Platform Subscription Agreement
This Platform Subscription Agreement (this “Agreement”) governs the company or entity identified on the applicable Order Form (“Customer”) and its use of the StepoAI Platform as made available by StepoAI, Inc. (“StepoAI”). This Agreement includes and incorporates the Order Form to which this Platform Subscription Agreement is attached, and any additional Order Forms incorporated by reference. StepoAI and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.
DEFINITIONS.
“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the StepoAI Platform, including, without limitation, any usage data or trends with respect to the StepoAI Platform.
“Authorized User” means an employee or contractor whom Customer has authorized to Use the StepoAI Platform.
“StepoAI IP” means the StepoAI Platform, the underlying software provided in conjunction with the StepoAI Platform, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the StepoAI Platform, Documentation, Aggregate Data, and Output, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.
“StepoAI Platform” means StepoAI’s proprietary artificial intelligence-based Software-as-a-Service platform for occupational safety and health professionals, including updates and enhancements, as more particularly described or identified in the applicable Order Form.
“Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the StepoAI Platform or to StepoAI in connection with Customer’s Use of the StepoAI Platform, but excluding, for clarity, Aggregate Data, Output, and any other information, data, data models, content or materials owned or controlled by StepoAI and made available through or in connection with the StepoAI Platform.
“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by StepoAI to Customer (including any revised versions thereof) relating to the StepoAI Platform, which may be updated from time to time upon notice to Customer.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the StepoAI Platform based on Customer’s subscription tier.
“Order Form” means a mutually executed order form or other mutually agreed upon ordering document which references this Agreement and sets forth the applicable StepoAI Platform to be provided by StepoAI.
“Output” means any AI-generated responses to Customer Materials that are generated by the StepoAI Platform.
“Person” means any individual, corporation, partnership, trust, limited liability entity, association, governmental authority or other entity.
“Use” means to use and/or access the StepoAI Platform in accordance with this Agreement and the Documentation.
STEPOAI PLATFORM; ACCESS AND USE.
StepoAI Platform. Subject to the terms and conditions of this Agreement, StepoAI hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right to Use the StepoAI Platform during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.
Voice Agent Feature. As part of the Services, StepoAI may provide a voice agent feature (“Voice Agent”) that enables Customer, its Affiliates, and their respective Authorized Users, customers, and subcontractors (collectively, “End Users”) to: (i) initiate inbound calls or text messages to a designated phone number, and send emails, to interact with the Voice Agent for purposes related to occupational safety and health management, such as asking safety questions or requesting assistance; (ii) receive outbound calls, text messages (including images), or emails from the Voice Agent for purposes specified in the Order Form, such as safety updates, work-related assistance, or other activities within the scope of the Services. Customer further acknowledges and agrees that it is solely responsible for the content of any communications sent via the Voice Agent, and for ensuring such communications comply with all applicable laws, including but not limited to consumer protection, privacy, marketing, and telecommunications laws. Customer acknowledges and agrees that the Voice Agent may initiate outbound communications to phone numbers, email addresses, or other contact points provided by Customer or its End Users as part of the Services. By executing an Order Form or using the Services, Customer grants StepoAI express prior consent, on behalf of itself and its End Users, to send and receive such communications as part of the Services. Customer represents and warrants that it has obtained (or will obtain) all necessary consents, permissions, and authority from its End Users to allow these communications, in compliance with applicable laws (including, but not limited to, TCPA, CAN-SPAM Act, GDPR).
Consent Assistance Features. To assist Customer in obtaining and managing End User consent, StepoAI will provide features such as: (i) customizable consent templates and notices within the StepoAI Platform or Documentation for Customer to distribute to End Users; (ii) in-app or email notification tools to inform End Users of the Voice Agent’s communication capabilities and obtain opt-in consent where required; (iii) opt-out mechanisms (e.g. texting "STOP" to the Voice Agent’s number or replying "UNSUBSCRIBE" to emails) for End Users to revoke consent, with such revocations tracked and reported to Customer via the StepoAI Platform.
Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the StepoAI Platform in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the StepoAI Platform or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the StepoAI Platform, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the StepoAI Platform or data (including personal data) available via the StepoAI Platform to any other Person, or otherwise allow any Person to use the StepoAI Platform for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the StepoAI Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the StepoAI Platform, or any data or content contained therein or transmitted thereby; (vii) access or search the StepoAI Platform (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or StepoAI Platform features provided by StepoAI for use expressly for such purposes; (viii) use the StepoAI Platform, Documentation or any other StepoAI Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the StepoAI Platform; (ix) use the StepoAI Platform to transmit, distribute or store material that contains a virus, worm, Trojan horse, or other component harmful to the StepoAI Platform, any other network or equipment, or other users; and (x) use the StepoAI Platform to transmit or distribute material containing fraudulent offers for goods or services, or any advertising or promotional materials that contain false, deceptive, or misleading statements, claims, or representations.
Authorized Users. Customer will not allow any Person other than Authorized Users to Use the StepoAI Platform. Customer may permit Authorized Users to Use the StepoAI Platform, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the StepoAI Platform. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the StepoAI Platform in accordance with customary security protocols, and will promptly notify StepoAI if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the StepoAI Platform may only be accessed and used by the specific Authorized User for whom such account is created.
Third-Party Services. Certain features and functionalities within the StepoAI Platform may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the StepoAI Platform. StepoAI does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the StepoAI Platform or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the StepoAI Platform.
Reservation of Rights. Subject to the limited rights expressly granted hereunder, StepoAI reserves and, as between the Parties will solely own, the StepoAI IP and all rights, title and interest in and to the StepoAI IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.
Feedback. From time to time, Customer or its employees, contractors, or representatives may provide StepoAI with suggestions, comments, feedback or the like with regard to the StepoAI Platform (collectively, “Feedback”). Customer hereby grants StepoAI a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with StepoAI’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the StepoAI Platform.
FEES AND PAYMENT.
Fees. Customer will pay StepoAI the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. StepoAI reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email). Except as otherwise provided in the relevant Order Form, StepoAI will issue annual invoices in advance each year to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.
Payments. Payments due to StepoAI under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by StepoAI or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and StepoAI may suspend StepoAI Platform until all payments are made in full. Customer will reimburse StepoAI for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to StepoAI hereunder, other than any taxes imposed on StepoAI’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to StepoAI hereunder, Customer will pay an additional amount, so that StepoAI receives the amounts due to it hereunder in full, as if there were no withholding or deduction.
CONFIDENTIAL INFORMATION.
As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the StepoAI Platform and the Documentation will be deemed Confidential Information of StepoAI. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.
The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that StepoAI may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.
Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.
Data Security. The Parties will use commercially reasonable efforts and take no less than industry standard precautions to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.
SUPPORT AND SERVICE LEVELS.
Support. StepoAI will provide Customer with reasonable technical support for the StepoAI Platform in accordance with the support terms set forth in Exhibit A.
Service Levels. Subject to the terms and conditions of this Agreement, StepoAI will use commercially reasonable efforts to make the StepoAI available in accordance with the service levels set forth in Exhibit A. Customer acknowledges and agrees that the service levels are performance targets only and any failure of StepoAI to meet any service level will not result in any breach of this Agreement or any payment or liability of StepoAI to Customer.
CUSTOMER MATERIALS AND DATA.
Ownership of Customer Materials. StepoAI acknowledges that, as between Customer and StepoAI and except as set forth in Section 5(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
License Grant. Customer hereby grants StepoAI a non-exclusive, worldwide, royalty-free right and license to use, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the StepoAI Platform.
Representations and Warranties of Customer Materials. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data or protected health information provided by or on behalf of Customer or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) StepoAI’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
REPRESENTATIONS AND WARRANTIES.
Mutual. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
INDEMNIFICATION.
StepoAI Platform Indemnification. Subject to Section 7(b), (i) StepoAI will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the StepoAI Platform infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by StepoAI (including reasonable attorneys’ fees) resulting from such Claim.
Exclusions. StepoAI’s obligations under Sections 7(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the StepoAI Platform that have been provided by StepoAI; (iv) modifications to the StepoAI Platform by anyone other than StepoAI; (v) combinations of the StepoAI Platform with software, data or materials not provided by StepoAI; or (vi) Customer’s continued Use of a prior version of the StepoAI Platform that has been superseded by a non-infringing version subsequently released by StepoAI.
IP Remedies. If StepoAI reasonably believes the StepoAI Platform (or any component thereof) could infringe any third party’s Intellectual Property Rights, StepoAI may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the StepoAI Platform, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If StepoAI determines that neither alternative is commercially practicable, StepoAI may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, StepoAI will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 7 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the StepoAI Platform.
Customer Indemnification. Customer will defend StepoAI against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; (iii) any alleged violation of recording or wiretapping laws; and (iv) use of the StepoAI Platform by Customer or its Authorized Users in violation of this Agreement (including, without limitation, in violation of any Documentation or in breach of the license restrictions in Section 2(d)) or in violation of applicable law, and in each case, will indemnify and hold harmless StepoAI against any damages and costs awarded against StepoAI or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
DISCLAIMERS.
General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE STEPOAI PLATFORM, AND OTHER STEPOAI IP ARE PROVIDED ON AN “AS IS” BASIS, AND STEPOAI MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE STEPOAI IP, THE STEPOAI PLATFORM, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STEPOAI HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, STEPOAI HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE STEPOAI PLATFORM WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
AI/ML Disclaimer. DUE TO THE NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, ANY OUTPUT MAY NOT BE UNIQUE AND THE STEPOAI PLATFORM MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR CUSTOMER OR A THIRD PARTY. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE STEPOAI PLATFORM MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE CUSTOMER MATERIALS INPUTTED INTO THE STEPOAI PLATFORM AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, STEPOAI WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR OR IN CONNECTION WITH ANY CUSTOMER MATERIALS OR OUTPUT, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, OUTPUT, OR THEIR USE. CUSTOMER SHALL EVALUATE THE CONTENT, NATURE, TONE AND ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR THE APPLICABLE USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT.
Medical Disclaimer. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE STEPOAI PLATFORM IS A TOOL OFFERED FOR INFORMATIONAL PURPOSES ONLY, AND THAT CUSTOMER AND ITS USERS ARE RESPONSIBLE FOR USING PROFESSIONAL JUDGMENT TO EVALUATE AND CONFIRM THE INFORMATION OBTAINED OR STORED ON THE STEPOAI PLATFORM, INCLUDING ANY OUTPUT. STEPOAI DOES NOT PROVIDE MEDICAL ADVICE AND DOES NOT MAKE DIAGNOSTIC, TREATMENT, OR OTHER CLINICAL DECISIONS OR JUDGMENTS.
LIMITATIONS OF LIABILITY.
Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE STEPOAI IP OR THE PROVISION OF THE STEPOAI PLATFORM, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Total Liability. IN NO EVENT WILL STEPOAI’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE STEPOAI IP, OR THE PROVISION OF THE STEPOAI PLATFORM EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO STEPOAI IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT STEPOAI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 9 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN STEPOAI AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.
TERM AND TERMINATION.
Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
Survival. The following Sections will survive termination or expiration of this Agreement for any reason: Sections 2(e), 2(f), 3, 4, 7, 8, 9, 10(c), 10(d), and 12.
Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at StepoAI’s sole option, all StepoAI Confidential Information in its possession or control, including permanent removal of such StepoAI Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at StepoAI’s request, certify in writing to StepoAI that the StepoAI Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.
TRADEMARKS. Customer hereby grants StepoAI a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the StepoAI Platform; and (ii) StepoAI’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of StepoAI and in case studies. All goodwill and improved reputation generated by StepoAI’s use of the Customer Marks inures to the exclusive benefit of Customer. StepoAI will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.
GENERAL.
Entire Agreement. This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. No term of any Order Form will be deemed to amend the terms of this Agreement unless an Order Form references a specific provision in this Agreement and provides that the Order Form is amending only that specific provision of this Agreement and only with respect to the Services performed pursuant to such Order Form. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.
Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form (or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 12(b)). Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.
Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.
Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.
Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Washington without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in King County, Washington, and the Parties irrevocably consent to the personal jurisdiction and venue therein.
Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, acquisition, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.
Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(d), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.
Subcontracting. StepoAI may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that StepoAI remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), StepoAI will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of StepoAI.
Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.
Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement
EXHIBIT A
SERVICE LEVELS AND SUPPORT
- Service Levels. StepoAI will use commercially reasonable efforts to make the StepoAI Platform available to Customer 99.9% of the time each month during the Term, except for excused downtime, which, for purposes of this Agreement, means (i) planned downtime (with reasonable advance notice to Customer) of the StepoAI Platform; (ii) emergency downtime of the StepoAI Platform; and (iii) any unavailability of the StepoAI Platform caused by circumstances beyond StepoAI’s reasonable control.
- Support. StepoAI will provide reasonable technical support to Customer by electronic mail in connection with its Use of the StepoAI Platform on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Eastern Time, with the exception of U.S. federal holidays (“Support Hours”), subject to the following conditions: (i) prior to initiating any support request, Customer (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (ii) Customer will reasonably cooperate with StepoAI support staff as needed to resolve the issue.
Customer may initiate a helpdesk ticket during Support Hours by emailing support@stepo.ai