ASKTIM ANALYTICS, INC. (dba. Soru.ai) TERMS OF USE

THIS AGREEMENT AND OUR PRIVACY POLICY [https://soru.ai/privacy-policy] GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES AND USE OF OUR WEBSITE, SORU.AI, OPERATED BY ASKTIM ANALYTICS, INC. (“COMPANY”) USE OF THE SERVICES IS EXPRESSLY CONDITIONED ON THE ACCEPTANCE OF THIS AGREEMENT.  BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES AND REQUIRES ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

COMPANY MAY MODIFY THESE TERMS OR ANY ADDITIONAL TERMS THAT APPLY TO A SAAS SERVICE OR OTHER SERVICE TO, FOR EXAMPLE, REFLECT CHANGES TO THE LAW OR CHANGES TO OUR SERVICES. YOU  SHOULD LOOK AT THE TERMS REGULARLY. COMPANY WILL POST NOTICE OF MODIFICATIONS TO THESE TERMS ON THIS PAGE. COMPANY WILL POST NOTICE OF MODIFIED ADDITIONAL TERMS IN THE APPLICABLE SERVICE. CHANGES WILL NOT APPLY RETROACTIVELY AND WILL BECOME EFFECTIVE NO SOONER THAN FOURTEEN DAYS AFTER THEY ARE POSTED. HOWEVER, CHANGES ADDRESSING NEW FUNCTIONS FOR A SERVICE OR CHANGES MADE FOR LEGAL REASONS WILL BE EFFECTIVE IMMEDIATELY. IF YOU DO NOT AGREE TO THE MODIFIED TERMS FOR A SERVICE, YOU SHOULD DISCONTINUE YOUR USE OF THAT SERVICE. IF THERE IS A CONFLICT BETWEEN THESE TERMS AND THE ADDITIONAL TERMS, THE ADDITIONAL TERMS WILL CONTROL FOR THAT CONFLICT.

THESE TERMS CONTROL THE RELATIONSHIP BETWEEN COMPANY AND YOU. THEY DO NOT CREATE ANY THIRD PARTY BENEFICIARY RIGHTS.

IF YOU DO NOT COMPLY WITH THESE TERMS, AND COMPANY DOES NOT RESPOND OR TAKE ACTION RIGHT AWAY, THIS DOESN’T MEAN THAT COMPANY IS GIVING UP ANY RIGHTS THAT IT MAY HAVE  OR THAT COMPANY WILL NOT TAKE ACTION IN THE FUTURE.

1. Key Definitions. “You,” “your” and “Customer” refers to the individual or entity that has executed this Agreement via the Order Form and ordered SaaS Services from AskTim Analytics, Inc. (“Company”) or an authorized reseller. “Customer Data” means electronic data and information submitted by or for Customer to the Purchased Services or collected and processed by or for Customer using the Purchased Services, excluding Non-Company Applications. “Law” refers to any applicable statute, regulation, rule, ordinance or ruling by a federal, state or local government. “Non-Company Applications” means a Web-based, mobile or offline software application or service, or service that is provided by Customer or a third party and interoperates with a Service, including, for example, an application that is developed by or for Customer, a third party service that a customer may have access to, subscribe to, or obtain a license to, a third party service that a customer may have access to, subscribe to, or obtain a license to. “Order Form” refers to an online or offline form issued by Company containing the terms of payment and specifications of the SaaS Services provided under this Agreement detailing fees, deliverables and other related terms and agreed to by both Customer and Company. An Order Form shall be issued pursuant to the terms and conditions of this Agreement, shall require acceptance of this Agreement as a condition to use the Services and shall be accepted or executed by Customer. The term “Professional Services” means configuration and installation services provided by Company to Customer. The term “SaaS Service” or “SaaS Services” refers to the Company Software-as-a- Service subscription that are only ordered by Customer under an Order Form and made available online by Company, including associated offline components, as described in the Documentation, and which must be accompanied by an Order Form executed by Company and Customer. “User” means an individual who is authorized by Customer to use a SaaS Service on Customer’s behalf, and to whom Customer (or Company at Customer’s request) has supplied a user identification and password. Users may include, for example, Customer employees, consultants, contractors and agents, and third parties with which Customer transacts business.

2. Applicability. This Agreement is valid for the Order Form which this Agreement accompanies, and any other orders issued pursuant to the terms of this Agreement and which incorporates such terms by reference.

3. Incorporated Terms. This Agreement includes this Master Agreement, all Order Forms, Company’s Use Policies [https://soru.ai/terms-of-use#use-policies] and Professional Services Addendum [https://soru.ai/terms-of-use#professional-services-addendum] (collectively the “Agreement”), the terms of which are incorporated by reference herein. All capitalized terms in this Master Agreement shall have the same meaning in all other documents comprising the Agreement. Customer Agrees that Customer will use, and will ensure that its Users use, the SaaS Services only in compliance with the Company Use Policies set forth here[https://soru.ai/terms-of-use#use-policies]. Any provision of Professional Services by Company shall be set forth in the Order Form and shall be subject to the Professional Services Addendum located here [https://soru.ai/terms-of-use#professional-services-addendum]. Company has the right to amend its privacy policy, Terms of Service and Use Policy at any time effective upon notice to Customer except that it may not amend any service level obligations to Customer without the mutual agreement of the parties.

4. Payments. 

4.1 Payment. In consideration of the SaaS Services and Professional Services to be rendered pursuant to this Agreement and Order Form, Fees shall be paid as set forth in each applicable Order Form. Unless otherwise agreed by the parties, payment for SaaS Services and Professional Services shall be due thirty (30) days from the date or dates set forth in the applicable Order Form or, if applicable, the date of issuance of the invoice issued therefrom. Reasonable expenses shall be payable pursuant to the terms set forth in the applicable Order Form. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company promptly of any changes to such information. At Company’s option in its sole discretion, Company may choose to accept payment through a system with a valid purchase order or alternative document reasonably acceptable to Company. Additionally, in Company’s sole discretion, Company may require payment via automated credit card or electronic funds transfer authorization. In such case, Company will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Fees for SaaS Services are based on SaaS Services purchased and not actual usage. Except as expressly provided in this Agreement, payment obligations are non-cancelable and fees paid are non-refundable and SaaS Services purchased cannot be decreased during the relevant subscription term. Customer agrees to pay any sales, value-added or other similar taxes imposed by applicable law that Company must pay based on the SaaS Services or Professional Services ordered, except for taxes based on Company’s income or taxes for employment of its employees. If Company has the legal obligation to pay or collect Taxes for which Customer are responsible under this Section 4.1, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees that it has not relied on the future availability of any SaaS Services or updates in entering into the payment obligations in an Order Form.

4.2 Late Payment. If any undisputed invoiced amount is not received by Company by the due date, then without limiting Company 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, (b) Company may, upon written notice to Customer, condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.1 of the Master Agreement and/or (c) may, without limiting Company other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Company services to Customer until such amounts are paid in full. Company will give Customer at least 10 calendar days’ prior notice before suspending services to Customer.

5. Intellectual Property and Licensing

5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Company and Company licensors reserve and retain all of their right, title and interest in and to SaaS Services and Professional Services, including all of Company/their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

5.2. License for Services. Upon Company’s acceptance of the Order Form and for the duration of the period set forth in the Order Form, Company grants to Customer a worldwide, limited-term license, under Company’s applicable intellectual property rights and licenses, to use the SaaS Services licensed to Customer pursuant to Order Forms and the Agreement.

5.3. License by Customer to Host Customer Data and Applications. Customer grants Company and Company Affiliates a worldwide, limited-term license to access its data (including, without limitation, Customer Data), networks and systems for the purposes of providing SaaS Services, whether owned or operated by Customer or by third parties contracting with Customer, host, copy, transmit, process, analyze, and display Customer Data, and any Non-Company Applications and program code created by or for Customer using a Service, as necessary for Company to provide SaaS Services in accordance with this Agreement. Subject to the limited licenses granted herein, Company acquires no right, title or interest from Customer or Customer licensors in or to Customer Data or any Non-Company Application or program code. Subject to any restrictions by Law, Customer agrees that Company may use anonymized and de-identified data based on the Customer Data solely for the purposes of data analysis and improving customer service.

5.4. License by Customer to Use Feedback. Customer grants to Company and Company Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into SaaS Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of SaaS Services.

5.6. Ownership of SaaS Services, changes to Company Privacy Policies, and External Facing Website Policies and Subscription Terms. With the exception of Customer Data, Customer acknowledges that as between Company and Customer, Company owns all right, title and interest in the SaaS Services, including any improvements or modifications thereto. Company reserves the right to change, Company Privacy Policies, Terms of Service, Company Use Policy or External Facing Website policies at any time. Company will provide reasonable written notice to Customer of any material changes to the aforementioned documents. Notwithstanding the foregoing, it is the responsibility of Customer to periodically check the the aforementioned documents to keep up to date on any changes to their terms, and Customer hereby releases Company from any damages or other liability or dispute arising, whether directly or indirectly, from Customer’s failure in this regard.

5.7. Limitations on access and Changes to Functionality. Company reserves the right to reduce, limit or throttle the number of Users, amount of data, access or throughput in connection with SaaS Services in order to protect the stability and security of the SaaS Services as long as i) Company notifies Customer so they may work together to address the issue and ii) it does not affect the core functionality of SaaS Service. Company reserves the right, in its sole discretion to alter or delete any functionality contained in SaaS Services at any time. In the event such changes materially reduces a core function of SaaS Service (“Critical Changes”), then Customer shall notify Company of such concern so that the parties can work together in good faith to address those concerns, if such Critical Change cannot be addressed to the reasonable satisfaction of both parties within thirty (30) days, then Customer may terminate the Agreement and any Order Forms.

6. CONFIDENTIALITY

6.1. 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 shall include, without limitations, any (a) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, roadmaps, computer source and object code, patent applications, and other materials and concepts relating to Company’s and Customer’s products, services, processes, technology or other intellectual property rights; (b) information, ideas or materials of a business nature, such as non-public financial information; information regarding profits, costs, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; and marketing and sales plans and forecasts; (c) all personal property, including, without limitation, all books, manuals, records, reports, notes, contracts, lists, blueprints and other documents or materials, or copies thereof, received by Company from Customer in the course of Company’s rendering of SaaS Services to Customer, including, without limitation, records and any other materials pertaining to Work Product; and (d) the terms and conditions of this Agreement, including all Order Forms. Company and Customer Trade Secrets shall be considered Confidential Information. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

6.2. Protection of 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) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to 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 no less stringent 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 Section 6.2. “Affiliates” shall mean Customer or Company as applicable, and their subsidiaries, parents, and companies co-owned by parents as well as their employees, contractors, officers, directors, agents, attorneys and accountants.

6.3. 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.

6.4. Injunctive Relief. The Parties agree that the disclosing Party will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of this Agreement and that the Disclosing Party shall be entitled to obtain injunctive relief against a threatened breach or continuation of any such breach and, in the event of such breach, an award of actual and exemplary damages from any court of competent jurisdiction.

7. Provision of SaaS Services and Service Levels.

7.1 SaaS Service Availability. Upon Company acceptance of the Order Form and for the duration of the period set forth in the Order Form and solely with respect to SaaS Services provided in exchange for Fees, Company will (a) make SaaS Services available to Customer pursuant to the Agreement, and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to Customer at no additional charge, and (c) use commercially reasonable efforts to make the online Purchased Services available 99% of the time, 24 hours a day, 7 days a week calculated monthly, except for: (i) planned downtime (of which We shall give at least 4 hours electronic notice and which We shall schedule to the extent practicable during the weekend hours between 6:00 p.m. Friday and 3:00 a.m. Monday Pacific time), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, but not limited to Force Majeure events, strikes or other labor problems (other than one involving Our employees), Internet service provider failure or delay, Non-Company Application, or denial of service attacks. Company will provide response and workaround/fix target times as set forth in the Company Use Policy Service Levels as set forth here [https://soru.ai/terms-of-use#use-policies].

7.2 Security. Company will maintain reasonable 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, reasonable measures for preventing access, use, modification or disclosure of Customer Data by Company personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as Customer expressly permits in writing.  Subject to other requirements under law and Customer’s duties and obligations under the Company Use Policy, Company and Customer shall use, transmit and protection Customer Data that is personal or sensitive information in accordance with their respective privacy policies.

7.3 Data Protection: Data Breach.  In the event either parties become aware of the unauthorized release of Customer Data comprising “Personal Data” as defined in the European Union General Data Privacy Regulations, the parties agree to promptly, but no later than 72 hours after discovery of such breach notify each other of such breach, with such notice, a) describing the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned; b) communicating the name and contact details of the data protection officer or other contact point where more information can be obtained; c) describing the likely consequences of the personal data breach; and d) describing the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

7.4 Data Protection: Cooperation.  Customer and Company shall reasonably cooperate to comply with data privacy, security and data breach regulations as applicable to the SaaS Services, including, but not limited to  (z) executing and incorporating by reference into this Agreement the appropriate EU Model Contract Clauses for data exporting and processing where applicable; (y) cooperating with any governmental inquiries, audits, data protection impact assessments or documentation requirements required by Law; (x) ensuring that Customer Data is used, transmitted and stored in accordance with applicable Law.  Customer shall not undertake any acts or omissions that would place Company in violation of any applicable Laws.  

7.5  Data Protection by Sub-Processors. Company may subcontract elements of the SaaS Services provided that (i) Company is not relieved of its obligations to Customer under this Agreement (ii) such subcontracts are appropriately bound by confidentiality terms substantially similar to those contained in this Agreement; (iii)  bound by contract and Law to comply with data privacy, security, transfer and data breach Laws; (vi) only access and use Customer Data solely in connection with the provision of the SaaS Services and (v) such subcontractors acknowledge that Customer may be a third party beneficiary to any agreement between Customer and subcontractors.

7.5. CURE OF SERVICE AVAILABILITY BREACH. WITH RESPECT TO THE PROVISION OF PURCHASED SERVICES, IN THE EVENT OF THE BREACH OF SECTION 7.1. OF THIS AGREEMENT INCLUDING BUT NOT LIMITED TO, BREACH OF SERVICE LEVELS, SET FORTH IN SECTION 7 OF THE COMPANY USE POLICY, [COMPANY] WILL REMIT A SERVICES FEE CREDIT TO CUSTOMER CALCULATED AT 10% PER INCIDENT PER MONTH, AND NOT TO EXCEED IN THE AGGREGATE, THIRTY PERCENT (30%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH ANY APPLICABLE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO COMPANY, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND [COMPANY]’S SOLE AND EXCLUSIVE LIABILITY, FOR ALL BREACHES OF THIS SECTION 7.1. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT [COMPANY] ISSUES SERVICE CREDITS FOR THREE CONSECUTIVE MONTHS OR FOUR TIMES OVER ANY SIX-MONTH PERIOD, THEN CUSTOMER SHALL HAVE THE RIGHT TO TERMINATE THE AGREEMENT UPON NOTICE TO [COMPANY] AND RECEIVE A PRO-RATA REFUND FOR UNUSED SERVICES.

8. Insurance. Company will, at its own expense, obtain and maintain the following insurance:

(a) General Commercial Liability. Commercial General Liability, with coverage including, but not limited to, premises/operations, contractual, personal and advertising injury, and products/completed operations liabilities, with limits of at least $1,000,000 per occurrence for bodily injury and property damage combined. Customer shall be named as an additional insured, with the standard "separation of Insureds" provision or an endorsement for cross-liability coverage. Except where prohibited by law, the insurance carrier shall waive all rights of subrogation that the insurer may have against Customer. Company warrants that its subcontractors will maintain Commercial General Liability insurance, and Company shall indemnify Customer for any loss, cost, liability, expense and damage suffered by Customer as a result of failure of its subcontractors to maintain such insurance.

(b) Workers’ Compensation. If any persons are employed, or uninsured independent contractors are hired, by Company at any time during the term of this Agreement, Workers’ Compensation insurance, including coverage for all costs, benefits, and liabilities under Workers’ Compensation and similar laws which may accrue in favor of any person employed by Company, for all states in which Company will perform services for Customer, and Employer’s Liability insurance with limits of liability of at least $100,000 per accident or disease and $500,000 aggregate by disease. Except where prohibited by law, the insurance carrier shall waive all rights of subrogation that the insurer may have against Customer and the Indemnified Parties. Such insurance shall contain an Alternate Employer Endorsement naming Customer as the alternate employer.

(c) Professional Liability. Professional Liability or Errors & Omissions Insurance with limits of not less than $2,000,000 per claim and annual aggregate, covering all acts, errors, omissions, negligence, infringement of intellectual property (except patent and trade secret) and network risks (including coverage for unauthorized access, failure of security, breach of privacy perils, as well as notification costs and regulatory defense) in the performance of services for Customer or on behalf of Customer hereunder. The policy shall contain an affirmative coverage grant for contingent bodily injury and property damage emanating from the failure of the technology services or an error or omission in the content/information provided. Such insurance shall be maintained in force at all times during the term of the agreement and for a period of 3 years thereafter for services completed during the term of the agreement. Customer shall be given at least 30 days’ notice of the cancellation or expiration of the aforementioned insurance for any reason.

(c) No Modification to Obligations. Failure to obtain and maintain required insurance or failure by Customer to notify Company shall not relieve Company of any obligation contained in this Agreement.  

9. MUTUAL INDEMNIFICATION

9.1. Indemnification by Company. Company will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of a SaaS Service in accordance with this Agreement and applicable Order Forms infringes or misappropriates such third party’s United States copyright, trademark or patent (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 of, a Claim Against Customer, provided Customer (a) promptly gives Company written notice of the Claim Against Customer, (b) gives Company sole control of the defense and settlement of the Claim Against Customer (except that Company may not, without Customer’s written agreement, settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Company all reasonable assistance, at Company’s expense. If Company receives information about an infringement or misappropriation claim related to a SaaS Service, Company may in Company’s discretion and at no cost to Customer (i) modify the SaaS Service so that it no longer infringes or misappropriates such third party rights, (ii) obtain a license for Customer’s continued use of that SaaS Service in accordance with this Agreement, or (iii) terminate Customer’s obligations for that SaaS Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from u) use of SaaS Services in combination with third party services or systems; v) Customer content x) use of Company SaaS Services with any third party product or service; x) Customer’s breach of this Agreement or any Order Forms; or y) claims arising from the subsequent modification of Company SaaS Services or z) claims arising from Customer use or modification of data produced by use of Company SaaS Services.

9.2. Indemnification by Customer. Customer will defend Company against any claim, demand, suit or proceeding made or brought against Company by a third party alleging that Customer Data, or Customer’s use of any SaaS Service in breach of this Agreement or any applicable Order Forms, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Company”), and will indemnify Company from any damages, attorney fees and costs finally awarded against Company as a result of, or for any amounts paid by Company under a court-approved settlement of, a Claim Against Company, provided Company (a) promptly give Customer written notice of the Claim Against Company, (b) give Customer sole control of the defense and settlement of the Claim Against Company (except that Customer may not settle any Claim Against Company unless it unconditionally releases Company of all liability), and (c) give Customer all reasonable assistance, at Customer’s expense.

9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.

10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. IN NO EVENT, WHETHER IN ARBITRATION, MEDIATION OR ANY OTHER FORUM FOR DISPUTE RESOLUTION WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR (i) ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY OR (ii) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY, OR LOSS OF BUSINESS OR DATA OR USE OF DATA PRODUCED BY THE SAAS SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.  [COMPANY] MAKES NO WARRANTY AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOST PROFITS, INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF A PARTY, INCLUDING WITHOUT LIMITATION CUSTOMER OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EXCEPT FOR ANY CLAIM ARISING FROM CUSTOMER’S INDEMNITY OBLIGATIONS UNDER SECTION 9, OR A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WHETHER IN MEDIATION, ARBITRATION OR IN ANY OTHER FORUM WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE INCIDENT. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 4. ANY CAUSE OF ACTION ARISING FROM THE USE OF THE SERVICES, EXCEPT FOR THOSE RELATING TO INDEMNIFICATION OR ARISING FROM NON-PAYMENT OF FEES, MUST BE BROUGHT WITHIN TWO YEARS OF ITS OCCURRENCE.

11. TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms hereunder have expired or have been terminated. The Term of each Order Form is set forth in the Order Form, and may auto-renew for successive one (1) year periods unless either party gives the other notice sixty (60) days prior to commencement of the extended Term.

 

11.2. Termination. A party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) 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.  Company may terminate this Agreement immediately in the event of 6 or more violations of the Use Policy.  A party may terminate this Agreement at any time upon thirty days written notice to the other party.

12. WARRANTY AND DISCLAIMER

12.1. Company warrants and represents that i) the Professional Services will be provided in a competent and workmanlike manner and ii) that neither the Professional Services nor the SaaS Services shall infringe upon any U.S. Patent, copyright or trade secret.

12.2. The party executing this Agreement on behalf of Customer warrants and represents that they are authorized to enter into this Agreement and bind Customer.

12.3. Customer warrants and represents that i) its use of the SaaS Services will comply with all Laws; ii) it will not use the SaaS Services to infringe or violate any third party rights; iii) the billing contact information provided by Customer in this Agreement is correct and up to date and Customer will promptly notify Company of any changes.

12.4. Disclaimer on data produced by SaaS Services. CUSTOMER ACKNOWLEDGES THAT ANY DATA PRODUCED AS A RESULT OF THE USE OF THE SAAS SERVICES IS PROVIDED “AS-IS” AND IS NOT INTENDED AS A SUBSTITUTE FOR CUSTOMER JUDGEMENT AND ANALYSIS. THE QUALITY OF ANY ANALYSIS IS SUBJECT TO THE QUALITY AND ACCURACY OF DATA PROVIDED BY CUSTOMER AND THE JUDGEMENT OF CUSTOMER.  CUSTOMER AGREES THAT COMPANY HAS NO RELIANCE ON COMPANY SERVICES AND THAT COMPANY IS NOT LIABLE FOR CUSTOMER’S USE OR DECISIONS, OR OUTCOME AS A RESULT OF USE OF THE SAAS SERVICES.

12.5 Disclaimers. COMPANY DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT [COMPANY] WILL CORRECT ALL SERVICES ERRORS. CUSTOMER ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. [COMPANY] IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES AND ANY WARRANTIES IDENTIFIED AS AN EXPRESS WARRANTY IN THIS AGREEMENT ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. ANY BREACH OF WARRANTY MUST BE REPORTED TO COMPANY WITHIN ONE YEAR AFTER THE INITIAL PROVISION OF THE SERVICES.

13. GENERAL PROVISIONS

13.1. Surviving Provisions. The Sections titled “Applicability,” “Incorporated Terms,” "Payment," "Intellectual Property" "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," “Disclaimers” and "General Provisions" and any subsections thereof will survive any termination or expiration of this Agreement.

13.2. Notice. All notices to Company shall be valid only if sent via pre-paid first class certified mail or overnight courier to Company attn: Chief Executive Officer,  329 Greenfield Ave. San Mateo 94403, via facsimile transmission with proof of transmission or, for notices excluding notice of indemnification obligations, through email address or portal to a designated person approved in writing by Company. Company may give notice applicable to Company SaaS Services customer base by means of a general notice on Company portal for the SaaS Services, and notices specific to Customer by electronic mail to Customer e-mail address on record in Company account information or by written communication sent by first class mail or pre-paid post to the most recent Customer address provided by Customer to Company. Customer’s current address shall be the address provided on the Order Form.

13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law of the State of California, without reference to its conflicts of law principles, and consents to the exclusive jurisdiction of the of the State of California, the County of San Francisco and the Federal courts located within such jurisdiction. In the event that there are any changes in law that materially and adversely affect Company’s ability to perform the SaaS Services under the Agreement and Order Form (a “Regulatory Change”), then the parties shall negotiate in good faith to amend the applicable Order Form in order to enable Company to continue to render the required SaaS Services in accordance with the law as changed.

13.4. Mediation and Arbitration. ALL CONTESTED MATTERS ARISING FROM AN ALLEGED BREACH OF THE TERMS OF THIS AGREEMENT OTHER THAN BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6 AND EACH PARTY’S INDEMNITY OBLIGATIONS SHALL FIRST BE SUBMITTED TO MEDIATION THROUGH JAMS, INC. (FORMERLY KNOWN AS JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.). IF THE DISPUTED BETWEEN THE PARTIES ARE NOT RESOLVED IN MEDIATION, SUCH DISPUTES SHALL BE DETERMINED BY ARBITRATION IN SAN FRANCISCO, CALIFORNIA USA BEFORE THREE ARBITRATOR(S). EITHER PARTY MAY INITIATE ARBITRATION WITH RESPECT TO THE MATTERS SUBMITTED TO MEDIATION BY FILING A WRITTEN DEMAND FOR ARBITRATION AT ANY TIME FOLLOWING THE INITIAL MEDIATION SESSION OR AT ANY TIME FOLLOWING 45 DAYS FROM THE DATE OF FILING THE WRITTEN REQUEST FOR MEDIATION, WHICHEVER OCCURS FIRST. THE MEDIATION MAY CONTINUE AFTER THE COMMENCEMENT OF ARBITRATION IF THE PARTIES SO DESIRE. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. IN ACCORDANCE WITH THOSE RULES, JUDGMENT ON THE AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THIS CLAUSE SHALL NOT PRECLUDE PARTIES FROM SEEKING PROVISIONAL REMEDIES IN AID OF ARBITRATION FROM A COURT OF APPROPRIATE JURISDICTION. WITHIN 15 DAYS AFTER THE COMMENCEMENT OF ARBITRATION, EACH PARTY SHALL SELECT ONE PERSON TO ACT AS ARBITRATOR, AND THE TWO SO SELECTED SHALL SELECT A THIRD ARBITRATOR WITHIN 30 DAYS OF THE COMMENCEMENT OF THE ARBITRATION. IF THE ARBITRATORS SELECTED BY THE PARTIES ARE UNABLE OR FAIL TO AGREE UPON THE THIRD ARBITRATOR WITHIN THE ALLOTTED TIME, THE THIRD ARBITRATOR SHALL BE APPOINTED BY JAMS IN ACCORDANCE WITH ITS RULES. ALL ARBITRATORS SHALL SERVE AS NEUTRAL, INDEPENDENT AND IMPARTIAL ARBITRATORS. THE PARTIES SHALL BE ENTITLED TO DISCOVERY UNDER THE JAMS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, EACH SIDE MAY TAKE THREE (3) DISCOVERY DEPOSITIONS. EACH SIDE'S DEPOSITIONS ARE TO CONSUME NO MORE THAN A TOTAL OF FIFTEEN (15) HOURS. THERE ARE TO BE NO SPEAKING OBJECTIONS AT THE DEPOSITIONS, EXCEPT TO PRESERVE PRIVILEGE. THE TOTAL PERIOD FOR THE TAKING OF DEPOSITIONS SHALL NOT EXCEED SIX (6) WEEKS. THE PARTIES ADOPT AND AGREE TO IMPLEMENT THE JAMS OPTIONAL ARBITRATION APPEAL PROCEDURE (AS IT EXISTS ON THE EFFECTIVE DATE OF THIS AGREEMENT) WITH RESPECT TO ANY FINAL AWARD IN AN ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT.

Export Compliance. The SaaS Services, other technology Company makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit Users to access or use any SaaS Service in a U.S.-embargoed country (currently Cuba, Crimea region of Ukraine, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

13.5. Anti-Corruption. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Company employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Company Legal Department at privacy@soru.ai

13.4. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and Company regarding Customer’s use of SaaS Services and, except for the Terms of SaaS Service, supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer’s purchase order or in any other of Customer’s order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form (2) the Master Agreement, (3) The Use Policy, (4) Professional Services Addendum and (5) the Documentation.

13.5. Assignment. Neither party may assign any of its rights or obligations hereunder in whole or in part, 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 whole or in part, (including 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, subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.6. Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; and the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever. Neither party shall have any obligation or duty to the other party except as expressly and specifically set forth herein, and no such obligation or duty shall be implied by or inferred from this Agreement or the conduct of the parties hereunder. Customer shall not withhold or make payments or contributions therefor or obtain benefits for or Company its employees, contractors or agents. Company shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Company’s performance of services and receipt of fees under this Agreement.

13.7. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

13.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

13.9. Remedies Cumulative. All remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise.

13.10. UCITA and Third-Party Contractors. The Uniform Computer Information Transactions Act does not apply to this software as a service agreement or orders placed under it. Customer understands that Company business partners, including any third-party firms retained by Customer to provide computer consulting services, are independent of Company and are not Company agents. Company is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as Company subcontractor on an engagement ordered under this software as a service agreement.

13.11. Force Majeure. Neither of party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 90 days, either party may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for programs delivered or services provided.

13.12. Publicity. Unless expressly set forth otherwise in an Order Form, Company may, upon Customer’s review and approval (which approval shall not be unreasonably withheld or delayed), reference Customer’s name and trademark, as well as other information pertaining to the provision and results of the services, in case studies and other Company marketing materials.

13.13. Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, except as may be otherwise agreed in writing, Customer and its affiliates shall not, either directly or indirectly, on behalf of Customer or any other person or entity, solicit, entice, hire or offer employment to, enter into any independent contractor relationship with or otherwise directly or indirectly use the SaaS Services of, on a full-time, part-time or temporary basis:

 

  1. Any Company personnel, including employees and subcontractors (“Company Staff”) or former Company Staff who has provided SaaS Services to Customer;
  2. Any Company Staff or former Company Staff who has been introduced to, recommended to or interviewed by Customer through Company; or
  3. Any Company Staff or former Company Staff for a position whereby such Company Staff or former Company Staff uses any trade secret of Consultant in the provision of SaaS Services.

 

During the term of this Agreement and for one year hereafter, except as may be otherwise agreed in writing, Company shall not, either directly or indirectly, on behalf of Customer or any other person or entity, solicit, entice, hire or offer employment to, enter into an independent contractor relationship with or otherwise directly or indirectly use the SaaS Services of, on a full-time, part-time or temporary basis any employee or former employee of Customer with whom Company has had contact in connection with the performance of SaaS Services under this Agreement.

13.14.  Counterparts.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.