WEBAI END USER AGREEMENT (“Agreement”)
IMPORTANT - ALL USE OR PROVISION OF WEBAI SOFTWARE AND SERVICES IS GOVERNED BY, AND SUBJECT TO, THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INDICATING YOU AGREE TO THESE TERMS, OR BY DOWNLOADING, INSTALLING AND/OR USING THE PRODUCTS (INCLUDING CONTINUED USE FOLLOWING INSTALLATION OF A TRIAL VERSION, AN UPDATE OR AN UPGRADE), YOU AND/OR THE COMPANY YOU REPRESENT (“CUSTOMER”) ARE AGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER SHOULD NOT INDICATE IT AGREES TO THESE TERMS AND CUSTOMER WILL NOT HAVE ANY LICENSE TO ANY PART OF THE SOFTWARE OR RIGHT TO USE ANY PART OF THE PRODUCTS. WEBAI’S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY WEBAI, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. THIS IS A LEGAL AGREEMENT BETWEEN CUSTOMER AND WEBAI AND YOU SHOULD KEEP A COPY OF IT.
webAI (as defined below) offers, on a subscription basis, a suite of
software and services to its customers. In addition, webAI performs
Professional Services (as defined below). In consideration of the mutual covenants and conditions herein contained, and other good
and valuable consideration, the parties hereto agree as follows:
1. DEFINITIONS.
1.1. “Answer” means a response generated by the Software, based on the trained model being used, in reply to Customer’s prompt, question, or command. An Answer may include text, data, code, visual elements, or other content formats supported by the Software. Answers are based on the information available to the Software at the time of generation and is intended for informational, illustrative, or operational purposes.
1.2. “Confidential Information” means: (a) the Software; and (b) any business or technical information of webAI or Customer, including but not limited to any information relating to webAI's or Customer's product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.
1.3. “Customer Content” means software, data, text, images, audio, video, photographs, models and other content and material, in any format, that are created or obtained by Customer to access through, within, or in conjunction with its use of the Products.
1.4. “Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, trademark rights, trade secret rights, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.5. “Order Form” or “Order” means the order generated by webAI, or a webAI affiliate, reseller or channel partner (“Channel Partner”) in response to Customer’s indication of interest in the Products and associated maintenance and support services and/or Professional Services. The Order Form will contain particulars with respect to the Products, service, term, price and other details. All Order Forms are subject to and governed by the terms and conditions of this Agreement unless otherwise specifically agreed in writing by the parties.
1.6. “Products” means the Software and Services.
1.7. “Professional Services” means services provided on a project-by-project basis as described in Section 3 of this Agreement. Professional Services are different and distinct from Services.
1.8. “Services” means services provided by webAI as set forth on the applicable Order and described in webAI’s service descriptions. The process to change Services will be as described in the applicable service description.
1.9. “Software” means webAI's proprietary software products in object code form only, and related documentation, identified in the applicable Order Form and licensed for use by Customer pursuant to this Agreement, including any error corrections, modifications, revisions, upgrades and updates thereto provided by webAI to Customer under this Agreement.
1.10. “Third-Party Content” means software, data, text, images, audio, video, photographs, models and other content and material, in any format, that are obtained or derived from third party sources outside of webAI that Customer may access through, within, or in conjunction with its use of the Products. Third-Party Content includes third-party sourced materials accessed or obtained by Customer’s use of the Products or any third-party tools provided by webAI or downloaded to the Product at the request of Customer.
1.11. “webAI” means webAI, Inc. and if the Products are provided by a Channel Partner, then references to webAI herein may also mean the applicable Channel Partner.
2. LICENSE.
2.1. Subject to the terms and conditions of this Agreement and in consideration of the fees paid by Customer hereunder, webAI grants to Customer a nonexclusive, nontransferable license, during the subscription term, to use the Software solely in accordance with the applicable documentation and solely for Customer's internal business use, except as otherwise may be expressly permitted in this Agreement. webAI reserves all rights and licenses in and to the Software not expressly granted herein. Unless otherwise agreed in writing, Customer must purchase consumption (e.g., number of Answers) to use the Software in a production environment.
2.2. Usage Limitations. Customer’s use of the Software may be subject to usage limitations and other restrictions as described in the applicable Order Form (e.g., term, business use, project scope, number of Answers, etc.) Exceeding such usage limitations or restrictions may result in additional charges for which webAI will invoice Customer in accordance with Section 6 of this Agreement. Failure to pay such additional charges may result in termination of Customer’s subscription. Customer may not take any action, or use any hardware, software or other method, designed to circumvent, or which has the effect of circumventing, any usage limitations.
2.3. Reporting. If the applicable Order includes usage based or consumption pricing Customer will produce a monthly usage report in a format required by webAI and send such report to webAI no later than seven (7) days from the end of each month during the subscription term, unless otherwise agreed in writing. Information provided via the foregoing will be used by webAI to determine usage and corresponding fees to be billed in accordance with the Order. If monthly usage reports are not received as required under this Section, webAI will notify Customer and failure to send the usage report may result in degradation of service and/or suspension or termination of the subscription and/or maintenance and support. webAI may, but is not obligated to, notify Customer when Customer’s subscription term, usage or license is about to expire or be consumed. Customer is solely responsible for monitoring its use of the Software and the amount of usage and is responsible for all associated costs.
2.4. Trial License. Customer may be provided with trial use of the Software to provide Customer the opportunity to evaluate the Software prior to purchasing a full subscription. Such trial use may be limited by time or other limitations and is intended for non-production use only. Production use is a violation of the trial license and will result in an automatic conversion to a subscription for which Customer will be charged. Upon conclusion of the applicable trial period, Customer shall either purchase a subscription, in which case a new Order Form will be completed, or Customer will immediately remove and cease using the Software.
2.5. Beta Versions. Customer may be, or may have been, provided with access to beta, proof of concept or similar versions of the Software or features within the Software (collectively the “Beta Versions”) offered by webAI. Customer acknowledges and agrees that its use of Beta Versions is at Customer’s own risk and that Beta Versions are (a) not generally available, (b) made available on an “AS IS” basis without indemnities, warranties (express or implied) or other obligations of any kind, (c) may be discontinued or modified by webAI at any time, and (d) may be subject to additional terms and conditions. Beta Versions are not for production use and are not covered by webAI maintenance and support. webAI will have no liability for any harm or damage arising out of or in connection with Beta Versions. Customer or webAI may terminate Customer’s access to Beta Versions at any time.
2.6. License Restrictions. Customer has no right to transfer, sublicense or otherwise distribute the Software to any third party. Except as expressly permitted in this Agreement and by applicable law, the license granted above does not permit Customer to, and Customer will not, and will not permit third parties to: (a) modify, correct, adapt, translate, enhance, create derivative works of, disassemble, decompile or reverse engineer the object code of the Software or otherwise attempt to derive the source code underlying the Software or reduce the Software to human readable form; (b) copy the Software, except for a reasonable number of backup copies; (c) install or otherwise make the Software available on any public or distributed network (except for an internal and secure cloud computing environment), (d) use the Software in any manner to perform development or provide service bureau, time-sharing or other computer services to third parties, (e) disable or circumvent any access control or related device, process or procedure established with respect to the Software, (f) attempt to probe, scan or test the vulnerability of the Software, breach the security or authentication measures of the Software without proper authorization or willfully render any part of the Software unusable, or (g) otherwise use or access the Software in any manner not expressly permitted under this Agreement or in violation of applicable law.
2.7. Telemetry Data Access and Use. Customer acknowledges that the Software includes functionality that enables it to collect, transmit and analyze Telemetry Data (as defined below). webAI may use Telemetry Data for monitoring usage of the Software, diagnostic and corrective purposes, and improving the functionality, performance and features of webAI’s offerings. “Telemetry Data” means (a) user activity metrics, including engagement across different time periods, such as Monthly Active Users (“MAU”) and Weekly Active Users (“WAU”), (b) event-based metrics, including key interactions such as canvas updates, model execution and deployment changes, and (c) system state metrics, such as the status of Customer nodes and related system components.
2.8. Maintenance and Support Services.
(a) Subject to payment of the applicable fees, webAI will perform the maintenance and support services specified in an Order Form in accordance with webAI’s standard Software maintenance and support procedures.
(b) Computer scripts (“Scripts”) may be provided to Customer to enable easier completion of certain tasks. Scripts are not part of webAI’s standard software or software support. They are provided “AS IS” without warranty or support. Customer must acquire professional services under a separate SOW if support for a Script is needed.
2.9. End of Life Policy. webAI reserves the right to “end-of-life” certain software applications including the Software. In such event, an end of life (“EOL”) notice will be provided at least six (6) months prior to the date on which the Software will become obsolete. During the EOL notice period, webAI will work with Customer to determine an appropriate migration path. Customer shall be entitled to continue using EOL Software following the end of the EOL notice period until the end of the applicable license term but webAI will no longer provide any maintenance and support services for such EOL Software.
3. PROFESSIONAL SERVICES
3.1. Services Provided. Details concerning Professional Services to be performed by webAI (or by its subcontractors) will be described in separate statements of work (“SOW”) describing the project and related terms, if any, specific to the applicable Customer project. All requests for Professional Services shall be accompanied by a completed SOW, a copy of which shall be attached to this Agreement at the appropriate time and deemed incorporated by reference herein. No SOW shall be effective unless and until accepted in writing by webAI. Any changes, amendments, or waivers (“Changes”) to any SOW, or the Professional Services provided thereunder, requested by either party must be mutually agreed upon in writing and signed (each a “Change Order”). webAI shall not be required to provide any Change unless and until a Change Order has been signed by an authorized representative of both parties, and any delay or additional charges resulting from any delay of Customer to execute a Change Order shall be the sole responsibility of Customer. Changes to SOWs may result in adjustments to the charges, delays or changes in scheduled Professional Services. Unless specifically agreed in an applicable SOW, Professional Services will be performed only during webAI’s normal business hours, excluding weekends and holidays. Requests by Customer to have Professional Services provided outside of normal business hours are Changes and must first be agreed to by webAI in a Change Order.
3.2. Term and Termination of Statements of Work. Each SOW shall commence upon its execution by both parties and shall continue until all tasks described therein are completed, unless earlier terminated pursuant to this Section 3.2. A SOW may be terminated by either party if any material breach of such SOW continues uncorrected for more than 30 days (10 days in the event of non-payment) after receipt of written notice from the aggrieved party describing the breach. In the event of termination or expiration of this Agreement, all outstanding SOWs shall immediately terminate, unless otherwise agreed in writing by the parties.
3.3. Work Product. Unless otherwise specifically agreed in an applicable SOW, webAI shall own all right, title and interest (including all Intellectual Property Rights) in and to all inventions (whether or not patentable), works of authorship, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by or on behalf of webAI in connection with the Services and/or Professional Services (“Work Product”). All Work Product created hereunder shall be licensed to Customer upon the same terms and conditions, and subject to the same restrictions, as the Software is licensed to Customer hereunder.
4. CUSTOMER OBLIGATIONS.
4.1. Certification. At webAI’s written request and not more frequently than annually, Customer shall furnish webAI with a signed certification verifying that the Products are being used in compliance with the terms and conditions of this Agreement, including without limitation any applicable usage limitations. webAI shall have the right to periodically audit Customer’s usage of the Products, either physically or via remote access, and Customer shall provide reasonable assistance during any such audit.
4.2. Cooperation and Data. Customer acknowledges that to properly perform its obligations under this Agreement and any executed SOWs, webAI may require access to Customer’s premises, property, equipment, network, and other information, data and/or documentation (“Data”) that webAI reasonably requests from Customer. If Customer fails in the timely provision of Data, or fails to provide other access or cooperation, and such failures require additions, corrections or modifications related to webAI’s performance, Customer will reimburse webAI for resulting costs.
4.3. Virus Prevention and Security. webAI does not protect against, nor accept any liability for, third party intrusion into or damage to Customer’s network, data center or data transmission. Customer must take all necessary steps to prevent against viruses, malicious code, hacking and other forms of network intrusion consistent with industry standards.
4.4. Customer Network. Customer is solely responsible for obtaining and maintaining all hardware, software, services and infrastructure necessary to install and use the Software for Customer’s intended purpose. Customer shall ensure that its network environment meets all technical and system requirements as specified by webAI from time to time, in order to enable the proper installation, operation, and performance of the Software.
4.5. Data Privacy. Customer represents and warrants that it understands and complies with all applicable federal, state, provincial and local laws and regulations related to or governing collection, storage, use, processing and transmission of data, including without limitation GDPR, HIPAA and COPPA.
5. OWNERSHIP.
5.1 Products. webAI and its licensors presently own and will continue to own all worldwide right, title, and interest in and to the Products, including without limitation all modifications, revisions and derivative works thereto, by whomever made, and all worldwide Intellectual Property Rights therein. Customer will not delete nor in any manner alter the copyright, trademark, and other proprietary rights notices of webAI and its licensors appearing on the Software as delivered to Customer. Customer will reproduce such notices on all permitted copies it makes of the Software.
5.2. Feedback. If Customer provides webAI with any comments, suggestions or other feedback, including for enhancements or improvements, new features or functionality, concerning the Software (“Feedback”), Customer hereby agrees (a) that such Feedback is provided on a non-proprietary and non-confidential basis, and (b) webAI will have the full, unencumbered, perpetual right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feeback in connection with the Products. Any changes to the Products as a result of Feedback are owned solely and exclusively by webAI. webAI will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality.
6. PAYMENT.
6.1. Subscription.
(a) Platform Subscription Fees. Customer will pay to webAI the platform subscription, usage and other fees on the Order Form in accordance with the payment schedule set forth therein. If the Order Form does not include a payment schedule, then payment of platform subscription fees is due annually, in advance.
(b) Usage Fees. Customer may pre-pay for a specific number of Answers at specific and negotiated rates, as indicated in the applicable Order Form. Unless Customer purchases an additional bundle of prepaid Answers, following consumption of the prepaid usage amount, Customer will be billed for its usage monthly, in arrears, at the excess consumption rate specified in the Order Form or, if no excess consumption rate is specified, at webAI’s then-current rate. Prepaid usage bundles expire at the end of the associated period of the subscription term (e.g., annually) and Customer is not entitled to any refund of amounts paid but unused. Prepaid usage is not intended as a limitation on the number of Answers and webAI will not limit usage to the number of prepaid Answers.
(c) Maintenance and Support Fees. Maintenance and Support fees are included in the Platform Subscription fee set forth on the applicable Order. If Customer has not subscribed to a Platform, then Maintenance and Support fees indicated on the applicable Order Form will be billed on an annual basis, payable in advance, unless otherwise stated in the applicable Order Form. In the event Customer fails to pay webAI on the due date, then to reinstate or renew maintenance and support services (if allowed by webAI), Customer must first pay webAI (i) the annual maintenance and support services fee, and (ii) the applicable reinstatement charge.
6.2. Multi-Year Commitments. Customer acknowledges that multi-year subscriptions and usage commitments have been negotiated on the basis of preferential pricing. Multi-year subscriptions and prepaid usage cannot be terminated early for any reason other than webAI’s uncured breach.
6.3. Professional Services. Unless otherwise specified in an applicable SOW, Professional Services shall be provided on a time and materials basis at the rates specified in the applicable SOW. Customer will pay to webAI all amounts owed under an SOW in accordance with the payment term specified in the applicable Order.
6.4. Travel and Incidental Expenses. Customer will reimburse webAI for any reasonable out-of-pocket expenses incurred by webAI in connection with performing services at locations other than webAI's facility and, if Professional Services are provided under an SOW such expenses shall be reimbursed in accordance with the SOW. Payment shall be made in accordance with the payment term specified in the applicable Order.
6.5. Pricing Changes. webAI shall have the right to revise subscription fees and usage pricing in its discretion. In such event, webAI shall notify Customer if, and by what amount, it intends to change such pricing, and Customer shall have the right, following such notice, to either continue its subscription and/or usage under this Agreement and pay the revised fees or notify webAI, in writing no later than thirty (30) days following the date of webAI’s notice, of Customer’s intention to terminate its license at the end of the current period. No change in fees shall affect licenses, subscriptions or usage for which Customer has already paid.
6.6. Payment Terms and Taxes. If Customer requires a purchase order prior to payment of webAI’s invoice, it shall be Customer’s responsibility to generate and issue any such purchase order in enough time to prevent termination of this Agreement and the applicable licenses. Customer will pay all amounts due under this Agreement in United States dollars and in accordance with the payment term specified in the applicable Order, or if not specified then within thirty (30) days of the date of the applicable invoice. All past due amounts will incur interest at a rate equal to the lower of 1.5% per month or the highest rate permitted by law, beginning as of ten (10) days after the applicable due date. Customer will be responsible for, and will promptly pay, all applicable taxes of any kind (including but not limited to sales and use taxes) associated with this Agreement or Customer's receipt or use of the Product or the performance of services hereunder, except for taxes based on webAI's net income. No part of any payment shall be subject to withholding for the payment of any Social Security, federal, state, local or other taxes, including any foreign taxes, duties, levies or fees of any kind. Each amount otherwise payable by Customer to webAI shall be increased so that the net amount paid to webAI, after all withholdings and deductions, will not be reduced. Fees paid or payable for licenses granted hereunder are non-refundable and non-transferrable. Termination or expiration of this Agreement, or any statement of work, shall not relieve Customer of any payment obligation incurred prior to such termination or expiration.
7. WARRANTY.
7.1. Limited Software Warranty. webAI warrants that, for a period of ninety (90) days after the date the Software is made available to Customer for installation, the Software will function substantially in accordance with webAI’s published documentation. Renewal of a subscription does not extend the warranty period. Customer must notify webAI of any breach of the foregoing warranty no later than thirty (30) days following completion of the 90-day warranty period. As Customer's sole and exclusive remedy and webAI's entire liability for any breach of the foregoing warranty, webAI will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty.
7.2. Services Warranty. webAI warrants that services provided by webAI hereunder will be performed in a good and workmanlike manner in accordance with the terms of this Agreement. In the event of a breach by webAI of the foregoing warranty of which Customer notifies webAI in writing no later than thirty (30) days from completion of the applicable service, webAI will correct, at webAI’s expense, any non-conforming portion of such service.
7.3. Customer Content and Third-Party Products. webAI makes no warranty, express or implied, with respect to third party hardware or software products, or any Customer Content or Third-Party Content, and is not responsible for failure of the overall solution to operate properly if such failures are a result of third-party products, Customer Content or Third-Party Content. webAI may be required to interact with such third parties in order to diagnose and resolve problems, and Customer agrees to coordinate communication and cooperation between webAI and such third parties.
7.4. Disclaimer of Warranties. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 7 ARE IN LIEU OF, AND WEBAI HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THOSE OF ACCURACY, MERCHANTABILITY OR SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WEBAI DOES NOT WARRANT OR GUARANTEE THAT THE PRODUCT OR WORK PRODUCT WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOFTWARE, WORK PRODUCT OR ANY SERVICES WILL MEET CUSTOMER'S NEEDS. FURTHER, WEBAI MAKES NO WARRANTY, EXPRESS OR IMPLIED, AND ACCEPTS NO LIABILITY FOR ANY FAILURE OR FAULT, OR ANY RESULTING HARM OR DAMAGE, RESULTING FROM CUSTOMER’S FAILURE TO PROPERLY IMPLEMENT OR OPERATE THE PRODUCT, INCLUDING WITHOUT LIMITATION FAILURE OF CUSTOMER’S HARDWARE, SOFTWARE OR NETWORK ON WHICH THE PRODUCT OPERATES OR FAULTS OR FAILURES OF THIRD PARTY HARDWARE OR SOFTWARE NOR RESULTING FROM CUSTOMER’S FAILURE TO IMPLEMENT ADVICE PROVIDED BY WEBAI AS PART OF ITS MAINTENANCE AND SUPPORT SERVICES.
8. INDEMNIFICATION.
8.1. Infringement Indemnity. webAI will defend any action brought against Customer by an unaffiliated third party alleging that the Software, as provided by webAI to Customer under this Agreement and used within the scope of this Agreement, infringes any U.S. patent or copyright, and will pay any costs, damages and reasonable attorneys' fees attributable to such claim that are awarded against Customer, provided that Customer: (a) promptly notifies webAI in writing of the claim; (b) grants webAI sole control of the defense and settlement of the claim; and (c) provides webAI with all assistance, information and authority required for the defense and settlement of the claim.
8.2. Injunctions. If Customer's use of the Software is, or in webAI's opinion is likely to be, enjoined or restricted due to the type of infringement specified in Section 8.1 above, webAI may, at its sole option and expense: (a) procure for Customer the right to continue using such Software under the terms of this Agreement; (b) replace or modify such Software so that it is non-infringing and substantially equivalent in function to the enjoined or restricted Software; or (c) if options (a) and (b) above are not commercially feasible despite webAI's reasonable efforts, then webAI may terminate Customer's rights and webAI's obligations hereunder with respect to such Software and refund to Customer the amount of any prepaid but unused subscription and/or usage fees.
8.3. Exclusions. Notwithstanding the terms of Section 8.1, webAI will have no liability for, and Customer will indemnify webAI for, any claim to the extent it results from: (a) modification of the Software made other than by webAI; (b) the combination, operation or use of any Software supplied hereunder with equipment, devices or software not supplied by webAI to the extent such a claim would have been avoided if the Software were not used in such combination; (c) failure of Customer to use updated or modified Software provided by webAI to avoid infringement; or (d) compliance by webAI with designs, plans or specifications furnished by or on behalf of Customer.
8.4. Sole Remedy. The provisions of this Section 8 set forth webAI's sole and exclusive obligations, and customer's sole and exclusive remedies, with respect to infringement of Intellectual Property Rights of any kind.
9. CONFIDENTIALITY.
9.1. Use and Disclosure Restrictions. During the term of this Agreement, and for a period of five (5) years after any termination of this Agreement, each party will use the other party's Confidential Information only as permitted herein, and will not disclose such Confidential Information to any third party except to employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors.
9.2. Exclusions. The use and disclosure restrictions set forth in Section 9.1 shall not apply to information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party's Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.
10. LIMITATION OF LIABILITY.
10.1. Total liability. EACH PARTY'S, AND ITS LICENSORS’, CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAIDOR PAYABLE TO WEBAI BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CLAIM FOR THE SOFTWARE OR SERVICES THAT ARE THE SUBJECT OF THE CAUSE OF ACTION OR CLAIM.
10.2. EXCLUSION OF DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF DATA, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY AND MANAGEMENT TIME, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, AND THE LIKE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
10.3. Exclusions. The limitations of liability and exclusion of damages set forth in Sections 10.1 and 10.2 above shall not apply to (i) breach of Sections 2.2, 2.6, 5 or 9, (ii) death, bodily injury or tangible property damage caused by a party's, or its employees', negligence or intentional misconduct, (iii) for fraud or fraudulent misrepresentation, or (iv) amounts payable hereunder.
10.4. High Risk Activities. The Products and Work Product are not fault-tolerant and are not designed, manufactured or intended for use in hazardous environments requiring fail-safe performance, including without limitation the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Products or Work Product could lead directly to death, personal injury, or severe physical or environmental damage. webAI and its suppliers specifically disclaim any express or implied warranty or liability for such activities.
10.5. Basis of Bargain. The parties expressly acknowledge and agree that webAI has set its prices and entered into this Agreement in reliance upon the limitations of liability specified herein, which allocate the risk between webAI and Customer.
11. TERM AND TERMINATION.
11.1. Licenses.
(a) Term. This Agreement will begin on the Effective Date and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement. Subscriptions, and the applicable licenses, begin on the date set forth in the applicable Order Form and remain in effect for an initial term of one (1) year, or such other term as specified in the Order Form (“Initial Term”), unless terminated earlier in accordance with the terms of this Agreement. Following the Initial Term, subscriptions automatically renew for additional one-year terms at webAI’s then-current fees, or such other renewal terms as specified in the Order Form (each a “Renewal Term”) unless and until either party notifies the other, no later than sixty (60) days prior to the end of the then-current term, that it does not wish to renew the subscription. webAI may employ electronic means to terminate Customer’s access to the Products following termination of a trial version or upon conclusion of a license. Prepaid Answers expire at the end of the term in which they were purchased, even if Customer renews for an additional term.
(b) Maintenance and Support Services. Unless otherwise stated in the applicable Order Form, maintenance and support services are included in the subscription and commence and terminate on the same dates as the subscription except that webAI reserves the right to suspend and/or terminate maintenance and support services if Customer fails to implement advice received from webAI as part of the maintenance and support services.
11.2. Termination for Breach. Each party will have the right to terminate this Agreement or any Software license granted hereunder if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.
11.3. Termination by webAI. webAI may terminate this Agreement, and all licenses granted hereunder, immediately upon notice to Customer in the event webAI’s continued performance hereunder is prevented or prohibited by any applicable law, ordinance or regulation. In the event of any such termination (a) all licenses granted hereunder will immediately cease, subject only to subsection (c) of this Section 11.3, (b) Customer will immediately cease all use of the Products and will deinstall the Software on all Customer computers and networks, (c) to the extent not prohibited by such applicable law, Customer shall have a limited wind-down period during which time the Products may be used to effect an orderly transition away from webAI Software, and (d) to the extent permitted by such applicable law, webAI will refund the amount of pre-paid but unused fees.
11.4. Automatic Termination. This Agreement will terminate automatically if Customer: (a) becomes the subject of any voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
11.5. Effect of Termination. Upon any termination of this Agreement or of any individual Software license granted hereunder, Customer will: (i) promptly pay all outstanding amounts owing to webAI, including without limitation under any SOW; and (ii) immediately cease all use of the applicable Products and will promptly return to webAI or, at webAI's request, destroy, all webAI Confidential Information then in Customer's possession, including without limitation the applicable Software, and all copies and portions thereof, in all forms and types of media, and provide webAI with an officer's written certification, certifying to Customer's compliance with the foregoing.
11.6. Nonexclusive Remedy. Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party.
11.7. Survival. The rights and obligations of the parties contained in Sections 2.6, 3.3, 5, 6, 7.4, 9, 10, 11.7 and 12 will survive the termination of this Agreement or of any individual Software license.
12. GENERAL.
12.1. Open Source. Certain components of the Software may contain open source software and Customer’s use of such open source software is subject to any additional terms and conditions of the applicable open source license.
12.2. Assignment. Customer will have no right to assign this Agreement, in whole or in part, by operation of law or otherwise, without webAI's prior written consent. Any attempt to assign this Agreement without such consent will be null and void.
12.3. Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Texas and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and U.S. federal courts located in Travis County, Texas. Both parties consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Texas state or U.S. federal law. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.
12.4. Government End Users. If Customer is an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Products or any related documentation of any kind, including technical data or related manuals, is restricted in accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Software is commercial computer software and the related documentation is commercial computer software documentation. The use of the Software and related documentation is further restricted in accordance with the terms of this Agreement, or any modification hereto.
12.5. Export. Customer acknowledges and agrees to comply fully with the laws and regulations of the United States that restrict the export and re-export of commodities and technical data of United States origin (“Export Laws”) and will assure that neither the Product nor any direct product thereof are (1) exported or re-exported, directly or indirectly, by Customer or any of Customer’s transferees without first obtaining the appropriate United States and foreign government licenses; and (2) intended to be used for any purposes prohibited by the Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer’s obligations hereunder shall at all times be subject to the export control laws and regulations of the United States government and any amendments thereto.
12.6. Privacy.
(a) Customer consents to the processing of personal information by webAI and its agents to facilitate the subject matter of this Agreement. Customer will obtain all required consents from third parties (including Customer’s contractors, administrators and employees) under applicable privacy and data protection law before providing personal information to webAI. During implementation, Customer may be asked to provide information such as name, email address, phone number, IP address of the system on which the Software is installed, and other contact information for the person or persons who will be interacting with user support provided by webAI. Such information will be used by webAI and/or its relevant subcontractors to provide support for the Software (e.g., such as restoring lost passwords) and to improve the Product and the user experience.
(b) Personal information collected under this Agreement (1) may be transferred, stored and processed in the United States or any other country in which webAI or its service providers maintain facilities, and (2) will be subject to the privacy terms specified in webAI’s Privacy Policy.
12.7. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
12.8. Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
12.9. Notices. All notices required or permitted under this Agreement will be in writing and delivered by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications will be sent to the other party’s office address set forth above or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
12.10. Force Majeure. If either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of (or if loss of services is caused by) natural disaster, action or decrees of governmental bodies, or communication line failure not the fault of the affected party (“Force Majeure Event”), the party who has been so affected shall immediately give notice to the other party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement will be immediately suspended. If the period of nonperformance exceeds fifteen (15) days from the receipt of notice of the Force Majeure Event, the party whose performance has not been so affected may, by giving written notice, terminate this Agreement. If a party fails to give immediate notice of any Force Majeure Event, and such failure to provide immediate notice causes the other party to incur costs or expenses that would have been avoided had such immediate notice been provided, then the party who failed to provide the requisite notice shall remain responsible for such costs or expenses.
12.11. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
12.12. Announcements. Customer agrees that webAI may refer to Customer’s name and logo in webAI’s marketing and advertising materials and list and display Customer’s name and logo on its website as a customer of webAI. In consideration of any discount offered, Customer agrees to participate in the following marketing activities: (a) Make a senior executive with knowledge of the product available for customer telephonic and/or video conference customer reference calls; (b) issuance of a joint press release with Customer Order immediately after contract signing announcing Customer’s choice of webAI; (c) After successful implementation of the Software, participate in a case study conducted by webAI including Customer Order; and (d) After successful implementation of the Software, participate in webinars and online events as reasonably requested, scheduled and paid for by webAI. webAI may include Customer’s name and details of Orders placed hereunder in any public filing or announcement required by a regulatory body.
12.13. Non-Solicitation. Customer acknowledges that webAI has expended substantial time and money in the selection and training of its employees. Accordingly, Customer will not, directly or through an intermediary, solicit, utilize or employ any employees of webAI during or for a period of one (1) year following the termination of this Agreement. In the event Customer employs an employee of webAI during the term of this Agreement or during the one year period after termination thereof, Customer shall pay, as liquidated damages to webAI, an amount equal to one (1) year's salary of such hired employee (at the payment rate at the time of the employee's termination of employment with webAI) plus any incentive bonuses paid by webAI to the subject employee in the twelve (12) months preceding the subject employee's termination of employment with webAI.
12.14. Drafting. All parties and their counsel have had an opportunity to review and contribute to the drafting of this Agreement, and the rule of construction providing that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. This Agreement shall be construed as drafted by both parties.
12.15. Entire Agreement. This Agreement, including all Orders, schedules, exhibits and attachments attached hereto, contains the complete understanding and agreement of the parties and, other than the terms set forth in applicable Order Forms, supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Except for Order Forms, statements of work and change request forms, no terms, provisions or conditions of any purchase order, acknowledgement or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to such terms, provisions or conditions. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties.
12.16. Sanctions.
(a) None of the Customer, any of its subsidiaries, or any director, officer, or employee thereof, or, to the Customer’s knowledge, any agent, affiliate or representative of the Customer or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are: (A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), or (B) is located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria) (collectively “Sanctioned Country”).
(b) Customer shall not directly or indirectly, engage in any activity or transaction in relation to any Sanctioned Country that would cause either Customer or webAI to be in violation of Sanctions. In connection with the activities performed under or pursuant to this Agreement, Customer shall not directly or indirectly, engage in any transaction, service or business dealing, or sign any commercial agreement, with any individual, entity, group or government agency that is on the U.S. list of Specially Designated Nationals (“SDNs”) or Blocked Persons List or any entity where such an SDN or blocked party has (or such SDNs and/or blocked parties collectively have) a fifty percent (50%) or greater interest. In addition, Customer shall not engage in any transaction, service or business dealing, or sign any commercial agreement, with any individual, entity, group or government agency that is on the U.S. Sectoral Sanctions Identification (“SSI”) list without webAI’s prior written approval. In no instance shall Customer offer payment terms to a Person on the SSI List (including a Person owned 50% or greater by a Person or Persons on the SSI List) that would result in a violation of Sanctions.
(c) Customer must identify the name and country of the end user for each transaction before webAI will release Products for shipment. Where U.S. licenses under export control or sanctions rules are required for a sale, shipment, transfer or service, webAI shall inform Customer accordingly in writing and Customer shall decide whether to revoke the order or to request the necessary government authorization(s) in coordination with webAI and will not proceed with such transactions or activities until after the competent authority has issued the requested license. Customer shall provide copies of any such licenses to webAI. Customer also shall be responsible for obtaining any required governmental authorizations for other jurisdictions, such as import licenses and foreign exchange permits. webAI shall not be liable if any authorization is delayed, denied, revoked, restricted, or not renewed. Customer shall bear all such risks and costs caused thereby and shall not be relieved thereby of any of its obligations to pay webAI. webAI may terminate this Agreement and/or any order, and/or may require alternative payment terms for any accepted order, if webAI deems such action necessary in order to comply with any applicable law.
(d) Willful or negligent violation of such laws or regulations as discussed above shall be considered just cause for the immediate and unqualified cancellation of this Agreement by webAI without any liability on the part of webAI. Customer further agrees to immediately transmit to webAI any information which may come to its attention concerning violation of such regulations by Customer's customers.
(e) In support of this compliance clause, webAI shall have the right to audit Customer’s expenses and activities in relation to this Agreement and to request periodic reports as webAI may deem appropriate in relation to Customer’s expenses.
