Cybernet AI, Inc. (“We,” “Us” or “Our”) are pleased to provide access to Our proprietary cloud-based platform known as “AIDOS” (the “Platform”) through which We offer AI driven voice robots (the “Agents”) and related tools, modules and other technology that optimize self-service communications regarding your product and service offerings (collectively, “Your Services”) between You and Your clients (“Your Clients”). These Master Terms (these “Terms”), together with the Order Form executed by Us and the customer listed in the applicable Order Form (“You” or “Your”) collectively constitute the “Agreement” and govern Your use of the Platform and any related Professional Services (as defined below).
We update these Terms from time to time, provided that if You have an active subscription to the Platform, We will notify You by email of any material changes, which will take effect [30] days following Our delivery of such notice, except that changes may take effect sooner (1) when We launch a new service or feature, or (2) in urgent situations, such as preventing ongoing abuse or responding to legal requirements. If You do not agree to any modification or other update, then You may terminate the Agreement and Your access to the Platform on written notice to Us. Your ability to terminate the Agreement as set forth in this paragraph is Your sole remedy in the event of a change to these Terms.
PROVISION OF THE PLATFORM.
Access to the Platform. In consideration of the Fees (as defined below) during the Term (as defined below), We will use commercially reasonable efforts to make the Platform available to You and to provide your employees authorized by You to access the Platform (“Authorized Users”) with access to our standard customer support in respect of the Platform consistent with Our support policies in effect from time to time, except during any circumstances beyond our reasonable control or scheduled or unscheduled emergency maintenance. Authorized Users must be subject to confidentiality, use restrictions and intellectual property provisions at least as restrictive and protective of Us as those set forth in the Agreement. You and Your Authorized Users will access and use the Platform solely in accordance with the conditions and limitations set forth in the Agreement and any Platform documentation, including those set out in Our “Technical Conditions and Rules for using the Agent” document (Our “Agent Rules and Requirements”) (a copy of which will be made available to You) and any end user license agreement applicable to the Platform and/or Technology (as defined below) (“Permitted Use”). The authorization set forth in this paragraph is non-exclusive and non-transferable. You will be solely and exclusively responsible for any breach by Your “Representatives” which, for purposes of the Agreement, means Authorized Users and any other persons accessing the Platform directly or indirectly through You or Your Authorized Users. For the avoidance of doubt, the Permitted Use does not include use by Your corporate parents, subsidiaries or affiliates, unless expressly and specifically stated otherwise in the Order Form.
Acknowledgement Regarding Your Materials and AI Generated Outputs. As part of Your use and access to the Platform, You may develop and thereafter convert one or more of Your structured scripts and/or protocols (each a “Script”) into voice recordings and protocols for the purpose of the Agents’ interactions with Your Clients (such recordings and protocols, “AI Protocols,” and together with any other AI-generated outputs from the Platform and/or the Agent, collectively, “Outputs”). You acknowledge and agree that: (i) Outputs are generated by the Platform and/or the Agent based on information, content or other materials provided by You, Your Authorized Users or Your Clients, including, without limitation, Scripts and AI Protocols (collectively, “Your Materials”); (ii) as a result, as between You and Us, You are solely and absolutely responsible for Your Materials and all Outputs (including all AI Protocols and other Outputs), including the accuracy, quality and legality of any thereof; (iii) We will make no effort (and are no way obligated) to validate any of Your Materials or any Outputs for completeness, correctness, accessibility or legality; (iv) due to the nature of machine learning, Outputs may not be unique and the Platform and/or the Agent may generate the same or similar output for other Platform users; (v) while we have safeguards in place, the Platform and/or Agents may occasionally generate incorrect, incomplete and/or misleading information; and (v) as a result, We cannot and do not make any guaranty regarding any Output (including any AI Protocols or any other Outputs), including with regard to its accuracy, quality, legality or noninfringement.
Restrictions. You will not, and will not permit others (including any Representatives) to, directly or indirectly: (i) reverse engineer, decompile, disassemble, decode, adapt, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform, including any that of any Agent or of any related or underlying tool, module, software, documentation or data (collectively, “Technology”); (ii) modify, translate, or create derivative works of, from or otherwise based on the Platform or any Technology, in whole or in part; (iii) access and/or use the Platform or any Technology for timesharing or reselling purposes or otherwise for the benefit of a third party (other than expressly authorized by the Permitted Use); (iv) upload to or otherwise use the Platform or any Technology to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or material in violation of third-party rights, including privacy rights; (v) upload to or otherwise use the Platform or any Technology to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example (but not by way of limitation), viruses, worms, time bombs and Trojan horses); (vi) interfere with or disrupt the integrity or performance of the Platform or any Technology (in whole or in part); (vii) attempt to gain unauthorized access to the Platform, the Technology or any of their related systems or networks, or access or use the Platform or any Technology other than by an Authorized User through the use of his or her own then valid Access Credentials (as defined below); (viii) permit direct or indirect access to or use of the Platform or any Technology in a way that circumvents a contractual usage limit; (ix) frame or mirror the whole or any part of the Platform (including any Technology); (x) access the Platform and/or the Technology (in whole or in part) for benchmarking purposes or in order to build a competitive product or service; (xi) remove any proprietary notices or labels of or from the Platform or the Technology; or (xii) access or use the Platform or any Technology in any way that violates the Agreement, any third-party rights, or any applicable laws, rules, regulations or orders having the force of law (collectively, “Laws”), including, without limitation, all applicable anti-spam, telemarketing, export control, privacy, and anti-terrorism laws and regulations.
Modifications to or of the Platform.
Maintenance Releases; New Features. We may from time to time make or issue updates, upgrades, releases, or other adaptations or modifications of the Platform in whole or in part (collectively, “Maintenance Releases”). We may also make one or more new versions, features or modules of the Platform (in whole or in part) (collectively, “New Features”) available to You under the terms and conditions of the Agreement. Maintenance Releases and/or any New Features made available to You (if any) will constitute a part of the Platform for purposes of the Agreement. For the avoidance of doubt, We reserve the right to offer any New Features subject to Our then current, commercial pricing for the same. You acknowledge and agree that certain Maintenance Releases and/or New Features may require Professional Services for purposes of installation, configuration and/or implementation, which will be subject to Your payment of Our applicable Professional Services fees then in effect.
Termination or Discontinuation of Features, Functionalities, Data or Services. Notwithstanding anything to the contrary in the Agreement or otherwise, You acknowledge and agree that We may from time to time discontinue, modify or otherwise alter certain features, functionalities, modules, components or other aspects of the Platform, in whole or in part, provided, however, that We will use commercially reasonable efforts not to materially degrade the key features or functionality of/for the Platform during the Term other than as described in Section 1(e)(vi) in respect of Third-Party Services, or We determine reasonably necessary to: (x) prevent, mitigate or address a material security issue, (y) to comply and/or ensure compliance with applicable Laws (including a judicial or other governmental demand or order, subpoena, or law enforcement request), or (z) to prevent any fraudulent, misleading, unlawful or unethical activities, or any activities that could reflect poorly on Us or negatively impair Our goodwill.
Third-Party Services. You acknowledge and agree that: (i) the Platform will be hosted by a third-party and that one or more of the features, functionalities, data or services available on or via the Platform may made available by third parties (all such third-parties, “Third-Party Service Providers” and such hosting, functionalities or services, “Third-Party Services”); (ii) the Platform and/or certain features or functionalities rely on API integration for certain features and functions, but that API integration has its own inherent level of unpredictability and inconsistency that is out of Our control, and that as such; (iii) We will have no liability for downtime or unavailability of, or errors or other issues in respect of, features, functionalities or data on the Platform (including any Outputs thereof) caused in whole or in part by any Third-Party Services, Third-Party Service Providers, or API integration failures; (iv) Third-Party Service Providers may impose restrictions on use of the particular Third-Party Service, in addition to other terms and conditions, including without limitation, those set forth in any applicable terms and conditions agreed to by or otherwise made available to You (collectively, “Third-Party Requirements”); (v) You are solely responsible for compliance with, and will ensure that You and all Authorized Users comply with, all Third-Party Requirements; and (vi) We may at any time terminate and/or discontinue any Third-Party Services, including as a result of termination of Our relationship with the applicable Third-Party Service Provider, provided that We will endeavor to avoid termination or discontinuation as set forth in Section 1(d)(ii) (if and as applicable), and that to provide You with advance written notice of any such termination or discontinuation if reasonably practical.
Limited Customization Only. For the avoidance of doubt, other than as expressly set forth in an Order Form or Statement of Work (as defined below), and other than Our standard configuration options available via the internal facing portions of the Platform, the Platform and Our Professional Services will not include any customization of any feature, functionality, product, or other materials available on or via the Platform.
Project and Account Managers. Each You and We will designate project managers to manage the relationship under the Agreement. Subject to Section 13, the project managers may communicate via telephone or email regarding the Agreement, and provided, however that We may rely and act on instructions, approvals or other communications of Your representatives who We believe have authority to provide such instructions, approvals or other communications.
PROFESSIONAL SERVICES.
Professional Services. From time to time during the Term, We may provide you with certain professional services (“Professional Services”), including implementation services (which may include initial set-up, assistance with development and/or conversion of Scripts into AI Protocols, and other configuration and/or onboarding related services), training, customization, and/or customer support services, in each case, as described in the Agreement or in the Order Form, or as otherwise mutually agreed to by You and Us in writing in a mutually executed Statement of Work that is entered pursuant to and incorporates the Agreement by reference (“Statement of Work” or “SOW”). Unless expressly set forth in the Order Form or a Statement of Work, any Professional Services provided are Our standard Professional Services, and any services beyond the scope of such standard Professional Services will be deemed out of scope and will be provided only pursuant to a mutually agreed upon change order or a separate Statement of Work.
Acceptance Testing. To the extent an Order Form and/or SOW identifies specific “deliverables” in respect of certain Professional Services, then the following acceptance testing procedure will apply. Following delivery of a deliverable, You will have a reasonable time, not to exceed three (3) Business Days (or such other period set forth in the applicable Order Form or SOW) (“Testing Period”) to conduct acceptance testing to evaluate whether the applicable deliverable materially conforms to the applicable specifications. We may observe or participate in all or any part of such testing. Promptly following completion of such testing, You will notify Us in writing of Your acceptance or, solely if such testing identified any material failure of the deliverable to conform to the applicable specifications (each, a “Nonconformity”), Your rejection. You will not unreasonably withhold Your acceptance and must include in any rejection notice a reasonably detailed description of the testing conducted, the results thereof, and each identified Nonconformity. Each deliverable will be deemed accepted by You on the expiration of the Testing Period therefor if You have not delivered a notice accepting or rejecting such deliverable prior to such expiration. Following receipt of a rejection notice, We will use commercially reasonable efforts to remedy all Nonconformities and re-deliver the applicable deliverable as promptly as practical under the circumstances. On re-delivery, You will have an additional Testing Period to conduct acceptance testing to determine whether each Nonconformity has been remedied. We and You will repeat the process set forth in this Section until You have accepted the applicable deliverable.
Effect of Your Delay or Delays or Issues Caused by You or by Your or Third Party Systems. We will not be responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Your Systems (as defined below), by any third parties (including the quality of third-party communication services or the performance of telecommunications service providers), or by Your or Your Representative’s delay in performing, or failure to perform, any of Your obligations under the Agreement or to perform any act (including, without limitation, the making of any determination, decision and/or authorization) as otherwise reasonably necessary for Us to perform any Professional Services or to otherwise make the Platform and/or any Technology available to You. In the event of any such delay or failure, We may extend all or any subsequent milestone dates as We deem reasonably necessary and, if the delay or failure prevents Us from invoicing for all or a portion of any Professional Services Fees (e.g., because We are unable to deliver or meet an agreed upon milestone or deadline, and all or a portion of Fees are otherwise payable only on delivery or meeting of the particular milestone or deadline), then We may issue one or more interim invoices, pro rata based on the work completed (and You will pay such invoice as set forth in Section 5(a) of these Terms). For the avoidance of doubt, You will be responsible for payment for additional hours of work caused by any delay or failure caused in whole or in part by You or Your Representatives at the rates in effect for the relevant Professional Services at the time of such delay or failure.
YOUR RESPONSIBILITIES.
Cooperation. Each of You and We will cooperate with the other in all respects, including provision of information, access and support as may be reasonably required for purposes of Our and Your (respective) performance under the Agreement. Without limiting the generality of the foregoing, You will ensure that: (i) Your Authorized Users and/or information technology team responds to Our requests for information, materials or cooperation promptly and without undue delay, and in any event, within three Business Days of the request; (ii) You provide Us with prompt notice of any error, downtime or other issue of or associated with the Platform and/or the Agent or other Technology by email to sales@powerstaff.ai (or such other communication mechanism reasonably requested by Us); and (iii) You provide Us with reasonable access to appropriate personnel, network, and systems (including, without limitation, any third party vendors and/or systems), as reasonably required for purposes of Our performance under the Agreement. For purposes of the Agreement, “Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in Delaware are authorized or required by Law to be closed for business.
Access Credentials. You and each Authorized User may be issued a username, identification number, password, link, or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Platform (“Access Credentials”). You will ensure that Your Authorized Users use strong Access Credentials even if the Platform permits simple Access Credentials. You have and will retain sole responsibility for the security and use of all Access Credentials, including for any losses that You or any third party may suffer as a result of the authorized or unauthorized use of any Access Credentials and/or Your Systems by any third party. We reserve the right to disable any Access Credentials at any time in Our discretion if, in Our opinion, You or any of Your Authorized Users has violated any provision of the Agreement.
Your Systems; Technical Requirements. You and each of Your Authorized Users will and are responsible (at Your sole cost and expense) for: (i) obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform (including the Agents), including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, mobile devices and the like (collectively, “Your Systems”); (ii) maintaining the security of all of Your Systems; (iii) all uses of Your account(s) or Your Systems by Your Representatives; (iv) acquiring any third party rights, licenses, data and/or consents necessary to connect to, integrate with, access or otherwise use the Platform or any feature, functionality or tool thereof, in whole or in part, and/or to permit us to access and use Your Materials, and cause the Platform and/or the Agent to generate Outputs; and (v) compliance with all technical requirements and conditions of and relating to Your use of the Platform and/or the Agent or other Technology, including without limitation, Our Agent Rules and Requirements. You acknowledge and agree that failure to obtain and properly maintain Your Systems, to meet any applicable technical requirements of or relating to the Platform, or to obtain any necessary third-party rights, licenses and/or consents, may cause the Platform and/or results of Your use thereof (including Outputs) to in whole or in part be unavailable, to function ineffectively or inappropriately, and/or to be inaccurate, incomplete, misleading or noncompliant with applicable specifications or Laws. We will in no event be responsible for any downtime, losses, failures, claims, damages or liabilities that arise as a result of Your failure to comply with the requirements set forth in the Agreement, including this Section. You acknowledge that use of the Platform requires one or more compatible devices (messaging rates may apply), Internet access (fees may apply), and certain software (fees may apply), and may require obtaining updates or upgrades from time to time. High speed Internet access is recommended. You acknowledge and agree that compliance with the requirements set forth in this Section, which may be changed from time to time, are Your responsibility.
Your Materials, Your Services and Your Use of the Platform. You will ensure (and represent, warrant and covenant) that Your Services, Your Materials and Your activities in connection with, use of or access to the Platform and each Agent are accurate, complete and do not and will not violate any Laws or infringe on a third party’s intellectual property or other rights. You will be solely and completely responsible for the accuracy, quality and legality of any and all of Your Materials and Outputs, the means by which You acquired Your Materials, and the access and use of the same by You, Your Representatives and by Us as contemplated by the Agreement. As between You and Us, You will be solely responsible for the administration of Your Services to Your Clients, and for determining any eligibility or legal requirements or conditions for Your Services (and whether they have been met).
Compliance with Laws. Each of You and We will perform Your and Our respective obligations under the Agreement in accordance with applicable Laws. For the avoidance of doubt, You acknowledge and agree that the Platform and any Professional Services we provide You do not guaranty Your compliance with applicable Laws, and that Your compliance with applicable Laws is all ultimately Your sole and exclusive responsibility. Without limiting the generality of the foregoing, You acknowledge that We do not and will not provide any legal, accounting, or tax advice, and that any feedback, content or materials provided by Us or the Platform (including any Outputs, such as, without limitation, AI Protocols) do not constitute legal or other professional advice, and that You are solely responsible for determining the legality, validity, enforceability accuracy and quality of and non-infringement by all of Your Materials and Output and Your use of the Platform. By execution of the Order Form, You represent, warrant, covenant and certify that:
Your Scripts and resulting AI Protocols and Outputs, and Your access and use of the Platform as contemplated by the Agreement, in each case, complies in all respects with all applicable Laws (including, without limitation, those requiring opt-ins or consents from Client’s actual or potential customers and anti-spamming or telemarketing regulations) and does not infringe on or misappropriate any third-party rights (including, without limitation, intellectual property and/or privacy rights); and
A competent and qualified representative of Yours has reviewed and approved all Scripts existing as of the Effective Date, and will review and approve all Scripts and all AI Protocols and Outputs generated after the Effective Date, in each case, prior to making live production use of any of the same (each such reviewed and approved Script, AI Protocol and Output, “Certified Materials”) for the purpose of, among other things enabling You to make the representation/certification set forth in subsection (i) of this Section 3(e).
TERM AND TERMINATION.
Term. Subject to earlier termination as provided below, the term of the Agreement commences on the date of full execution of the Order Form (“Effective Date”), will continue for term specified in the Order Form and will automatically renew if and as set forth in the Order Form (collectively, the “Term”), unless sooner terminated as set forth in the Order Form or these Terms. All SOWs will terminate immediately upon termination of the Term.
Termination. Either party may terminate the Term or any SOW: (i) immediately, by providing the other party with written notice, if such other party is in material breach of the Agreement or the Statement of Work that is not capable of cure (as determined by the non-breaching party, acting reasonably) or (if capable of cure) is not cured within thirty (30) days of receipt of written notice of such breach, provided, however, that if the breach is of such a nature that it cannot reasonably be cured within 30 days, then the Term (or SOW, as applicable) will not terminate unless the breaching party fails to commence and diligently pursue the same within 30 days, and to cure the breach within 60 days; (ii) upon written notice to You if you fail to timely pay any amounts due under the Agreement and such amount remains unpaid for 10 days following Your receipt of written notice (including email) of late payment, or if You fail to timely pay any amounts due under the Agreement in any two consecutive months or three times in any six month period; or (iii) upon written notice, 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; or (iv) as otherwise expressly set forth in the Agreement. Except as set forth in the last sentence of Section 4(a) of these Terms, termination of a SOW will not affect any other then-current SOWs, which will remain in full force and effect in accordance with their respective terms.
Effect of Termination. On termination of the Term for any reason: (i) You will pay all Fees for access to the Platform and for any Professional Services provided up to and including the effective date of termination; and (ii) You will within 14 days of the effective date of termination return or certify the permanent destruction of all of Our Confidential Information (as defined below) in Your possession or under Your control. All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
Suspension of Access. We may, directly or indirectly and by any lawful means (including any disabling device), suspend or otherwise deny Your or any Representative’s access to or use of all or any part of the Platform without incurring any resulting obligation or liability, if: (i) You fail to pay any amount when due under the Agreement, and such failure continues for ten (10) days or more after notice of nonpayment from Us; (ii) You or any Representative: (x) have failed to comply with any term of the Agreement; (y) have accessed or used the Platform beyond the scope of the authorization granted or for a purpose not authorized or intended under the Agreement; or (z) are, have been, or are likely to be involved in any fraudulent, misleading, unlawful or unethical activities, or in any activity that could reflect poorly on Us or negatively impair Our goodwill (in each case, in Our sole and absolute discretion); provided that, in the case of any suspension pursuant to this subsection (ii), We will provide You with written notice of Our intent to suspend or deny access or use, such notice which may be provided via email and which will include the basis for the same, and will proceed with such suspension or denial only if You fail to adequately correct or remediate the activity or behavior within two days of Your receipt of such notice from Us; (iii) the Term is terminated or expires; (iv) We deem it necessary or desirable in order to prevent, mitigate or address a material security issue; or (v) We receive a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Us to do so; provided, that, in the case of any suspension under subsections (iv) or (v) of this Section, We will use commercially reasonable efforts to provide You with as much advance notice as practical under the circumstances. This paragraph does not limit any of Our other rights or remedies whatsoever, including any rights or remedies at law, in equity or under the Agreement.
FEES AND PAYMENT.
Fees. You will pay Us applicable fees as described in the Order Form or SOW for Your subscription to the Platform and the purchase of applicable Professional Services (the “Fees”). Unless otherwise set forth in the Order Form or applicable Statement of Work, all invoiced amounts are due within five (5) days of the invoice date. In the case of a Fee based on a number of units (e.g., calls), where usage for a particular billing period exceeds the limit set by Order Form, You will be required to either purchase additional packages or switch to a subscription that contemplates higher usage.
Payment Terms. You will pay all Fees in US Dollars by ACH or wire transfer of immediately available funds to an account designated in writing by one of Our executive officers. All amounts payable to Us under the Agreement will be paid by You in full without setoff or withholding for any reason or other than a deduction or withholding of tax as may be required by applicable Law. If any amount is not received by Us by the due date, then commencing on the 5th Business Day after notice from Us of default and without limiting Our rights or remedies, those charges will accrue late interest at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower.
Changes to Fees. All recurring Fees are subject to an automatic yearly price adjustment on each anniversary of the Effective Date equal to the greater of 5% or the percentage increase in CPI (all items) as of the end of the calendar month immediately preceding such anniversary date. Additionally, We may pass on immediately any recurring cost increases from vendors (e.g., subscription costs for Third Party Products, or cost of services provided by communication operators, providers, or other communication service suppliers). Such adjustments are not a change of the Agreement or the applicable Order Form and will not require a change order or Your approval.
Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You will be responsible for all Taxes associated with Your purchase of access to the Platform and all Professional Services, other than U.S. taxes based on Our income.
Future Functionality. You acknowledge and agree that Your entrance into the Agreement is not contingent on the delivery of any future functionality or features of the Platform or any Professional Services, or dependent on any oral or written private or public comments made by Us regarding any such future functionality or features, in each case, unless otherwise expressly stated on the Order Form or a SOW.
OWNERSHIP AND LICENSES.
Ownership.
You (or Your Clients and/or licensors, as applicable) will own all right, title and interest in and to Your Materials (including Your name, brand, logo and other marks), as well as in and to the content of any Outputs, including the content of AI Protocols. Subject to Your compliance with the Agreement, We hereby assign to You all of the rights We may have in the content of any Outputs. For the avoidance of doubt, You are solely and absolutely responsible for the content of all Outputs, including for verifying the accuracy, completeness, appropriateness or legality of the same. See Section 1(a) and Section 8(b) for further information.
We or Our licensors will own and retain all right, title and interest in and to the following (collectively, “Our Property”): (1) the Platform, the Technology (including the Agents and any AI models), any and all any know-how, methodologies, ideas, tools, approaches and other similar intellectual property underlying the Platform, Technology (including the Agents and any AI models) and/or Professional Services, and all improvements, enhancements or modifications to any of the foregoing (including, without limitation, any new, updated or otherwise modified modules and/or frameworks) created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Us, whether in connection with the Agreement or otherwise, and whether alone or together with You or any other third party or parties; (2) other than the content of Outputs, any work product, including any software, applications, inventions or other technology or intellectual property developed, authored and/or reduced to practice in connection with Our making the Platform available to You, including as the result of any customer support or other Professional Services provided to You (“Results”); (3) the “Cybernet AI” name, brand, marks and other similar intellectual property; (4) any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Your Representatives relating to the subject matter of the Agreement (collectively, “Feedback”), as well as any improvements, enhancements or other modifications created, prepared, produced, authored, edited, amended, conceived or reduced to practice by Us (whether alone or together with You or any other third party or parties) arising out of or relating to such Feedback (whether to the Platform, any Technology (including the Agents or any AI models) or otherwise); (5) any and all performance data, test or evaluation results, or other metrics derived from the Platform or Your use thereof or Our performance hereunder, including Aggregated Data (as defined below); and (6) all intellectual property rights related to any of the foregoing.
Each of You and We expressly reserve all other rights in and to the foregoing. During and after the Term, each party will cooperate with the other to do any and all things which reasonably necessary or desirable to establish, maintain, protect and enforce a party’s exclusive ownership of the property identified in this Section.
Use of Your Materials. You grant Us a worldwide, fully-paid up, royalty-free license to Us and Our representatives and personnel to use Your Materials as necessary for Us to provide make the Platform available to You and to perform applicable Professional Services. Additionally, You acknowledge and agree that We may: (i) use and display Your name, logo, and non-Confidential Information for marketing purposes; (ii) analyze Your Materials and use resulting data and information to (x) improve or enhance the Platform and our Agents (including Our machine learning and artificial intelligence models and technologies) (y) for other development, diagnostic and corrective purposes in connection with the Platform and/or any Technology, and (z) to the extent relevant to the calculation of Fees or other amounts due by You hereunder, to pursue or validate such calculation and otherwise perform reasonably related activities; and (iii) utilize any of Your Materials or any data derived therefrom on an aggregated and anonymized basis (“Aggregated Data”) for Our business purposes, including external commercial purposes. You covenant, represent and warrant that You have all rights, authorizations and consents necessary to provide Us with all of Your Materials, and that Your Materials, the use thereof by Us in accordance with the terms of the Agreement, and Your activities in connection with or use of the Platform do not and will not violate any applicable Laws, or infringe on a third party’s intellectual property or other rights (including any contract rights).
CONFIDENTIALITY.
Confidential Information. In connection with the Agreement, including any Statement of Work, You or We (as the “Disclosing Party”) may disclose or make available Confidential Information to the other (as the “Receiving Party”). Subject to Section 7(b) of these Terms, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case, whether or not marked, designated, or otherwise identified as “confidential” and whether or not disclosed or made available on, before or after the parties’ execution of the Agreement. Without limiting the foregoing, Our Confidential Information includes non-public portions of Our Property and the financial terms of the Agreement, and Your Confidential Information includes any non-public portions of Your Materials and the financial terms of the Agreement.
Exclusions from Confidential Information. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or any applicable party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without any obligation of confidentiality owed to the Disclosing Party or any other applicable party; (iii) is received from a third party without any obligation of confidentiality owed to the Disclosing Party or any other applicable party; or (iv) was independently developed by the Receiving Party. The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Receiving Party claiming such exception.
Legally Compelled Disclosures. If the Receiving Party is compelled by Law to disclose any Confidential Information, then, to the extent permitted by Law, the Receiving Party will: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7(c) of these Terms; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7(c), the Receiving Party remains required by Law to disclose any Confidential Information, then the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s outside legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
Confidentiality Obligations. The Receiving Party will: (i) use commercially reasonable efforts to safeguard Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (ii) use Confidential Information for the sole purpose of performing its obligations or exercising its rights under the Agreement (and in Our case, as otherwise set forth in these Terms; and (iii) restrict disclosure of Confidential Information to those of its officers, directors, employees, professional advisors, contractors, agents and representatives with a need to know such information for the sole purpose of performing its obligations or exercising its rights under the Agreement (and in Our case, as otherwise set forth in these Terms).
REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
Mutual Representations. Each of You and We represent to the other that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented in the Agreement under the Laws of its jurisdiction of incorporation, organization or chartering; (ii) it has the full right, power and authority to enter into the Agreement and each Statement of Work (if applicable); (iii) the execution of the Agreement by its representative has been duly authorized by all necessary corporate action; (iv) when executed and delivered by both parties, the Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar Laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity; and (v) the execution of the Agreement does not violate or cause the breach of any other agreement to which it is a party.
Additional Representations by Us. We will: (i) use commercially reasonable efforts consistent with prevailing industry standards to perform and maintain the Platform in a manner which minimizes errors and interruptions in the Platform; (ii) perform Professional Services (if any) in a professional and workmanlike manner in accordance with commercially reasonable industry standards and practices for similar services; and (iii) We will implement and maintain commercially reasonable procedures and controls tailored to prevent the Platform from causing the introduction of malicious code into Your information technology environment. In the event of a breach by Us of the foregoing, We will use commercially reasonable efforts to re-provide the Platform and/or re-perform the applicable Professional Services at no additional cost to You, provided that, should We fail to remedy the same within a commercially reasonable time period, Your sole remedy will be to exercise Your termination rights hereunder.
Disclaimer. You acknowledge that the Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Us or by third-party providers, or because of other causes beyond Our reasonable control. We will use commercially reasonable efforts to provide advance notice by e-mail of any scheduled service disruption and to reinstate the Platform. HOWEVER, WE DO NOT WARRANT THAT ACCESS TO THE PLATFORM (OR ANY TECHNOLOGY) WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY THAT THE PLATFORM, ANY TECHNOLOGY, ANY PROFESSIONAL SERVICES, ANY DELIVERABLES OR OUTPUTS, AS WELL AS ANY FEEDBACK, GUIDANCE, SUGGESTIONS AND/OR RECOMMENDATIONS PROVIDED BY US (COLLECTIVELY, “SUGGESTIONS”), OR ANY RESULTS FROM YOUR OR ANY THIRD PARTY’S USE OF ANY THEREOF (“OUTCOMES”) WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS OR ACHIEVE ANY PARTIUCLAR RESULT, INCLUDING YOUR COMPLIANCE WITH ANY APPLICABLE LAWS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, THE PLATFORM (INCLUDING THE TECHNOLOGY), ALL PROFESSIONAL SERVICES, DELIVERABLES, SUGGESTIONS AND OUTCOMES ARE PROVIDED “AS IS” AND WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS IMPLIED, STATUTORY OR OTHER, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE WITH RESPECT TO THE SAME. YOU ARE SOLELY RESPONSIBLE FOR YOUR ACTIONS IN CONNECTION WITH THE PLATFORM, THE TECHNOLOGY, ANY PROFESSIONAL SERVICES, ANY DELIVERABLES, SUGGESTIONS AND OUTPUTS. ALL THIRD-PARTY SERVICES INCLUDED IN THE PLATFORM OR ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND SUBJECT TO ANY APPLICABLE THIRD-PARTY SERVICE PROVIDER TERMS AND CONDITIONS. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY SERVICES IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY SERVICE PROVIDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT WE MAKE NO WARRANTY REGARDING ANY OUTPUTS WHICH, AS NOTED ABOVE, MAY OCCASIONALLY CONTAIN ERRORS, OR INCORRECT, INCOMPLETE AND/OR MISLEADING INFORMATION.
INDEMNIFICATION. You will indemnify, defend and hold Us harmless from and against any and all claims, losses, damages, judgments, liabilities costs, and expenses (including attorneys’ fees and the costs of enforcing this provision and of pursuing any insurance providers) arising from or relating to: (i) any of Your Materials, including any Certification Materials, and any use, disclosure or storage of the same by Us or on Our behalf in accordance with the Agreement; (ii) Our compliance with any specifications or directions provided by You or your Representatives or on Your their respective behalf’s; (iii) Your failure to comply with any applicable Laws (including in connection with Your use of the Platform or any Technology and/or any noncompliance by Your Materials or Outputs or any other Certification Materials), or any of Your other obligations, covenants, representations and warranties set forth in the Agreement; or (iv) Your use of the Platform, any Agent, or Outputs or the results of any thereof, including, without limitation, any actions of Your Clients. For the avoidance of doubt, You acknowledge and agree that You are solely responsible for the content of all Outputs and any and all liabilities, losses, costs, claims, and expenses arising out of or relating to the same.
INFRINGEMENT MITIGATION. If all or any portion of the Platform and/or the Technology is, or in Our opinion is likely to be, claimed to infringe misappropriate, or otherwise violate any third-party intellectual property right, or if Your use of the Platform or the Technology is in whole or in part enjoined or threatened to be enjoined, then We may, at Our option and sole cost and expense: (a) replace or modify the Platform (in whole or in part) so as to make the Platform (as replaced or modified) non-infringing, while providing substantially similar features and functionality, and in which case such replacements or modifications will constitute a part of the Platform for purposes of the Agreement; (b) obtain for You a right to continue using the Platform as materially contemplated by the Agreement; or (c) if neither of the foregoing is commercially practicable in Our sole discretion, terminate the Term (or Your rights to access and use the infringing component of the Platform) and provide You with a refund of any prepaid, unused fees for the Platform or the infringing component, as applicable. THIS SECTION 10 SETS FORTH YOUR SOLE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM, OR ANY TECHNOLOGY OR PROFESSIONAL SERVICES OR OTHER MATEIALS PROVIDED BY OR MADE AVAILABLE BY US UNDER THE AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
LIMITATION ON LIABILITY; MUTUAL WAIVER OF CLASS ACTION PARTICIPATION.
IN NO EVENT WILL WE OR ANY OF OUR LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE PLATFORM (IN WHOLE OR IN PART); (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF OURS AND OUR LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY YOU TO US UNDER THE AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Neither We nor You may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to the Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. WE AND YOU ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
FORCE MAJEURE. Except for a party’s obligations to pay Fees, each party will be excused from performance of its obligations for any period and the time of performance will be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under the Agreement, as a result of acts of God, any governmental authority, war, pandemic, epidemic, health crisis, government order or lockdown, civil disturbance, court order, labor dispute or any other cause beyond its reasonable control, including, in Our case, Third Party Service malfunctions (such as interruption of Third Party Service services or functions) hurricanes, inclement weather, and failures or fluctuations in electrical power, heat, light, telecommunication equipment or lines or any other equipment or network outside of Our reasonable control.
NOTICES. All notices, demands, requests or other communications which may be or are required to be given, served, or sent by a party to the other party pursuant to the Agreement will be in writing and will be delivered electronically to the email addresses set forth below. Either party may change its email address for notice by notifying the other parties of such change in accordance with this Section. If to You: to the email address set forth on the Order Form. If to Us: to the email address set forth on the Order Form, marked to the Attention of “Legal Notice,” and in all cases, with copy (but which will not constitute notice) to Info@cyber-net.ai.
GOVERNING LAW; DISPUTE RESOLUTION. The Agreement will be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to conflict of law principles. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to the Agreement or to the rights or duties of the parties under the Agreement. The parties will cooperate and attempt in good faith to resolve any dispute or claim arising out of or relating to the Agreement or the construction, interpretation, performance, breach, termination, enforceability or validity thereof (a “Dispute”) promptly by negotiating between persons who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration and performance of the provisions or obligations of the Agreement that are the subject of the Dispute. Any Dispute which cannot otherwise be resolved as provided above after the parties have negotiated the resolution of the Dispute for at least fifteen (15) business days will be resolved by arbitration conducted in Kent County, Delaware in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment upon the award rendered by the arbitral tribunal may be entered in any court having jurisdiction thereon. The arbitral tribunal will consist of a single arbitrator mutually agreed upon by the parties, or in the absence of such agreement within thirty (30) days from the first referral of the Dispute to the American Arbitration Association, designated by the American Arbitration Association. The arbitral award will be final and binding. Each party will bear its own fees, costs and expenses of the arbitration, and its own legal expenses, attorneys’ fees, and costs of all experts and witnesses, provided, however, that the arbitrator will and is hereby directed to award arbitration costs, including legal, auditing and other fees to the prevailing party in the arbitration proceeding. Each party retains the right to seek judicial assistance: (a) to compel arbitration, (b) to obtain interim measures of protection prior to or pending arbitration, (c) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or Confidential Information, or (d) to enforce any decision of the arbitrator, including the final award. The arbitration proceedings contemplated by this subsection will be as confidential and private as permitted by applicable Law. To that end, the parties will not disclose the existence, content or results of any proceedings conducted in accordance with this Section, and materials submitted in connection with such proceedings will not be admissible in any other proceeding, provided, however, that this confidentiality provision will not prevent a petition to vacate or enforce an arbitral award, and will not bar disclosures required by any Laws. Neither party may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to the Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. EACH PARTY ACKNOWLEDGES THAT THE PRECEDING SENTENCE WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
MISCELLANEOUS. You may not assign the Agreement without Our prior written consent; provided, however, that You may assign the Agreement to a third party who/which is not a competitor to Us and who/which is acquiring all or substantially all of Your equity interests or assets without Our prior written consent (subject to Your provision to Us of written notice of such acquisition as soon as reasonably practical upon the closing of such acquisition). No delay or omission by Us to exercise any right or power under the Agreement will impair any such right or power or be construed as a waiver thereof. A waiver by Us in any one instance of any of the covenants, conditions or agreements to be performed by You will not be construed as a waiver with respect to any succeeding instance in which the same provision may apply. The Agreement may not be amended except by a writing that expressly identifies itself as an amendment and that is signed by authorized representatives of both parties. The headings contained in the Agreement are for convenience of reference only, are not to be considered a part of the Agreement and will not limit or otherwise affect in any way its meaning or interpretation. The Agreement is for the sole benefit of the parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person (including Your customers or clients) any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of the Agreement. If any provision of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement, which will remain in full force and effect. The Agreement (including the Order Form and each Statement of Work) represents the entire understanding and agreement between the parties with respect to the subject matter hereof, and supersede all other negotiations, understandings and representations (if any) made by and between such parties, whether orally or in writing. The Order Form and each Statement of Work may be executed in counterparts, each of which will be an original, but all of which together will constitute one and the same instrument. Confirmation of execution by electronic transmission signature page or other electronic execution means will be binding, and each party irrevocably waives any objection that it has or may have in the future as to the validity of any such electronic execution.
