Version 2.0 — Effective 31 July 2019
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) DOWNLOADING, INSTALLING AND/OR USING THE PLATFORM, CUSTOMER AGREES TO BE BOUND BY THE TERMS.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Enterprise Bot’s direct competitors are prohibited from accessing the Services, except with Enterprise Bot’s prior written consent. In addition, the Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Enterprise Bot may amend these Terms from time to time by posting an amended version at its website and sending Customer notice thereof (an email to Customer’s system administrator of the Services being sufficient). Such amendment will be deemed accepted and become effective as per the effective date stated in the amended Terms (the “Proposed Amendment Date”) unless Customer rejects the amendment in writing (an email to firstname.lastname@example.org being sufficient) within 30 days after receiving the notice from Enterprise Bot. In the event of such rejection, these Terms will continue under their original provisions, and the amendment will become effective at the start of Customer’s next subscription term following the Proposed Amendment Date. Customer’s continued use of the Platform following the effective date of an amendment will confirm Customer’s consent thereto. These Terms may not be amended in any other way except through a written agreement by authorized representatives of each party.
1.1 “Administrative Console” means the Web-based functionality within the Services which allows Customer to access User administration, security configuration, billing information, analytics and other administrative functions for their accounts and where Customer shall receive updates or notifications for their accounts and the Services.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
1.3 “API” means the application programming interface(s) used by or on behalf of Customer to access the Services.
1.4 “Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
1.5 “Customer Application” means any application created or used by or on behalf of Customer that uses the API and/or the SDK for the purposes of accessing certain functionality provided by the Services, as purchased by Customer under an Order Form. ‘Customer Application’ so defined includes Customer Applications as integrated by a Third-Party Integrator.
1.6 “Customer Data” means all electronic data or information submitted by Customer and the Users to the Services.
1.7 “Documentation” means the online documentation for integrating and using the Platform, accessible via the Enterprise Bot website, as updated from time to time.
1.8 “Effective Date” means the date that Customer signs or otherwise accepts the applicable Order Form.
1.9 “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
1.10 “Non-Enterprise Bot Application” means a Web-based, mobile, offline or other software application functionality that interoperates with the Platform, that is provided by Customer or a third party.
1.11 “Order Form” means the ordering document or online order specifying the parts of the Platform to be provided hereunder (including applicable subscription tier of Technical Support) that is entered into between Customer and Enterprise Bot or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
1.12 “Platform” means the SDK and the Services.
1.13 “Purchased Subscription” means the Platform subscription that Customer or Customer’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from those provided pursuant to a free trial.
1.14 “Reseller” means an entity that has entered into an agreement with Enterprise Bot that, among other things, authorizes the entity to resell the Platform and, if applicable, provide certain services.
1.15 “SDK” means any and all software development kit (SDK) provided or managed by Enterprise Bot under an Order Form.
1.16 “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer under a free trial, and made available online by Enterprise Bot, including the API, the Administrative Console and associated Enterprise Bot offline or mobile components.
1.17 “SLA” means the service level agreement for the Services as further described at https://enterprisebot.ai/legal/sla
1.18 “Technical Support” means the trouble handling and break/fix support services and assistance provided by Enterprise Bot as further described at https://enterprisebot.ai/legal/tsa. Enterprise Bot offers second level of support, the first level being the support offered by the Customer to its Users. Enterprise Bot offers varying Technical Support subscription tiers.
1.19 “Third-Party Integrator” means a third party that integrates a Customer Application into an application created or used by or on behalf of that third party.
1.20 “User” means any individual whom Customer enables to use the Services (for clarity, including the Administrative Console) or who uses the Services via a Customer Application.
2. Provisions Relating to the Services
2.1 The Services
2.1.1 Provision of Services. Enterprise Bot will (a) make the Services available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable Technical Support to Customer to the extent purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week and as further set forth in the SLA, and (d) provide the Services in accordance with laws and government regulations applicable to Enterprise Bot’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
2.1.2 Minimum System Requirements. Customer recognizes and agrees that in order to utilize the Services certain minimum system requirements exist that can be found in Appendix 2
2.1.3 Professional Services. Any professional services to be provided to Customer by Enterprise Bot will be governed by the Enterprise Bot Professional Services Terms as set forth at https://enterprisebot.ai/legal/professional-services-terms
2.2 Customer’s Right to Use the Services
2.2.1 Right to Use the Services. Subject to (a) Customer purchasing such right under an Order Form, and (b) Customer’s compliance with the terms and conditions of this Agreement, Enterprise Bot hereby grants Customer and its Users a worldwide, non-exclusive, limited-term, non-transferable and non-sublicensable (except as otherwise permitted under this Agreement) right to (i) incorporate the API into a Customer Application, and (ii) access and use the Services for its internal business purposes and otherwise in accordance with the terms of this Agreement. Enterprise Bot reserves the right, with reasonable notice to Customer, to audit Customer’s use of the Services no more than once each calendar year to ensure compliance with the terms of the Agreement.
2.2.2 Restrictions. Except to the extent such restrictions may be prohibited by applicable law, Customer shall not (a) make any Service available to anyone other than Customer or Users, or use any Service for the benefit of anyone other than Customer or its Affiliates, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, except (subject to the terms of this Agreement) sublicense to a Third-Party Integrator to the extent necessary to distribute a Customer Application; (c) use a Service or Non-Enterprise Bot Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Enterprise Bot Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Enterprise Bot intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, or on any of Enterprise Bot’s intellectual property rights; or (i) disassemble, reverse engineer, or decompile a Service or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent, Without limiting any other remedies under this Agreement, if Customer’s use of the Services does not conform with Customer’s subscription under the applicable Order Form, reasonable restrictions may be placed on Customer’s account until any non-conformance is adequately mitigated or eliminated by Customer.
2.3 Parameters and Limitations of Use
2.3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, and (b) fees are based on actual usage as set forth in the applicable Order Form. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Enterprise Bot regarding future functionality or features.
2.3.2 Usage Limits. The Services may be subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, Enterprise Bot may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Enterprise Bot’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon Enterprise Bot’s request, and/or pay any invoice for excess usage in accordance with the section “Fees and Payment” below.
2.3.3 Customer Responsibilities. Customer is responsible for all activities that occur under Customer’s User accounts. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Enterprise Bot Applications with which Customer uses Services, (c) use Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, (d) comply with terms of service of any Non-Enterprise Bot Applications with which Customer uses Services, and (e) procure that Users safeguard their accounts, use strong passwords and limit their use to each specific account. Enterprise Bot will not be liable for any loss or damage arising from failure to comply with the above. Any use of the Services in breach of the foregoing by Customer or Users that in Enterprise Bot’s judgment threatens the security, integrity or availability of Enterprise Bot’s services, may result in Enterprise Bot’s immediate suspension of the Services, however Enterprise Bot will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
2.3.4 Customer Applications. Enterprise Bot may review the Customer Application for compliance with this Agreement at any time during the subscription term. Customer will be solely responsible for technical support and warranty for Customer Applications. Enterprise Bot will not provide Technical Support to Customer Application Users and will not be responsible for any Services downtime, issues or other performance issues to the extent attributable to a Customer Application. Customer will ensure, and is solely responsible for ensuring, that the Customer Application (a) conforms to Customer’s descriptions of the Customer Application, (b) is free of defects in design and operation, (c) does not infringe upon the rights of any third party, including copyright, trademark, trade secret, privacy, publicity or other personal or proprietary right, or is otherwise unlawful or give rise to civil or criminal liability, (d) does not contain spyware, adware, viruses, worms, or any other type of malware or malicious code, and (e) complies with this Agreement, all applicable laws and regulations, and generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding data protection or the export of data or software).
2.3.5 Users’ Personal Information. Customer acknowledges that the Services may require Users to share with Enterprise Bot certain information which may include personal information regarding Users (such as name, address, birthday, email address, phone number, etc.) solely for the purposes of providing and improving the Services (“User Information”). Prior to any individual becoming a User, Customer is fully responsible for obtaining the consent of that individual, in accordance with applicable law, to such use of his/her User Information by Enterprise Bot, including cross-border transfers of User Information across international borders, supported by an approved adequacy mechanism where required. Customer represents and warrants that all such consents have been or will be obtained prior to any individual becoming a User.
2.3.6 Users’ Compliance. Customer will be fully responsible for Users’ and any Third-Party Integrator’s compliance with this Agreement, and any breach of this Agreement by a User or a Third-Party Integrator shall be deemed to be a breach by Customer. Enterprise Bot’s relationship is with Customer and not individual Users or Third-Party Integrators, and Customer is solely responsible (and Enterprise Bot has no responsibility to Customer or to any third party) for any breach of Customer’s obligations under this Agreement, any applicable third party contract or terms of service, or any applicable law or regulation, as well as for the consequences thereof (including any loss or damage which Enterprise Bot or any third party may suffer). Customer will address all claims raised by Users or Third-Party Integrators directly. Customer will enter into written agreements with any Third-Party Integrator that include the following terms: (a) Third-Party Integrator will be bound by the terms of this Agreement, (b) Enterprise Bot will be a third-party beneficiary to such agreement, and (c) Third-Party Integrator agrees, to the extent permitted by applicable law, to waive any and all claims directly against Enterprise Bot related to the Services.
2.3.7 Non-Enterprise Bot Products and Services. Enterprise Bot or third parties may make available to Customer or Users optional third-party applications, services or products, which are licensed by their provider to Customer or Users, for use in connection with the Services, including, for instance, Non-Enterprise Bot Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Enterprise Bot provider, product or service is solely between Customer and the applicable Non-Enterprise Bot provider. Enterprise Bot does not warrant or support Non-Enterprise Bot Applications or other Non-Enterprise Bot products or services, unless expressly provided otherwise in an Order Form. Enterprise Bot is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Enterprise Bot Application or its provider. Enterprise Bot makes no warranties of any kind and assumes no liability whatsoever for Customer’s or User’s use of such products or services. Customer agrees to waive any claim against Enterprise Bot with respect to any such products or services.
2.4 Security and Data Privacy
2.4.1 Protection of Customer Data. Enterprise Bot will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by Enterprise Bot, (a) the terms of the data processing addendum at https://enterprisebot.ai/legal/dpa(“DPA”) are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA, and (b) the EU-US and/or Swiss-US Privacy Shield, and/or the Standard Contractual Clauses shall apply, as further set forth in the DPA. For the purposes of the Standard Contractual Clauses, Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and an applicable Affiliate's execution of an Order Form, shall be treated as its execution of the Standard Contractual Clauses and Appendices. Enterprise Bot shall not be responsible for loss of data transmitted on networks not owned or operated by Enterprise Bot, including the Internet.
2.4.2 Use of Services Attributes and Anonymized Data. Enterprise Bot may process, use, share and reproduce certain Services Attributes for internal business purposes, for example, to support proper functioning of the Services, to provide Customer with support services and to investigate fraud, abuse or violations of this Agreement. Enterprise Bot may also process, use, share, and reproduce Customer Data in the form of Anonymized Data in any way, for example, to support improvement and enhancement of the Services. “Services Attributes” means Services usage data related to Customer’s account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics. “Anonymized Data” means Services Attributes and/or Customer Data with any personally identifiable information (such as, names, addresses, phone numbers, etc.) removed.
3. Provisions relating to the SDK
3.1 License to the SDK
3.1.1 SDK License. The terms in the section “License to the SDK” apply in addition to all other terms of this Agreement in case Customer purchases a license to the SDK. Subject to (a) Customer purchasing such license under an Order Form, and (b) Customer’s compliance with the terms and conditions of this Agreement, Enterprise Bot hereby grants Customer a worldwide, non-exclusive, limited-term, non-transferable and non-sublicensable (except as otherwise permitted under this Agreement) license to use and reproduce the SDK for installation on Customer owned development stations for use by Customer employees and contractors, solely for the purposes of developing and testing Customer Applications. The SDK may contain certain open source software and is licensed pursuant to the applicable open source licenses specified in the Documentation and is provided WITHOUT ANY WARRANTY except that usage of the SDK in accordance with the Documentation will allow the SDK to connect to the Services. The SDK is so licensed, not sold. Enterprise Bot reserves the right, with reasonable notice to Customer, to audit Customer’s use of the SDK no more than once each calendar year to ensure compliance with the terms of the Agreement.
3.1.2 Restrictions. Customer has no right to use or reproduce the SDK except as expressly set forth in the section “SDK License” above. Customer acknowledges and agrees that portions of the SDK, including but not limited to code in any form (e.g. source code or precompiled code), if any, and the specific design and structure of individual modules or programs, constitute or contain trade secrets or other intellectual property of Enterprise Bot and its licensors. Except to the extent such restrictions may be prohibited by applicable law, Customer shall not (a) allow any third party to use or have access to the SDK or Documentation, except for an outsourced service provider who agrees to be bound by this Agreement, solely for the purposes of building a Customer Application; (b) sell, resell, license, sublicense, distribute, make available, rent or lease the SDK, or include the SDK in a service bureau or outsourcing offering, except (subject to the terms of this Agreement) sublicense to a Third-Party Integrator to the extent necessary to distribute a Customer Application; (c) modify, copy, or create derivative works based on the SDK or any part, feature, function or user interface thereof, or on any of Enterprise Bot’s intellectual property rights; (d) disassemble, reverse engineer, or decompile the SDK or use it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions of the SDK, (3) copy any ideas, features, functions or graphics of the SDK, or (4) determine whether the SDK is within the scope of any patent, (e) make the SDK available over the Internet or similar networking technology, (f) use the SDK to perform comparisons or other “benchmarking” activities against products that are competitive with the SDK or the Services. Customer will reproduce all of Enterprise Bot’s and its licensor’s copyright notices and any other proprietary rights notices on all copies of the SDK that Customer makes hereunder. Without limiting any other remedies under this Agreement, if Customer’s use of the Services does not conform with Customer’s subscription under the applicable Order Form, reasonable restrictions may be placed on Customer’s account until any non-conformance is adequately mitigated or eliminated by Customer.
4. Provisions Common to the Services and the SDK
4.1 Fees and Payment
Form, (a) all fees are quoted in Swiss Francs, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities or subscription levels purchased (if applicable) cannot be decreased during the relevant subscription term.
4.1.2 Invoicing and Payment. Customer will provide Enterprise Bot with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Enterprise Bot. If Customer provides credit card information to Enterprise Bot, Customer authorizes Enterprise Bot to charge such credit card for all amounts listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the section “Term and Termination” below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Enterprise Bot will invoice Customer in advance via email and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Enterprise Bot and notifying Enterprise Bot of any changes to such information.
4.1.3 Overdue Charges. If any invoiced amount is not received by Enterprise Bot by the due date, then without limiting Enterprise Bot’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Enterprise Bot may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section below.
4.1.4 Suspension and Acceleration. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Enterprise Bot to charge to Customer’s credit card), Enterprise Bot may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Customer’s use of the Platform until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Enterprise Bot will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Notices” section below for billing notices, before suspending services to Customer.
4.1.5 Payment Disputes. Enterprise Bot will not exercise its rights under the “Overdue Charges” or “Suspension and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
4.1.6 Taxes. Enterprise Bot's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Enterprise Bot has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Enterprise Bot will invoice Customer and Customer will pay that amount unless Customer provides Enterprise Bot with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Enterprise Bot is solely responsible for taxes assessable against it based on its income, property and employees.
4.1.7 Purchases Through Resellers. If Customer enters into an Order Form for the Platform from a Reseller, any terms herein related to ordering, invoicing, refunds or credits do not apply. Customer must establish such terms with Reseller. For the avoidance of doubt, nothing herein affects suspension rights or deactivation rights for Enterprise Bot or a Reseller provided for in this Agreement.
4.2 Proprietary Rights
4.2.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Enterprise Bot, its Affiliates, and its licensors reserve all of their right, title and interest in and to the Platform, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
4.2.2 Customer Data. As between Enterprise Bot and Customer, all Customer Data is owned by Customer.
4.2.3 License by Customer to Use Feedback. Customer grants to Enterprise Bot and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Enterprise Bot’s or its Affiliates’ services.
4.3.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Enterprise Bot includes the Platform, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Enterprise Bot services.
4.3.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Enterprise Bot may disclose the terms of this Agreement and any applicable Order Form to a subcontractor to the extent necessary to perform Enterprise Bot’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
4.3.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
4.3.4 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the section “Confidentiality” (including subsections), 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.
4.4 Warranties and Disclaimers
4.4.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
4.4.2 Enterprise Bot Warranties. Enterprise Bot warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Enterprise Bot will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Enterprise Bot Applications” section above, Enterprise Bot will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
4.4.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SDK IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.
4.5 Mutual Indemnification
4.5.1 Indemnification by Enterprise Bot. Enterprise Bot will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any the Platform infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Enterprise Bot in writing of, a Claim Against Customer, provided Customer (a) promptly gives Enterprise Bot written notice of the Claim Against Customer, (b) gives Enterprise Bot sole control of the defense and settlement of the Claim Against Customer (except that Enterprise Bot may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Enterprise Bot all reasonable assistance, at Enterprise Bot’s expense.
If Enterprise Bot receives information about an infringement or misappropriation claim related to a Service, Enterprise Bot may in its discretion and at no cost to Customer (a) modify the Services so that they are no longer claimed to infringe or misappropriate, (b) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (c) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. Enterprise Bot’s obligations under this section do not apply to Customer’s use of the Platform under a free trial.
The above defense and indemnification obligations do not apply if (a) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (b) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Enterprise Bot, if the Services or use thereof would not infringe without such combination; (c) a Claim Against Customer arises from Services under an Order Form for which there is no charge (including free trials); (d) a Claim against Customer arises from a Non-Enterprise Bot Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms, (e) a Claim against Customer results in whole or in part from Customer specifications or modifications, (f) Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
4.5.2 Indemnification by Customer. Customer will defend Enterprise Bot and its Affiliates against any claim, demand, suit or proceeding made or brought against Enterprise Bot by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-Enterprise Bot Application provided by Customer, (c) the combination of a Non-Enterprise Bot Application provided by Customer and used with the Services, or (d) any Customer Application infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Enterprise Bot”), and will indemnify Enterprise Bot from any damages, attorney fees and costs finally awarded against Enterprise Bot as a result of, or for any amounts paid by Enterprise Bot under a settlement approved by Customer in writing of, a Claim Against Enterprise Bot, provided Enterprise Bot (i) promptly gives Customer written notice of the Claim Against Enterprise Bot, (ii) gives Customer sole control of the defense and settlement of the Claim Against Enterprise Bot (except that Customer may not settle any Claim Against Enterprise Bot unless it unconditionally releases Enterprise Bot of all liability), and (iii) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Enterprise Bot arises from Enterprise Bot’s breach of this Agreement, the Documentation or applicable Order Forms.
4.5.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
4.6 Limitation of Liability
4.6.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE PLATFORM GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
4.6.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
4.7 Term and Termination
4.7.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
4.7.2 Term of Purchased Subscriptions. The subscription term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, the following will apply with regard to renewal pricing: (a) the fees for each renewal subscription term will be equal to the fees for the immediately prior subscription term, plus a price increase of three percent (3%) per year; (b) notwithstanding, renewal of promotional or one-time priced subscriptions will be at Enterprise Bot’s applicable list price in effect at the time of the applicable renewal; (c) notwithstanding, any renewal in which subscription volume or subscription length has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
4.7.3 Termination. A party may terminate this Agreement for cause (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.7.4 Effect of Termination. Upon termination or expiration of this Agreement, the rights and licenses granted to Developer under this Agreement will automatically terminate, and Customer will uninstall and delete, from all Customer desktop, mobile, server, web and other environments, any Enterprise Bot provided software related to the Platform, as well as any other Confidential Information in Customer’s possession or control. This includes managed packages or other software that has been installed in Customer environments. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Enterprise Bot will make Customer Data available to Customer for export or download in an industry-standard format. After such 30-day period, Enterprise Bot will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
4.7.5 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Enterprise Bot will refund Customer any prepaid fees covering the remainder of the subscription term of all Order Forms after the effective date of termination. If this Agreement is terminated by Enterprise Bot in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the subscription term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Enterprise Bot for the period prior to the effective date of termination.
4.7.6 Surviving Provisions. The section “Provisions Common to the Services and the SDK” (including all subsections) shall survive any termination or expiration of this Agreement.
4.8 General Provisions
4.8.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
4.8.2 Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms executed hereunder, constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
4.8.3 Order of Precedence. In the event of any conflict between the provisions in this Agreement and any exhibit or addendum hereto, or Order Form executed hereunder, the terms of this Agreement shall prevail to the extent of any inconsistency, except with regard to any provision of any exhibit, addendum or Order Form that specifically identifies a conflicting provision of this Agreement and states that the conflicting provision of this Agreement does not prevail.
4.8.4 Modification. Unless otherwise specified in the preamble of this Agreement, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
4.8.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
4.8.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
4.8.7 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
4.8.8 Cumulative Remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
4.8.9 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
4.8.10 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, the sections “Effect of Termination” and “Refund or Payment upon Termination” will apply. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
4.8.11 Notices. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.
4.8.12 Governing Law. This Agreement and all claims arising from it shall be exclusively governed by the law of the Swiss Confederation to the exclusion of the provisions of Private International Law (PIL) and the UN Convention on Contracts for the International Sale of Goods (CISG).
4.8.13 Venue. Zug, Switzerland is agreed as the exclusive place of jurisdiction for all disputes arising in connection with the fulfillment of this contractual relationship. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.