Please read these Subscription Terms & Conditions (“Terms”) carefully before using the Services offered
by EE2 Consulting, Inc. (“Conversational Demos”). By submitting an Order Form which references these Terms
via Conversational Demos’s standard online process and which is accepted by Conversational Demos, or by
mutually executing one or more Order Forms with Conversational Demos which reference these Terms (each, an
“Order Form”), you or the entity you represent (“Customer”) agree to be bound by and a party to these Terms
(together with all Order Forms, the “Agreement”) to the exclusion of all other terms. You represent and
warrant that you are authorized to bind Customer. If the Terms of this Agreement are considered an offer,
acceptance is expressly limited to such terms.
This Agreement contains, among other things, warranty disclaimers, liability limitations and use
limitations. There shall be no force or effect to any different terms of any related purchase order or
similar form even if signed by the parties after the effective date of the applicable Order Form.
- Order Forms; Access to the Service. Upon online submission and acceptance or mutual execution (as
applicable), each Order Form shall be incorporated into and form a part of the Agreement. For each Order
Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any
limitations and restrictions set forth on the applicable Order Form) Conversational Demos grants Customer
a non-exclusive, limited, personal, non sublicensable, non-transferable right and license to internally
access and use the Conversational Demos product(s) and/or service(s)specified in such Order Form
(collectively, the “Service,” or “Services”) during the applicable Order Form Subscription Term (as
defined below) for the internal business purposes of Customer, only as provided herein and only in
accordance with Conversational Demos’s applicable official user documentation for such Service, including
without limitation the documentation (the “Documentation”).
- Implementation. Upon payment of any applicable fees set forth in each Order Form, Conversational Demos
agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service
only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”).
If Conversational Demos provides Implementation Assistance in excess of any agreed-upon hours estimate, or
if Conversational Demos otherwise provides additional services beyond those agreed in an Order Form,
Customer will pay Conversational Demos at its then-current hourly rates for consultation.
- Support; Service Levels. Subject to Customer’s payment of all applicable fees, Conversational Demos will
provide support, maintenance service, and uptime for each Service in a professional and workmanlike manner
and, if applicable, in accordance with the support package selected by Customer on the applicable Order
Form.
- Service Updates. From time to time, Conversational Demos may provide upgrades, patches, enhancements, or
fixes for the Services to its customers generally without additional charge (“Updates''), and
such Updates will become part of the Services and subject to this Agreement; provided that Conversational
Demos shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer
understands that Conversational Demos may cease supporting old versions or releases of the Services at any
time in its sole discretion; provided that Conversational Demos shall use commercially reasonable efforts
to give Customer reasonable prior notice of any major changes.
- Ownership; Feedback. As between the parties, Conversational Demos retains all right, title, and interest
in and to the Services, and all software, products, works, and other intellectual property and moral
rights related there to or created, used, or provided by Conversational Demos for the purposes of this
Agreement, including any copies and derivative works of the foregoing. Any software which is distributed
or otherwise provided to Customer hereunder (including without limitation any software identified on an
Order Form) shall be deemed a part of the “Services' ' and subject to all of the terms and
conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set
forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other
feedback to Conversational Demos with respect to the Service (“Feedback”). Feedback, even if designated as
confidential by Customer, shall not create any confidentiality obligation for Conversational Demos
notwithstanding anything else. Conversational Demos acknowledges and agrees that all Feedback is provided
“AS IS '' and without warranty of any kind. Customer shall, and hereby does, grant to
Conversational Demos a non-exclusive, worldwide, perpetual, irrevocable,transferable, sublicensable,
royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this
Agreement will impair Conversational Demos’s right to develop, acquire, license, market, promote or
distribute products, software or technologies that perform the same or similar functions as, or otherwise
compete with any products, software or technologies that Customer may develop, produce, market, or
distribute.
- Fees; Payment. Customer shall pay Conversational Demos fees for the Service as set forth in each Order
Form (“Fees”). For billing purposes, an individual shall be deemed to be a “User” if such individual has
logged in to an application licensed under the Services section of an Order Form at any time during the
thirty (30) days immediately preceding the date of an invoice. Unless otherwise specified in an Order
Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are
payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to
interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by
law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on
Conversational Demos’s net income). All Fees paid are non-refundable and are not subject to set-off. If
Customer exceeds any user or usage limitations set forth on an Order Form, Customer will be invoiced in
accordance with Exhibit A.
- Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit
any third party to), directly or indirectly:(i) reverse engineer, decompile, disassemble, or otherwise
attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the
Service(except to the extent applicable laws specifically prohibit such restriction);
- (ii) modify, translate, or create derivative works based on the Service;
- (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to
theService;
- (iv) use the Service for the benefit of a third party;
- (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof;
- (vi) use the Service to build an application or product that is competitive with any Conversational
Demos product or service;
- (vii) interfere or attempt to interfere with the proper working of the Service or any activities
conducted on the Service;
- (viii) bypass any measures Conversational Demos may use to prevent or restrict access to the Service (or
other accounts, computer systems or networks connected to the Service);
- (ix) “crawl,” “scrape,” or“spider” any page, data, or portion of or relating to the Service (or any
information, data or content made available through the Service), whether through use of manual or
automated means; or
- (x) use the Service in a manner that violates applicable laws or regulations. Customer is responsible
for all of Customer’s activity in connection with the Service, including but not limited to uploading
Customer Data (as defined below) onto the Service.
- Customer (i) shall use the Service incompliance with all applicable local, state, national and foreign
laws, treaties and regulations in connection with Customer’s use of the Service (including those related
to data privacy, international communications, export laws and the transmission of technical or personal
data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual
property, contractual or other proprietary rights.
- Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information or other
material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.
Customer represents and warrants that it is authorized to share all Customer Data with Conversational
Demos.
- Customer shall retain all right, title and interest in and to the Customer Data, including all
intellectual property rights therein. Customer, not Conversational Demos, shall have sole responsibility
for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property
ownership or right to use of all Customer Data. Conversational Demos shall use commercially reasonable
efforts to maintain the security and integrity of the Service and the Customer Data. Conversational Demos
is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the
Service unless such access is due to Conversational Demos’s gross negligence or willful misconduct.
Customer is responsible for the use of the Service by any person to whom Customer has given access to the
Service, even if Customer did not authorize such use. Customer agrees and acknowledges that Customer Data
may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent. Notwithstanding
anything to the contrary, Customer acknowledges and agrees that Conversational Demos may (i) internally
use and modify (but not disclose) Customer Data for the purposes of (A) providing the Service to Customer,
(B) testing, improving and operating Conversational Demos’s products and services, and (C) generating
Aggregated Anonymous Data (as defined below), and (ii) freely use and make available Aggregated Anonymous
Data for Conversational Demos’s business purposes (including without limitation, for purposes of
improving, testing, operating, promoting and marketing Conversational Demos’s products and services).
“Aggregated Anonymous Data '' means data submitted to, collected by, or generated by
Conversational Demos in connection with Customer’s use of the Service, but only in aggregate, anonymized
form which can in no way be linked specifically to Customer.
- Data Privacy. The parties acknowledge and agree that Conversational Demos is a service provider for the
purposes of the California Consumer Privacy Act (“CCPA”) and is receiving personal information from
Customer pursuant to this Agreement for a business purpose. Conversational Demos shall not sell any such
personal information. Conversational Demos shall not retain, use or disclose any personal information
provided by Customer pursuant to this Agreement except as necessary for the specific purpose of performing
the Services for Customer pursuant to this Agreement, or otherwise as set forth in this Agreement or as
permitted by the CCPA. The terms “personal information”, “service provider”, “sale,” and “sell” are as
defined in Section 1798.140 of the CCPA. Conversational Demos certifies that it understands the
restrictions of this Section 9. The parties acknowledge and agree that, in some cases, Conversational
Demos may be a controller under the General Data Protection Regulation (Regulation (EU) 2016/679)
(“GDPR”). In such cases, Conversational Demos shall comply with the GDPR as it pertains to controllers. In
other cases, Conversational Demos may be a processor. To the extent Conversational Demos is a processor,
Conversational Demos shall process personal information in accordance with Conversational Demos’s data
processing addendum.To the extent Conversational Demos is a processor, Conversational Demos shall process
personal information in accordance with
Conversational Demos’s data processing addendum.” The DPA will apply automatically
when they click-through the TOS.
- Third Party Services. Customer acknowledges and agrees that the Service may operate on, with or using
application programming interfaces (APIs) and/or other services operated or provided by third parties
(“Third Party Services”), including without limitation through integrations or connectors to such Third
Party Services that are provided by Conversational Demos. Conversational Demos is not responsible for the
operation of any Third Party Services nor the availability or operation of the Service to the extent such
availability and operation is dependent upon Third Party Services. Customer is solely responsible for
procuring any and all rights necessary for it to access Third Party Services (including any Customer Data
or other information relating thereto) and for complying with any applicable terms or conditions thereof.
Conversational Demos does not make any representations or warranties with respect to Third Party Services
or any third party providers. Any exchange of data or other interaction between Customer and a third party
provider is solely between Customer and such third party provider and is governed by such third party’s
terms and conditions.
- Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless
earlier terminated in accordance herewith, shall last until the expiration of all Order Form Subscription
Terms. For each Order Form, unless otherwise specified therein, the “Order Form Subscription Term” shall
begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth
herein, (x) shall continue for the initial subscription term specified on such Order Form (the “Order Form
Initial Subscription Term”), and (y) following the Order Form Initial Subscription Term, shall
automatically renew for additional successive periods of twelve (12) months each (each, a “Order Form
Renewal Term”) at aSubscription Price seven and a half percent (7.5%) greater than the Subscription Price
for the immediately preceding Order Form Initial Subscription Term or then-current Order Form Renewal
Term, as applicable, or some other Subscription Price determined by Conversational Demos and communicated
to Customer no later than one hundred and twenty (120) days prior to the expiration of the Order Form
Initial Subscription Term or then-current Order Form Renewal Term, as applicable, unless either party
notifies the other party of such party’s intention not to renew no later than thirty(30) days prior to the
expiration of the Order Form Initial Subscription Term or then-current Order Form Renewal Term, as
applicable. In the event of a material breach of this Agreement by either party, the non-breaching party
may terminate thisAgreement by providing written notice to the breaching party, provided that the
breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.
Without limiting the foregoing, Conversational Demos may suspend or limit Customer’s access to or use of
the Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the
Service results in (or is reasonably likely to result in) damage to or material degradation of the Service
which interferes with Conversational Demos’s ability to provide access to the Service to other customers;
provided that in the case of subsection (ii): (a) Conversational Demos shall use reasonable good faith
efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the
issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation,
Conversational Demos shall use commercially reasonable efforts to provide notice to Customer describing
the nature of the damage or degradation; and (c) Conversational Demos shall reinstate Customer’s use of or
access to the Service, as applicable, if Customer remediates the issue within thirty (30) days of receipt
of such notice. All provisions of this Agreement which by their nature should survive termination shall
survive termination, including, without limitation, accrued payment obligations, ownership provisions,
warranty disclaimers, indemnity and limitations of liability.
- Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party,
its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and
representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or
payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from
or relate to any claim that (i) the Customer Data or Customer’s use of the Service (in the case of
Customer as Indemnitor), or (ii) the Service (in the case of Conversational Demos as Indemnitor),
infringes, violates, or misappropriates any third party intellectual property or proprietary right. Each
Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the
Indemnitor with:(i) prompt written notice of any claim (provided that a failure to provide such notice
shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced
by such failure);(ii) the option to assume sole control over the defense and settlement of any claim
(provided that the Indemnitee may participate in such defense and settlement at its own expense); and(iii)
reasonable information and assistance in connection with such defense and settlement (at the
Indemnitor's expense).The foregoing obligations of Conversational Demos do not apply with respect to
theService or any information, technology, materials or data (or any portions or components of the
foregoing) to the extent (i) not created or provided by Conversational Demos(including without limitation
any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified
after delivery by Conversational Demos, (iv) combined with other products, processes or materials not
provided by Conversational Demos (where the alleged Losses arise from or relate to such combination), (v)
where Customer continues allegedly infringing activity after being notified thereof or after being
informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the
Service is not strictly in accordance herewith.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE ISPROVIDED “AS IS” AND “AS AVAILABLE” AND
ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY
WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE
EXPRESSLY DISCLAIMED.
- Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH
OF SECTION 7, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR
CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR
EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS,
COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT,INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY
BUGS,VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY
DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO COVERSATIONAL
DEMOS HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Miscellaneous. This Agreement represents the entire agreement between Customer and Conversational Demos
with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and
proposals (whether oral, written or electronic) between Customer and Conversational Demos with respect
thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of
California,excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and
venue in the state and federal courts located in San Francisco, California. All notices under this
Agreement shall be in writing and shall be deemed to have been duly given when received, if personally
delivered or sent by certified or registered mail, return receipt requested; when receipt is
electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for
next day delivery by recognized overnight delivery service. Notices must be sent to (i) for EE2
Consulting, Inc. and (ii) for Customer, the address provided by Customer on the Order Form. Either party
may update its address set forth above by giving notice in accordance with this section. Except as
otherwise provided herein, no modification or amendment of any provision of thisAgreement shall be
effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall
be effective unless in writing and signed by the waiving party. Except for payment obligations, neither
party shall be liable forany failure to perform its obligations hereunder where such failure results from
anycause beyond such party’s reasonable control, including, without limitation, theelements; fire; flood;
severe weather; earthquake; vandalism; accidents; sabotage;power failure; denial of service attacks or
similar attacks; Internet failure; acts ofGod and the public enemy; acts of war; acts of terrorism; riots;
civil or publicdisturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules,regulations,
acts or restraints of any government or governmental body or authority, civil or military, including the
orders and judgments of courts. Neitherparty may assign any of its rights or obligations hereunder without
the other party's consent; provided that (i) either party may assign all of its rights and
obligations hereunder without such consent to a successor-in-interest in connection with a sale of
substantially all of such party’s business relating to this Agreement, and (ii)Conversational Demos may
utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint
venture, or employment relationship is created as a result of this Agreement and neither party has any
authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights
under this Agreement, the prevailing party shall be entitled to recover costs and attorneys fees. If any
provision of this Agreement is held to be unenforceable for any reason,such provision shall be reformed
only to the extent necessary to make it enforceable. The failure of either party to act with respect to a
breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s
rights with respect to such breach or any subsequent breaches.
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