its own interests.
(b) In the event any such Claim is brought or threatened, or, in Dashbot’s opinion, a Claim is likely to be brought, Dashbot may, at its sole option and expense: (i) procure for Customer the right to continue to use the Services; (ii) modify or amend the Services, or replace the Services with non-infringing services that do not materially impair the functionality of the Services; or (iii) if either of the foregoing is not feasible on commercially reasonable terms, terminate this Agreement and refund on a pro-rata basis any prepaid fees, and upon such termination, Customer will immediately cease all use of the Services.
(c) Dashbot shall have no obligation to Customer under Section 7.1 to the extent a Claim arises from (i) Customer’s breach of this Agreement; (ii) use of the Services in combination with any products, services, data, software, hardware or business process not contemplated by this Agreement, if the alleged infringement would not have occurred absent such combination; or (iii) any data obtained by Dashbot from publicly available (including online) sources.
(d) THE FOREGOING PROVISIONS OF THIS SECTION 7.1 STATE THE ENTIRE LIABILITY OF DASHBOT, AND THE SOLE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICES.
7.2 By Customer. Customer shall defend and/or settle at its own cost and expense, at its option, any Claims brought against Dashbot or its affiliates and their officers, directors, employees, representatives and agents (the “Dashbot Indemnitees”) arising out of any actual or alleged breach of Customer’s representations, warranties and covenants contained in this Agreement but specifically excluding any claim or action caused by, based on and/or arising out of the Services and/or Dashbot Technology when used as expressly permitted by this Agreement or described in the product documentation made available by Dashbot in connection with the Services, and/or any unauthorized act or omission of Dashbot, its employees, contractors, representatives or agents. Customer agrees to indemnify and hold the Dashbot Indemnitees harmless from and against any and all liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) associated with any such Claim. Customer shall solely conduct the defense or settlement negotiations; provided that Dashbot provides Customer with (a) prompt written notice of such Claim; and (b) available information and assistance, at Customer’s expense, to settle and/or defend any such Claim. Notwithstanding the foregoing, (x) no settlement or compromise shall be entered into or agreed to without Dashbot’s prior approval (such approval not to be unreasonably withheld, conditioned, or delayed); and (y) subject to Customer’s control thereof, Dashbot has the right to participate, at its own expense, in the defense and/or settlement of any such Claim or action in order to protect its own interests.
Dashbot shall secure and maintain during the Term a policy of: (a) Commercial General Liability insurance and (b) Errors and Omissions Insurance (including, without limitation, Cyber Liability) and/or Media Liability insurance, applicable to its acts and omissions including, without limitation, the negligence or willful misconduct of Dashbot, its employees, agents, representatives and/or contractors, with respect to Dashbot’s obligations described herein. Each of the foregoing insurance policies shall have limits of no less than $1,000,000 per occurrence and in the aggregate and shall be secured at Dashbot’s own cost and expense. Dashbot agrees to furnish Customer with certificates of insurance evidencing the foregoing insurance coverage upon Customer’s request during the Term.
- Subscription Term and Termination.
9.1 Subscription Term. This Agreement shall commence on the Effective Date and shall remain effective through the end of the Subscription Term. Thereafter, the Agreement will automatically renew for additional periods of equal length to the immediately preceding Subscription Term unless a party provides the other with at least thirty (30) days’ prior written notice of its intention not to renew.
(a) Either Party may terminate this Agreement, for any reason or for no reason, by providing the other Party at least thirty (30) days’ prior written notice.
(b) Either Party will have the right to terminate this Agreement, if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. The foregoing cure period shall not apply in the case of failure to pay Fees.
(c) Either Party may terminate this Agreement if: (i) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
9.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (a) Dashbot may immediately cease providing the Services hereunder; (b) any and all undisputed payment obligations of Customer under this Agreement will become due immediately; and (c) within thirty (30) days after such expiration or termination, each Party shall return the tangible embodiments of the other Party’s Confidential Information in its possession and shall not retain any copies of such Confidential Information except as required to comply with any applicable routine legal or accounting record keeping requirement. In the event of a termination by Customer pursuant to Section 10.2(b) above, Dashbot shall immediately refund to Customer the unused pro-rated portion of the Fees paid to Dashbot for Services not yet received as of the date of termination.
9.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 1, 4.2, 4.3, 5 through 9 (inclusive), 10.3, 10.4 and 12
- No Publicity.
Neither Party may use the other Party’s name, logo(s), or other identifying information or image in any public communications whatsoever, without other Party’s prior written consent. Without limiting the generality of the foregoing, Dashbot agrees not to make any public statements concerning the relationship between Dashbot and Customer without the prior written consent of Customer. The Parties agree to adhere to the logo and trademark usage guidelines of the other party.
- Miscellaneous Provisions.
11.1 Force Majeure. Neither Party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyberattacks or war, hosting or similar services outages or denial of service other than for such Party’s breach (such as Amazon Web Services outages or denial of service), cyberattacks, worms, bots, or similar malware.
11.2 Governing Law; Venue. Based on the location of Customer’s headquarters, unless otherwise agreed by the Parties, this Agreement shall be governed by and construed in accordance with the laws of the following jurisdiction, without regard to its conflict of laws principles, and any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the state courts located in the following jurisdiction, and each Party consents to the personal jurisdiction thereof and waives any right it may otherwise have to challenge the appropriateness of such forums.
|Customer Headquarters Location||Governing Law||Venue|
|New York||New York||New York, NY|
|Northern California||California||San Francisco, CA|
|Southern California||California||Los Angeles, CA|
|Any Other Location||California||San Francisco, CA|
11.3 Jury Trial Waiver. The Parties irrevocably waive, to the fullest extent permitted by law, all right to a trial by jury in connection with any dispute arising out of or relating to this Agreement.
11.4 Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
11.5 Construction. The Parties acknowledge and agree that they have had the opportunity to review and discuss this Agreement with and obtain advice from their legal counsel. Therefore, the Parties waive the application of any rule of construction providing that ambiguities in an agreement will be construed against the Party drafting such agreement.
11.6 Assignment. Neither Party shall have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, except that each Party may assign this Agreement as part of a corporate reorganization, upon a change of control, consolidation, merger, or sale of all or substantially all of its assets to which this Agreement relates. Any purported or attempted assignment or delegation without such consent will be void, ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns.
11.7 Notices. Any notice or communication required or permitted to be given hereunder may be delivered by registered or certified mail, return receipt requested, or by rapid delivery service (e.g., UPS, FedEx) with tracking enabled, to the address for the applicable Party noted above, or at such other address as may hereafter be furnished in writing by either Party. Such notice will be deemed to have been given as of the date it is delivered. Email notice may be provided only where permitted herein, which will be deemed effective when sent provided that the sender does not receive a response that the message could not be delivered or an out of office reply.
11.8 Independent Contractors; Subcontractors. Dashbot and Customer are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Dashbot and Customer. Neither Dashbot nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. Dashbot shall have the right to use such subcontractors and third parties as it deems necessary to carry out its duties under this Agreement. Customer hereby acknowledges that Dashbot operates its services via the third-party hosting service provider, Amazon Web Services.
11.9 Entire Agreement. The terms and conditions of any exhibits, schedules and other documents referenced herein or therein are incorporated into the terms and conditions of this Agreement, constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may only be amended or modified by a writing signed by both Parties; provided, however, that the online version of this Agreement may be modified from time to time by Dashbot in its sole discretion. If Dashbot makes any such amendments or modifications, and such amendments or modifications are material, then Dashbot will notify Customer of such changes via a method of its choosing that is reasonably designed to provide Customer actual notice of such amendments or modifications, and Customer’s continued use of the Services thereafter will constitute Customer’s acceptance of such amendments or modifications. In the event of any conflict in the documents which constitute this Agreement, the order of precedence will be (a) this Agreement (unless a particular provision of the Agreement expressly states otherwise in a separate writing executed by the Parties); and (b) any other schedules, exhibits and other documents referenced and incorporated herein and therein.
IN WITNESS WHEREOF, Customer’s authorized representatives agrees to this Agreement below to indicate their assent to its terms: