Subscription Agreement
This Subscription Agreement (“Agreement”), effective on the date of first acceptance (the “Effective Date”), is by and between RightResponse AI, LLC, a Delaware limited liability company (“RightResponse AI”), and the Customer accepting this Agreement (the “Customer”), hereinafter individually referred to as a “Party” and/or together referred to as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Order (as hereinafter defined).
BY ACCESSING AND/OR USING THE RIGHTRESPONSE AI PLATFORM, CUSTOMER (A) ACKNOWLEDGES THAT IT HAS READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENTS THAT CUSTOMER IS OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS. IF CUSTOMER IS ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY, CUSTOMER CERTIFY THAT IT HAS AUTHORITY TO BIND THAT ENTITY. IF CUSTOMER DOES NOT HAVE THAT AUTHORITY OR ARE NOT SURE IF CUSTOMER HAS THAT AUTHORITY, CUSTOMER MAY NOT ACCEPT THIS AGREEMENT AND CUSTOMER MAY NOT USE THE RIGHTRESPONSE AI PLATFORM IN ANY WAY.
A. RightResponse AI provides a platform for generating, analyzing and responding to Reviews, as well as other functions and features associated with Review and Reputation Management (the “RightResponse AI Platform”); and
B. Customer desires to obtain the right to access and use the RightResponse AI Platform, and RightResponse AI is willing to grant Customer such rights, all subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, RightResponse AI and Customer agree as follows:
1. Overview
1.1. Structure.
This Agreement shall apply to Customer’s access and use of the RightResponse AI Platform as further described in an order entered into hereunder (each an “Order”) that sets forth (i) usage parameters (if any) associated with Customer’s access and use of the RightResponse AI Platform; (ii) fees and expenses (the “Fees”), (iii) the applicable subscription period (if any) for usage of the RightResponse AI Platform; and (iv) any other commercial terms agreed upon by the Parties. If there are any terms and conditions in an Order that conflict with the terms and conditions in this Agreement, then the terms and conditions in such Order shall take precedence to those in this Agreement solely with respect to such Order.
2. RightResponse AI Platform Terms
2.1. Grant of Rights.
Subject to the terms of this Agreement, RightResponse AI grants to Customer a limited, personal, revocable, non-exclusive, non-transferable, non-sublicensable right during the subscription term set forth in the applicable Order to allow users designed by Customer (“Authorized Users”) to access and use the RightResponse AI Platform. Customer will keep its credentials and Authorized Users’ credentials for the RightResponse AI Platform strictly confidential and will be responsible for all actions taken by an Authorized User or under an Authorized User’s account.
2.2. Usage Restrictions.
Customer shall not, directly or indirectly (i) use the RightResponse AI Platform for the benefit of anyone other than Customer and its Authorized Users; (ii) sell, resell, license, sublicense, distribute, make available, rent or lease RightResponse AI Platform to any third party, in whole or in part, in any form, whether modified or unmodified; (iii) use RightResponse AI Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (iv) use RightResponse AI Platform to store or transmit malicious code; (v) permit direct or indirect access to or use of any RightResponse AI Platform in a way that circumvents a contractual usage limit, or use any RightResponse AI Platform to access or use any RightResponse AI intellectual property except as permitted under this Agreement or corresponding Order, (vi) modify, copy, or create derivative works based on the RightResponse AI Platform or any part, feature, or function thereof, (vii) disassemble, reverse engineer, or decompile the RightResponse AI Platform or access it to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, or functions of the RightResponse AI Platform, or (c) copy any ideas, features, or functions of the RightResponse AI Platform; (viii) remove any proprietary notices from the RightResponse AI Platform; or (ix) use the RightResponse AI Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. RightResponse AI may suspend and/or terminate Customer’s access to any portion or all of the RightResponse AI Platform if RightResponse AI reasonably determines that (1) there is a disruption, security risk, threat or attack on any of the RightResponse AI Platform or to any other customer or vendor of RightResponse AI; (2) Customer is using the RightResponse AI Platform for fraudulent or illegal activities; (3) Customer fails to make payments of Fees when due and/or has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (4) RightResponse AI’s provision of the RightResponse AI Platform to Customer is prohibited by applicable law; (5) any vendor of RightResponse AI has suspended or terminated RightResponse AI’s access to or use of any third-party services or products required to enable Customer to access the RightResponse AI Platform; and (6) Customer and/or any Authorized User is in breach of any term(s) of this Agreement and/or any Order (any such suspension a “Service Suspension”). RightResponse AI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
2.3. Customer Responsibilities.
Customer shall (i) only access and use the RightResponse AI Platform in accordance with the terms of this Agreement, the applicable Order, and all of RightResponse AI’s online documentation, user guidance, training, and other materials relating to such RightResponse AI Platform, and applicable laws and government regulations; (ii) be responsible and liable for compliance with this Agreement by its Authorized Users; (iii) be responsible for the accuracy, quality and legality of all Customer Data, the means by which Customer acquired such Customer Data, Customer’s use of Customer Data with the RightResponse AI Platform, and the interoperation of any third party applications with which Customer uses the RightResponse AI Platform; (iv) prevent unauthorized access to or use of the RightResponse AI Platform, and notify RightResponse AI promptly of any such unauthorized access or use; (v) comply with terms of service of any third party applications with which Customer uses the RightResponse AI Platform; and (vi) obtain access and authorization for all data processing performed by RightResponse AI for Customer, including the right to perform any third party integrations. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the RightResponse AI Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, and web servers. To ensure compliance with the terms of this Agreement, RightResponse AI or its designated representative shall have the right to review and audit Customer’s use of the RightResponse AI Platform. Customer understands and agrees that its Authorized Users are subject to the RightResponse AI End User License Agreement available at rightresponse.ai/agreements/EULA-20240101.pdf and website Privacy Policy available at rightresponseai.com/legal/privacy-policy, and that such EULA and Privacy Policy are hereby incorporated by reference and made part of this Agreement. RightResponse AI may update the EULA of Use and Privacy Policy at any time, and Customer agrees that its Authorized Users will be subject to such updates upon written notice. In the event of any conflict between the EULA and/or Privacy Policy and the terms of this Agreement, the terms of this Agreement shall control.
2.4. Third-Party Software.
Customer understands and agrees that Customer’s use of any third-party software and/or third-party integrations associated with the RightResponse AI Platform (collectively, “Third Party Software”) and/or third-party services (i.e., lien search management) will be governed by such third party’s license terms and conditions. Customer understands and agrees that RightResponse AI is not responsible for Customer’s, Authorized User’s, and/or any third party’s obligations relating to any such Third-Party Software and/or third-party services, and RightResponse AI specifically disclaims any liability relating thereto. RightResponse AI will, to the extent permitted, pass through any terms provided by such third party.
3. Intellectual Property and Data Rights
3.1. Intellectual Property and Confidentiality.
Customer acknowledges and agrees that the RightResponse AI Platform, all data and intellectual property comprising and powering the RightResponse AI Platform, and any copies, updates, and/or derivative works of the RightResponse AI Platform, along with the right to make, have made, practice, employ, exploit, use, develop, reproduce, copy, distribute copies, publish, license, and/or create works derivative of any of the foregoing, exclusively belong to and are the property of RightResponse AI. The RightResponse AI Platform shall at all times remain RightResponse AI’s sole and exclusive property, and RightResponse AI retains the right to change or refine the RightResponse AI Platform at its discretion in service of Customer or to further its business objectives. RightResponse AI may, in its sole discretion, issue updates, bug fixes or other changes to the RightResponse AI Platform (each an “Update”) RightResponse AI will use commercially reasonable efforts to notify Customer of an Update that may materially impair Customer’s use of the RightResponse AI Platform. Customer acknowledges and agrees that RightResponse AI regards the RightResponse AI Platform, and other Confidential Information (as defined below) as its proprietary information and as confidential trade secrets of great value. Customer agrees not to provide or to otherwise make available in any form the RightResponse AI Platform, or any portion thereof, or any Confidential Information of RightResponse AI to any person other than as expressly permitted by this Agreement or any Order, without the prior written consent of RightResponse AI.
3.2. Customer Data.
As between RightResponse AI and Customer, Customer owns all right, title and interest in and to all data provided by or on behalf of Customer in connection with its access and use of the RightResponse AI Platform (collectively, the “Customer Data”). By providing any Customer Data to RightResponse AI, Customer represents and warrants that it has the unrestricted right to do so, and Customer and each Authorized User hereby grant to RightResponse AI a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license to access, use, display, publicly perform, reproduce, distribute, and otherwise analyze such Customer Data and perform all acts with respect to the Customer Data as necessary for RightResponse AI to provide the RightResponse AI Platform to Customer and Authorized Users hereunder. Customer is and shall remain solely responsible and liable for all such Customer Data submitted, uploaded, posted, transferred, provided, processed, and/or otherwise transmitted (“Transmit”) in connection with its access and use of the RightResponse AI Platform. Customer agrees that it will not, and will not permit anyone else to, directly or indirectly: (i) Transmit any Customer Data that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable; (ii) Transmit any Customer Data: (a) that Customer does not have the right to Transmit, under any law or contractual or fiduciary relationships; (b) that infringes, misappropriates, and/or violates any patent, copyright, trademark, trade secret, right of privacy, or other intellectual property right of any third-party; (c) that constitutes unsolicited or unauthorized advertising or promotional materials; or (d) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data; or (iii) forge headers or otherwise manipulate identifiers in order to disguise any Customer Data Transmitted through the RightResponse AI Platform. Although RightResponse AI has no obligation to screen, edit or monitor Customer Data, RightResponse AI reserves the right, and has absolute discretion, to remove, screen or edit Customer Data posted and/or stored in connection with the RightResponse AI Platform for any breach of this Agreement, and Customer is solely responsible for all such activity. Customer acknowledges and agrees that RightResponse AI has no control over, and shall have no liability for, any damages resulting from the use (including without limitation, republication) or misuse by any third party of information (including Customer Data) made public through or in connection with the RightResponse AI Platform. If Customer chooses to make any Customer Data publicly available, Customer does so at its own risk and RightResponse AI shall have no liability therefore. To the extent Customer requires RightResponse AI to process any personal data and/or personal information that is subject to the EU General Data Protection Regulation 2016/679, California Consumer Privacy Act of 2018, California Privacy Rights Act of 2020, or any other applicable data protection or privacy law, including any national laws or regulations implementing the foregoing, RightResponse AI will process and maintain such personal information and/or personal data consistent with applicable privacy laws and regulations.
3.3. Aggregated Statistics and Application Monitoring.
Notwithstanding anything to the contrary in this Agreement, RightResponse AI may monitor Customer’s and each Authorized User’s access and use of the RightResponse AI Platform, and collect and compile meta-data, data and information related to access and use of the RightResponse AI Platform that is and can be used by RightResponse AI for application monitoring, pricing, and RightResponse AI’s technology management purposes (“Application Monitoring Data”). The same data (including Customer Data) may be used in any format to compile statistical and performance information related to the provision, operation, and use of the RightResponse AI Platform (including, without limitation, in connection with artificial intelligence and machine learning model refinement and training) (collectively, “Aggregated Statistics”). Customer agrees that RightResponse AI may (i) make Aggregated Statistics publicly available in compliance with applicable law; and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer, any user or Customer’s Confidential Information. Customer hereby grants to RightResponse AI a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Customer Data to the extent incorporated within the Aggregated Statistics. Customer acknowledges that, as between Customer and each user on the one hand, and RightResponse AI on the other hand, RightResponse AI owns all right, title, and interest, including all intellectual property rights therein, in and to the RightResponse AI Platform, Aggregated Statistics, and Application Monitoring Data.
3.4. Feedback.
If Customer and/or any Authorized User chooses to provide input and suggestions regarding the RightResponse AI Platform (“Feedback”), then Customer and/or such Authorized User hereby grants RightResponse AI an unrestricted, perpetual, irrevocable, non-exclusive, fully paid, royalty-free right to use such Feedback in any manner and for any purpose, including to improve the RightResponse AI Platform, or create other products and services.
4. Fees and Payment Terms and Invoicing
4.1. Fees and Payments.
Customer will pay the Fees as set forth in the applicable Order. Except as otherwise specified herein, (i) Fees are based on the rights granted hereunder, and not actual usage by Customer; (ii) payment obligations are non-cancelable; and (iii) Fees paid are non-refundable. During the Term as hereinafter defined, RightResponse AI will invoice Customer (which may be sent by email) for the Fees in accordance with the relevant Order. Any Fees that are subject to a good faith dispute shall be paid within ten (10) days after such dispute is resolved. If any Fees are not received by RightResponse AI by their due date, then without limiting RightResponse AI’s rights or remedies hereunder or at law, such Fees may accrue late interest at a rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is greater, plus all expenses of collection. Without limiting its other remedies, RightResponse AI may suspend and/or revoke access to the RightResponse AI Platform for nonpayment of any Fees.
4.2. Taxes.
The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for all Taxes associated with its purchases hereunder. If RightResponse AI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, RightResponse AI will invoice Customer and Customer will pay that amount unless Customer provides RightResponse AI with a valid tax exemption certificate.
5. Confidentiality
5.1. Confidentiality.
In connection with this Agreement and the Order(s), a Party (the “Disclosing Party”) may disclose to the other Party (the “Receiving Party”) information which is commercially sensitive, confidential, proprietary, and/or trade secret to the Disclosing Party and which is identified as confidential at the time of disclosure or which is reasonably apparent to be confidential based on the type of information and the circumstances of disclosure (“Confidential Information”). For a period of five (5) years after termination of this Agreement (or in the case of a trade secret for as long as such trade secret remains protectable under applicable laws), the Receiving Party shall not disclose any such Confidential Information to any third party other than its employees, contractors, and agents, and only on an as-needed basis. The terms and conditions of this Agreement and any applicable Orders, shall be considered Confidential Information of both Parties and shall not be disclosed without the other Party’s written consent; however, high level information used to provide references, recommendations and case studies shall not be considered Confidential Information of either Party. In no event shall Customer use RightResponse AI’s Confidential Information to reverse engineer or otherwise develop products and services functionally equivalent to any of RightResponse AI’s products or services. At the request of the Disclosing Party, the Receiving Party shall promptly destroy all Confidential Information of the Disclosing Party that is then in its possession or control.
5.2. Exceptions.
Notwithstanding the foregoing, the Disclosing Party’s Confidential Information shall not include information which: (i) is in the public domain at the time of its disclosure hereunder or thereafter becomes part of the public domain through no breach of this Agreement by the Receiving Party; (ii) was already known to the Receiving Party as of the time of its disclosure hereunder without an obligation of confidentiality, (iii) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information; (iv) is subsequently learned by the Receiving Party from a third party that is not under a confidentiality obligation to the Disclosing Party with respect to such disclosure; (v) is authorized for disclosure by the Disclosing Party. Further, RightResponse AI may use Customer’s name and logo for marketing purposes and identifying Customer as a customer of the RightResponse AI Platform.
5.3. Legally Required Disclosures.
Notwithstanding anything else herein, the Receiving Party may disclose the Confidential Information of the Disclosing Party to the extent required pursuant to a duly authorized subpoena, court order or government authority. The Receiving Party shall provide prompt written notice to the Disclosing Party, prior to such disclosure, so that the Disclosing Party may seek a protective order or other appropriate remedy, and, if such remedy is not obtained, the Receiving Party shall disclose only that portion of the Disclosing Party’s Confidential Information which is legally required to be disclosed and shall seek confidential treatment thereof.
6. Representations, Warranties and Warranty Exclusions
6.1. RightResponse AI Warranty.
RightResponse AI warrants that the RightResponse AI Platform shall be provided in accordance with the applicable Order in a professional and workmanlike manner.
6.2. Mutual Representations and Warranties.
Each party represents and warrants to the other that; (i) it has the requisite power and authority to execute and deliver this Agreement and perform its obligations herein: (ii) this Agreement has been duly authorized, executed, and delivered by each party, and is a legal, valid, and binding obligation of each party, enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and other similar laws and principles of equity affecting creditors’ rights and remedies generally; and (iii) this Agreement does not violate, conflict with, result in a breach of the terms, conditions, or provisions of, or constitutes a default or an event of default under any other agreement to which such party is a party.
6.3. Disclaimers.
OTHER THAN THE WARRANTIES SPECIFICALLY MADE IN THIS AGREEMENT, THE RIGHTRESPONSE AI PLATFORM IS AVAILABLE “AS-IS” AND “AS-AVAILABLE.” RIGHTRESPONSE AI AND ITS LICENSORS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING OUT OF CUSTOM OR TRADE USAGE, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR WARRANTIES EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, RIGHTRESPONSE AI DOES NOT WARRANT THE ACCURACY OF THE RIGHTRESPONSE AI PLATFORM, OR THAT THE OPERATION OF THE RIGHTRESPONSE AI PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT RIGHTRESPONSE AI WILL CORRECT ALL DEFECTS. FURTHER, RIGHTRESPONSE AI AND CUSTOMER ACKNOWLEDGE AND AGREE THAT RIGHTRESPONSE AI DOES NOT AND CANNOT GUARANTEE ANY SPECIFIC RETURNS ON INVESTMENT, BUSINESS OUTCOME OR RESULT FROM CUSTOMER’S USE OF THE RIGHTRESPONSE AI PLATFORM UNDER THIS AGREEMENT. FURTHER, THE RIGHTRESPONSE AI PLATFORM ARE INTENDED TO BE FOR INFORMATIONAL USE ONLY, AND RELY UPON A VARIETY OF DATA INPUTS OF VARYING RELIABILITY, INCLUDING ASSUMPTIONS ASSOCIATED WITH CUSTOMER DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL INVESTMENTS CARRY THE RISK OF LOSS AND ALL AUTHORIZED USERS OF THE RIGHTRESPONSE AI PLATFORM ARE ADVISED TO CONSULT THEIR OWN TAX, LEGAL, REAL ESTATE, AND INVESTMENT ADVISORS FOR GUIDANCE REGARDING THEIR OWN UNIQUE SITUATION AND GOALS. RIGHTRESPONSE AI SHALL NOT BE DEEMED TO BE IN BREACH OF ANY REPRESENTATION OR WARRANTY TO THE EXTENT THAT SUCH BREACH RESULTS FROM THE ACT OR OMISSION OF A THIRD PARTY.
7. Limitation of Liability
7. 1. Damages.
IN NO EVENT WILL RIGHTRESPONSE AI BE LIABLE TO CUSTOMER OR ANY AUTHORIZED USER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING LOST REVENUES OR PROFITS; USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR ANY OTHER COMMERCIAL OR ECONOMIC LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF THE DAMAGE AND EVEN IF A CUSTOMER ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. RIGHTRESPONSE AI’S AGGREGATE LIABILITY FOR ANY AND ALL DIRECT DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES CUSTOMER PAID TO RIGHTRESPONSE AI IN THE PRIOR TWELVE (12) MONTH PERIOD UNDER THE APPLICABLE ORDER FOR THE CAUSE OF ACTION GIVING RISE TO SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING OR ANYTHING ELSE HEREIN, NOTHING IN THIS AGREEMENT WILL LIMIT CUSTOMER’S LIABILITY FOR PAYMENT OF FEES OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS.
8. Indemnification
8.1. Customer Indemnity.
Customer shall indemnify, defend and hold harmless RightResponse AI, its affiliates, and its and their respective employees, principals, directors, agents, successors and assigns (each, a “RightResponse AI Indemnitee”), for, from and against any and all costs, damages or losses (including reasonable attorneys’ fees and expenses) (collectively “Losses”) arising out of or resulting from a third party claim, demand, suit or administrative proceeding (each, a “Claim”) (i) that the Customer Data, or any use of the Customer Data with the RightResponse AI Platform, infringes, violates, and/or misappropriates such third party’s intellectual property or privacy rights; or (ii) based on Customer’s or any Authorized User’s (a) negligence or willful misconduct; (b) use of the RightResponse AI Platform, and/or Professional Services deliverables in a manner not authorized by this Agreement; (c) use of the RightResponse AI Platform, and/or Professional Services deliverables in combination with data, software, hardware, equipment or technology not provided by RightResponse AI or authorized by RightResponse AI in writing; or (d) modifications to the RightResponse AI Platform and/or Professional Services deliverables not made by RightResponse AI.
8.2. RightResponse AI Indemnity.
RightResponse AI will indemnify, defend and hold harmless Customer and its Authorized Users (each, a “Customer Indemnitee”), for, from and against any Losses arising out of or resulting from any Claim that the RightResponse AI Platform, when used in accordance with the terms of this Agreement and the applicable Order, infringes or misappropriates such third party’s US intellectual property right; provided that the foregoing will not apply to the extent that the alleged infringement or misappropriation arises from Claim(s) for which Customer is obligated to indemnify any RightResponse AI Indemnitee hereunder and/or arising out of Customer’s and/or any Authorized User’s breach of this Agreement and/or any Order. This section sets forth any Customer Indemnitee’s sole remedy and RightResponse AI’s sole liability and obligation for any actual, threatened, or alleged claims that the RightResponse AI Platform infringes, misappropriates, or otherwise violates any intellectual property rights of any third party.
8.3. Indemnification Procedures.
The party seeking indemnification hereunder (the “Indemnified Party”), agrees to promptly notify the party against whom indemnification is sought (the “Indemnifying Party”) in writing following receipt of notice of any Claim in respect of which indemnity may be sought under such section, which notice shall assert such Claim and set forth in reasonable detail the basis for indemnification (such notice, the “Indemnification Notice”). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have adversely prejudiced the Indemnifying Party. If the Indemnifying Party does not assume control of such defense, the Indemnified Party shall have the right to control such defense at the Indemnifying Party’s reasonable expense. The Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement if such settlement does not release the Indemnified Party from all liabilities with respect to such Claim or involves an admission of fault or wrongdoing by an Indemnified Party.
9. Term and Termination
9.1. Term.
This Agreement shall become effective on the Effective Date and shall remain effective until terminated in accordance with this section (the “Term”). Each Order shall become effective on the effective date set forth in such Order (which shall be the same date as the Effective Date if no date is specified) and shall remain effective for the term set forth therein (the “Initial Order Term”). Each Order shall extend automatically for successive terms in accordance with the Order (each successive term, an “Extension Order Term”), unless either Party provides the other Party with written notice of nonrenewal at least thirty (30) days prior to the expiration of the Initial Order Term or the then-current Extension Order Term. This Agreement may be terminated for any reason upon written notice by any Party at such time as no Order(s) are in effect hereunder. Termination of an Order shall not affect this Agreement. If Customer has provided RightResponse AI with credit card information, for any Extension Order Term Customer hereby authorizes RightResponse AI or its designee to charge Customer’s credit card for such non-refundable Fees on a recurring basis consistent with this Agreement and the applicable Order using the information Customer previously provided to RightResponse AI.
9.2. Termination.
In the event that the other Party (i) has breached any of the warranties or material provisions contained in an Order or this Agreement (including Customer’s obligation to pay Fees when due or as provided under the RightResponse AI SLA) and failed to cure such breach within thirty (30) days following receipt of written notice thereof by the non-breaching Party (which notice shall set forth a description of the breach); or (ii) becomes insolvent, ceases conducting business in the ordinary course, makes a general assignment for the benefit of creditors, or becomes subject to voluntary or involuntary bankruptcy or liquidation proceedings; then the non-breaching Party, in addition and supplementary to any other rights and remedies that may be available to such non-breaching Party, will be entitled to terminate this Agreement or such Order by providing written notice of such termination to the Party committing the breach. Without limiting the foregoing, in the event of RightResponse AI’s termination of this Agreement and/or any Order for Customer’s breach, the due dates of all outstanding invoices will automatically accelerate so they become due and payable on the effective date of such termination.
9.3. Effect of Termination.
Except in the event of RightResponse AI’s termination of this Agreement for Customer’s material breach, upon expiration or earlier termination of this Agreement, each Order shall remain in effect until Customer has completed all contracted activities thereunder and Customer shall pay RightResponse AI all Fees payable under each such Order. Payment of any final invoice shall not bar any remedy, legal equitable, or otherwise available to RightResponse AI, and no expiration or termination will affect Customer obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. Notwithstanding anything herein to the contrary, all terms logically construed to survive the term of this Agreement shall survive, including, without limitation, all RightResponse AI Platform usage responsibilities and rights and all confidentiality obligations.
10. Miscellaneous
10.1. Entire Agreement.
This Agreement and each Order entered into hereunder shall supersede all prior agreements, communications, representations and understandings, either oral or written, between RightResponse AI and Customer with respect to the subject matter contained herein. All terms and conditions on any Customer-issued purchase order, order acknowledgment or other documents in connection with the reporting services herein shall be deemed deleted and of no force or effect. This Agreement and the Order(s) may not be modified except as mutually agreed to in writing, signed by an authorized representative of each Party.
10.2. Legal Notices.
All notices, requests, demands, claims, and other communications hereunder will be in writing and shall be deemed duly given (i) when delivered personally to the recipient, upon receipt; (b) when sent by electronic mail or facsimile, on the date of transmission to such recipient, if received during normal business hours and, if not, the next business day after transmission; (iii) one (1) business day after being sent to the recipient by reputable overnight courier service (charges prepaid); or (iv) three (3) business days after being mailed and addressed to the recipient as set forth on the signature page hereto. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth. Notices for Customer should be sent to the Customer Legal Address listed in an Order. Notices for RightResponse AI should be sent to gswetlitz@rightresponseai.com.
10.3. Waivers.
No waiver by either Party of any breach or default hereunder by the other shall operate as a waiver of any other breach or default or of a similar breach or default on a future occasion. No waiver of any term or condition hereof by either Party shall be effective unless the same shall be in writing and signed by both Parties.
10.4. Severability.
In the event that any provision of this Agreement (other than a provision which goes to the essence of the consideration for this Agreement) is declared invalid, unenforceable or void, to any extent, by a court of competent jurisdiction, the remainder of this Agreement and the application thereof shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law.
10.5. Injunctive Relief.
In the event of the breach or a threatened breach by a Party of any of the provisions of Sections 2, 3, 4, 6, or 7 of this Agreement, the non-breaching Party, in addition and supplementary to any other rights and remedies that may be available to such Party, will be entitled to seek specific performance and/or injunctive or other equitable relief against the breach or threatened breach from a court of competent jurisdiction in order to enforce or prevent any violations of the provisions hereof (without posting a bond or other security).
10.6. Governing Law; Jurisdiction.
This Agreement and the Order(s) will be governed by and construed in accordance with the laws of the State of Delaware without application of its choice of law provisions. Except as otherwise provided herein, any legal suit, action, or proceeding arising out of or related to this Agreement will be instituted exclusively in the State or Federal courts of located in Wilmington, Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. If any legal action or any arbitration or other proceeding is brought in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorneys’ fees, accounting fees, and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled. The phrase “prevailing party” means the party who is determined in the proceeding to have prevailed or who prevails by dismissal, default, judgment, or otherwise.
10.7. Export Regulations.
Customer understands that RightResponse AI is subject to regulation by agencies of the U.S. Government, including the U.S. Departments of Commerce and State, which prohibit export or diversion of certain technical products to certain countries. Customer warrants that it will comply in all respects with the export and re-export restrictions applicable to the RightResponse AI Platform. Customer agrees to indemnify and hold RightResponse AI harmless from any loss, damages, liability or expenses incurred by RightResponse AI as a result of Customer’s failure to comply with any export regulations or restrictions.
10.8. Assignment.
If Customer is acquired by another entity, person or business, whether by merger, consolidation, reorganization, purchase of assets, or otherwise (a “Change of Control”), the rights granted to Customer hereunder will extend only to the business of Customer operated prior to the Change of Control, and the RightResponse AI Platform may not be used with respect to the business of the acquirer entity or business without the prior written consent of RightResponse AI, which consent may be withheld in its sole discretion. Any purported assignment in violation of this Agreement is null and void. This Agreement shall inure to the benefit of RightResponse AI and Customer and any successors or assigns of RightResponse AI and Customer. Except with respect to RightResponse AI Indemnitees and Customer Indemnitees, no other third party shall have any rights hereunder.
10.9. Relationship of Parties.
RightResponse AI is an independent contractor of Customer, and Customer hereby acknowledges that RightResponse AI may engage subcontractors to assist with its performance hereunder. Nothing herein shall be construed as creating a joint venture, partnership or similar relationship.