General Terms and Conditions
Section 1. Service Provider Obligations
1.1 Description of Services. CommSafe AI shall provide to Subscriber the services (the “Services”) set out in this Agreement, the Order Form, as well as any future Statements of Work accepted by You and CommSafe AI (each, a “Statement of Work”). A description of the Services is set forth in the Order Form and such Order Form shall be incorporated by reference into this Agreement.
Additional Statements of Work shall be deemed issued and accepted only if signed by both Parties. CommSafe AI will make the Services and Your Service Data available to You pursuant to this Agreement and the applicable Order Form(s) and Documentation in accordance with Your Service Plan. CommSafe AI will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (a) during Planned Downtime (of which We will give advance notice via Our Site or to the Account owner); = (b) unexpected downtime; and Force Majeure Events (as defined herein).
1.2 Support. CommSafe AI will, at no additional charge, provide applicable standard customer support for the Services to You as detailed in this Agreement or on any applicable Statement of Work, and upgraded support, if purchased.
1.3 Modifications and Additional Features. You acknowledge that CommSafe AI may modify the features and functionality of the Services during the Subscription Term. CommSafe AI shall provide You with commercially reasonable advance notice of any deprecation of any material feature or functionality. CommSafe AI will notify You of applicable Supplemental Terms and/or alternate agreement prior to Your activation of any Additional Features. The activation of any Additional Features by You in Your Account will be considered acceptance of the applicable Supplemental Terms or alternate agreement where applicable.
1.4 Maintenance of Records. CommSafe AI will maintain records relating to the provision of the Services under this Agreement. During the Subscription Term, upon Your written request, CommSafe AI shall allow You or Your authorized representative to inspect and make copies of such records in connection with the provision of the Services; provided that You provide CommSafe AI with at least 30 business days advance written notice of the planned inspection.
1.5 Extension of Rights to Affiliates. You may extend Your rights, benefits and protections provided herein to Your Affiliates and to contractors or service providers acting on Your or Your Affiliates’ behalf, provided that You remain responsible for Your and their compliance hereunder.
Section 2. Use of the Services
2.1 Login Management. Access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that an Agent Login cannot be shared or used by more than one (1) individual. However, Agent Logins may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and Your Agents are responsible for maintaining the confidentiality of all Agent Login information for Your Account. Absent a written license from CommSafe AI expressly stating otherwise, You agree and acknowledge that You may not use the Services, including but not limited to the API, to circumvent the requirement for an individual Agent Login for each individual who (a) leverages the Services to interact with End-Users; (b) Processes data related to interactions with End-Users; or (c) Processes data related to interactions originating from a Non-CommSafe AI Service that provides functionality similar to functionality provided by the Services and which would, pursuant to this Agreement, require an individual Agent Login if utilizing the Services for such interaction. Further, Subscriber shall not use the API or any Software in such a way to circumvent applicable Service Plan restrictions or Agent licensing restrictions that are enforced in the Service user interface. Should CommSafe AI discover that Your use of a CommSafe AI Service is not in compliance with this Agreement or the Service Plan features and limitations on Our Site, CommSafe AI reserves the right to charge You, and You hereby agree to pay for said usage in addition to other remedies available to CommSafe AI.
2.2 Compliance. As between You and CommSafe AI, You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account, which CommSafe AI may verify from time to time. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Services is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users.
2.3 Conduct. In your use of the Services You agree not to (a) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (b) falsely imply any sponsorship or association with CommSafe AI; (c) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (d) attempt to bypass or break any security or rate limiting mechanism on any of the Services or use the Services in any manner that interferes with or disrupts the integrity, security or performance of the Services and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (f) to the extent You are subject to the US Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (HIPAA), use the Services to store or transmit any “protected health information” as defined by HIPAA, unless expressly agreed to otherwise in writing by CommSafe AI; (g) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (h) launch or facilitate, whether intentionally or unintentionally, a denial of service attack on any of the Services or any other conduct that materially and adversely impacts the availability, reliability, or stability of the Services.
2.4 System Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, browser software that supports protocols used by CommSafe AI. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by CommSafe AI. We assume no responsibility for the reliability or performance of any connections as described in this Section.
2.5 Internal Business Purposes Only. Unless otherwise authorized by CommSafe AI in this Agreement or expressly agreed to otherwise in writing by CommSafe AI, You may not use the Services in any manner where You act as a service bureau or to provide any outsourced business process services on behalf of more than one (1) third party through a single Account.
Accordingly, You agree not to license, sublicense, sell, outsource, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or resell the Services to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement, unless expressly agreed to otherwise in writing by CommSafe AI. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by CommSafe AI from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in accordance with this Agreement.
2.6 No Competitive Access. You may not access the Services if You are a direct competitor of CommSafe AI, except with CommSafe AI’s express prior written consent. You may not access the Services for competitive purposes.
Section 3. Term, Cancellation, and Termination
3.1 Term. Unless Your Account and subscription to a Service is terminated in accordance with the terms of this Agreement or unless otherwise provided for in any applicable Order Form (a) Your subscription to a Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term and (b) the Subscription Charges applicable to Your subsequent Subscription Term shall be Our standard Subscription Charges for the applicable Service Plan and Deployed Associated Services at the time such subsequent Subscription Term commences.
3.2 Cancellation. Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, no less than thirty (30) days prior to the end of such Subscription Term. Notwithstanding, You may terminate this Agreement at any time for any reason with 30 days written notice to CommSafe AI.
3.3 Mutual Termination for Cause. A Party may terminate this Agreement for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured at the expiration of thirty (30) days from the date of the breaching Party’s receipt of such written notice; or (b) 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.
If this Agreement is terminated by You in accordance with this Section, CommSafe AI will refund You any prepaid fees covering the remainder of the Subscription Terms of the effective date of termination.
If this Agreement is terminated by Us in accordance with this Section, You will pay any unpaid fees covering the remainder of the Subscription Term and pursuant to any applicable Order Forms that should exist. In no event will Our termination for cause relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
3.4 Payment Upon Termination. Except for Your termination under Section 3.3, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term, or if We terminate or cancel Your Account pursuant to Section 3.3, in addition to any other amounts You may owe CommSafe AI, You must within 60 days pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term.
3.5 No Refunds. Except for Your termination rights under Section 3.3, if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then current Subscription Term, no refunds or credits for Subscription Charges or other fees or payments will be provided to You.
3.6 Export of Service Data. For thirty (30) days after the effective date of termination or expiration of this Agreement, upon Your request, We will make Service Data available to You for export or download as provided in the Documentation in a commercially acceptable format acceptable. Thereafter, We will have no obligation to maintain or provide any Service Data, and, as provided in the Documentation, We will, unless prohibited by law or legal order, delete Your Service Data in Our Services in accordance with Our Data Deletion Policy available on CommSafe AI’s Policies and Procedures Website.
Section 4. Billing, Plan Modifications and Payments
4.1 Payment and Billing. You agree to pay the Subscription Charges as set forth in the Order Form. All Subscription Charges are due in full upon commencement of Your Subscription Term, or, with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed, unless otherwise expressly set forth in this Agreement, an Order Form, a Statement of Work, or in Supplemental Terms, or as otherwise agreed for Usage Charges. You are responsible for providing valid and current payment information and You agree to promptly update your Account information, including payment information, with any changes that may occur (for example, a change in Your billing address or credit card expiration date). If You fail to pay Your Subscription Charges or other charges indicated on any Order Form within five (5) business days of Our notice to You that payment is delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users.
4.2 Upgrades. If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use a Service during Your Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the remaining Subscription Term. In any future Subscription Term, Your Subscription Charges will reflect any such upgrades.
4.3 Downgrades. You may not downgrade Your Service Plan or reduce the number of Agents during Your Subscription Term. If You desire to downgrade Your Service Plan or reduce the number of Agents under any Service Plan for a subsequent Subscription Term, You must provide CommSafe AI with thirty (30) days advance written notice prior to the end of Your then current Subscription Term. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and CommSafe AI does not accept any liability for such loss.
4.4 Taxes. Unless otherwise stated, Our charges do not include any Taxes. You are responsible for paying Taxes except those assessable against CommSafe AI measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
4.5 Payment Terms. Payment shall be made within 60 days of receipt of invoice.
Section 5. Confidential Information
5.1 Each Party will protect the other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each Party protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use the other Party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information and who are bound by terms of confidentiality intended to prevent the misuse of such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 5 shall control over any non-disclosure agreement by and between the Parties and any such non-disclosure agreement shall have no further force or effect with respect to the exchange of Confidential Information after the execution of this Agreement. To be clear, any exchange of Confidential Information prior to the execution of this Agreement shall continue to be governed by any such non-disclosure agreement.
Section 6. Ownership and Security of Service Data
6.1 Ownership of Service Data. Subscriber shall retain ownership rights to all Service Data Processed under the terms of this Agreement.
6.2 No Sale of Service Data. CommSafe AI will never sell, rent, or lease Your Service Data to any third party. We will not share Your Service Data with third parties, except as permitted by this Agreement and in order to provide, secure and support the Services.
Section 7. Privacy Practices
In providing the Services, CommSafe AI will engage authorized service providers to Process Service Data, including and without limitation, any Personal Data within Service Data pursuant to this Agreement within the United States, the EEC and in other countries and territories.
7.4 In-Product Cookies. Whenever You, Your Agents or End-Users interact with Our Services, We automatically receive and record information on Our server logs from the browser or device, which may include IP address, “cookie” information, and the type of browser and/or device being used to access the Services. When We collect this information, We only use this data to provide the Services or in aggregate form, and not in a manner that would identify Your Agents or End-Users personally.
Section 8. Temporary Suspension
8.1 We reserve the right to restrict functionalities or suspend the Services (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services and remove, disable or quarantine any Service Data if (a) We reasonably believe that You, Agents or End-Users have violated this Agreement; or (b) We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
Section 9. Non- CommSafe AI Services
9.1 If You decide to enable, access or use Non- CommSafe AI Services, Your access and use of such Non- CommSafe AI Services shall be governed solely by the terms and conditions of such Non- CommSafe AI Services. CommSafe AI does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Non- CommSafe AI Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including Service Data), or any interaction between You and the provider of such Non- CommSafe AI Services. We cannot guarantee the continued availability of such Non- CommSafe AI Service features, and may cease enabling access to them without entitling You to any refund, credit or other compensation, if, for example and without limitation, the provider of a Non- CommSafe AI Service ceases to make the Non-CommSafe AI Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against CommSafe AI with respect to such Non- CommSafe AI Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Non- CommSafe AI Services, or Your reliance on the privacy practices, data security processes or other policies of such Non- CommSafe AI Services. You may be required to register for or log into such Non- CommSafe AI Services on their respective websites.
Section 10. Intellectual Property Rights
10.1 Each Party shall retain all rights, title and interest in any Intellectual Property Rights. The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights of CommSafe AI associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with CommSafe AI and belong exclusively to CommSafe AI.
10.2 CommSafe AI shall have a fully paid-up, royalty-free, worldwide, transferable, sublicensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. CommSafe AI also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf.
10.3 You may only use the CommSafe AI Marks in a manner permitted by Applicable Law, provided You do not attempt, now or in the future, to claim any rights in the CommSafe AI Marks, degrade the distinctiveness of the CommSafe AI Marks, or use the CommSafe AI Marks to disparage or misrepresent CommSafe AI or Our Services.
Section 11. Representations, Warranties and Disclaimers
11.1 Authority. Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
11.2 Warranties. We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty in this section, Your exclusive remedies are those described in Section 3.3 herein.
11.3 Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 11.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS,] WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
Section 12. Indemnification
12.1 Indemnification by Us. We will indemnify, defend and hold You harmless from and against any claim brought by a third party against You by reason of Your use of a Service as permitted hereunder, alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by CommSafe AI for such defense, provided that (a) You promptly notify CommSafe AI of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, We shall not settle or compromise any claim that results in liability or admission of any liability by You without Your prior written consent); and (c) You fully cooperate with CommSafe AI in connection therewith. If use of a Service by You, Agents or End-Users has become, or, in Our opinion, is likely to become, the subject of any such IP Claim, We may, at Our option and expense, (i) procure for You the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by CommSafe AI, terminate Your subscription to the Service(s) and repay You, on a pro-rata basis, any Subscription Charges previously paid to CommSafe AI for the corresponding unused portion of Your Subscription Term for such Service(s). We will have no liability or obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by You; (y) modification of the Service(s) by anyone other than CommSafe AI or CommSafe AI Personnel; or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section 12.1 state the sole, exclusive and entire liability of CommSafe AI to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
12.2 Indemnification by You. You will indemnify, defend and hold CommSafe AI harmless against any claim (a) arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement; or (b) alleging that Your use of the Service or Your Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret; provided (i) We promptly notify You of the threat or notice of such claim; (ii) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Us without Our prior written consent); and (iii) We reasonably cooperate with You in connection therewith.
Section 13. Limitation of Liability
13.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF COMMSAFE AI), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR CONSULTING SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
13.2 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for personal injury or death, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, COMMSAFE AI’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
13.3 Any claims or damages that You may have against CommSafe AI shall only be enforceable against CommSafe AI and not any other entity or its officers, directors, representatives or agents.
Section 14. Third-Party Service Providers
14.1 Third-Party Service Providers. You agree that CommSafe AI, and the third-party service providers that are utilized by CommSafe AI to assist in providing the Services to You, shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose the Personal Data of Your Agents to the extent necessary to provide, secure or improve the Services. Any third-party service providers utilized by CommSafe AI will only be given access to Your Account as is reasonably necessary to provide the Services and will be subject to confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 5.
Section 15. Assignment, Entire Agreement and Amendment
15.1 Assignment. Either Party may assign this Agreement, without consent from the other party, in connection with any merger or change of control or the sale of all or substantially all of the party’s assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and theirrespective successors and assigns.
15.2 Entire Agreement. This Agreement constitutes the entire agreement, and supersedes any and all prior agreements between You and CommSafe AI with regard to the subject matter hereof. This Agreement shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties or commitments which may be relied upon by either Party with respect to the subject matter hereof. There are no oral promises, conditions, representations, understandings, interpretations or terms of any kind between the Parties, except as may otherwise be expressly provided herein. The headings used herein are for convenience only and shall not affect the interpretation of the terms of this Agreement.
15.3 Amendment. We may with your consent amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such proposed amendment and Your continued use of the Services following the effective date of any such amendment may be relied upon by CommSafe AI as Your agreed consent to any such amendment. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
Section 16. Severability
16.1 If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Section 17. Export Compliance and Use Restrictions
17.1 The Services and other CommSafe AI technology, and derivatives thereof, may be subject to export controls and economic sanctions laws and regulations of the United States and other jurisdictions. Subscriber agrees to comply with all such laws and regulations as they relate to access to the Services and other CommSafe AI technology.
Section 18. Relationship of the Parties; Use of Names
18.1 The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
18.2 You understand that your name and business relationship with Us may be used in connection with publicizing and promoting CommSafe AI. You hereby authorize CommSafe AI to use Your name, brief biographical information, and any testimonial that You may provide to Us in any advertisement, marketing and publication material without any further consent. You further acknowledge and agree that You shall execute any other documentation in furtherance of the effects of this Section.
Section 19. Notice
19.1 All notices provided by CommSafe AI to You under this Agreement may be delivered in writing by (a) nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Order Form; or (b) email to the email address provided for Your Account owner. You must give notice to CommSafe AI in writing by Courier or U.S. mail to 2159 India Street, San Diego, CA 92101. All notices shall be deemed to have been given immediately upon delivery by email; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
Section 20. Governing Law
20.1 This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in San Diego County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End-Users.
Section 21. Anti-Corruption
21.1 You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Us (email being sufficient).
Section 22. Survival
22.1 Sections 2.1, 3.5, 3.6, 4.4, 5 – 7, 12 – 15, and 23, and any other sections that by its nature should survive, shall survive any termination of this Agreement with respect to use of the Services by You, Agents or End-Users. Termination of this Agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
Section 23. Definitions
23.1 When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings: “Account” means any accounts or instances created by or on behalf of Subscriber or its Affiliates within the Services.
“Additional Feature(s)” means additional features or functionality (including, but not limited to, Built by CommSafe AI) that are available or enabled through the Service, but do not form part of the Service. Additional Features also include third party services that are purchased and/or subscribed to via any Order Form and that are identified as being resold by CommSafe AI and governed by such third party’s alternate agreement. Additional Features are purchased or enabled separately and distinctly from Your Service Plan and Deployed Associated Services.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
“Agent” means an individual (including those of Your Affiliates) authorized to use the Service(s) through Your Account as an agent and/or administrator, each as identified through an individual Agent Login.
“Agent Login” means a unique username and associated password provisioned to an identifiable individual to permit them to access the Services.
“API” means the application programming interfaces developed, made available and enabled by CommSafe AI that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP requests and the application development API that enables the integration of the Services with other web applications.
“Associated Services” means products, services, features and functionality designed to be used in conjunction with the Services that are not included in the Service Plan to which You subscribe. For avoidance of doubt, Additional Features that are expressly stated to be governed by separate Supplemental Terms shall not be deemed an Associated Service. Where You have purchased, deployed, or subscribed to an Associated Service, such Associated Service is referred to as a “Deployed Associated Service.”
“CommSafe AI Marks” means any trademarks, service marks, service or trade names, logos or other designations of CommSafe AI, or its or their Affiliates, whether registered or unregistered.
“Confidential Business Information” means all Confidential Information that is not Service Data, including, without limitation, Your Agents’ Personal Data and Account information, which CommSafe AI may store in its systems separate from the Service and Our security policies and procedures.
“Confidential Information” means all information disclosed by one Party to the other Party which is in tangible form and designated as confidential or is information, regardless of form, which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, the terms of this Agreement, Subscriber Service Data and Confidential Business Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information.
“Consulting Services” means consulting and professional services (including any training, success and implementation services) provided by CommSafe AI Personnel as indicated on any Order Form or other written document such as a SOW.
“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Service Plans, as applicable; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
“End-User” means any person or entity other than Subscriber or Agents with whom Subscriber, its Agents, or its End-Users interact while using a Service.
“Force Majeure Event” means any circumstances beyond Our reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, pandemic, riot, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, Non- CommSafe AI Services, or acts undertaken by third parties, including without limitation, denial of service attack.
[“Innovation Services” means any Service described on CommSafe AI’s Innovation Services List available on CommSafe AI’s Customers and Partners Website.]
“Intellectual Property Rights” means any and all respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights.
“Malicious Software” means any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.
“Non-CommSafe AI Services” means third party products, applications, services, software, networks, systems, directories, websites, databases and information which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Non- CommSafe AI Services which may be integrated directly into Your Account by You or at Your direction.
“Order Form” means Our generated service order form(s) or online ordering document or process completed, which may be executed or approved by You with respect to Your subscription to a Service, which may detail, among other things, the number of Agents authorized to use a Service under Your subscription and the Service Plan applicable to Your subscription.
“Payment Agent” means CommSafe AI or a payment agent designated by CommSafe AI.
“Personal Data” means any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
“Personnel” means employees and/or non-employee service providers and contractors of CommSafe AI or engaged by CommSafe AI in connection with performance hereunder.
“Planned Downtime” means planned downtime for upgrades and maintenance to the Services scheduled in advance of such upgrades and maintenance.
“Processing/to Process/Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Service(s)” means the products and services that are ordered by You online through a link or via an Order Form referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all Deployed Associated Services that are provided under this Agreement. “Services” exclude (a) Non- CommSafe AI Services as that term is defined in this Agreement; and (b) any Additional Features or Associated Services that are not provided under this Agreement or Your Service Plan. From time to time, the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of a prior Order Form or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
“Service Data Breach” means an unauthorized access or improper disclosure that has been verified to have affected Your Service Data.
“Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Order Form or Site applicable to the Service) for the Services.
“Site” means a website operated by CommSafe AI.
“Software” means software provided by CommSafe AI (either by download or access through the internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
“Sub-processor” means any third-party data processor engaged by CommSafe AI, that receives Service Data from CommSafe AI for Processing on behalf of Subscriber and in accordance with Subscriber’s instructions (as communicated by CommSafe AI) and the terms of its written subcontract.
“Subscription Charges” means all charges associated with Your access to and use of an Account.
“Subscription Term” means the period during which You have agreed to subscribe to a Service with respect to any individual Agent.
“Supplemental Terms” means the additional terms and conditions that are (a) set forth below in this Agreement in the sections entitled, “Supplemental Terms”; (b) included or incorporated on an Order Form (e.g. when a Deployed Associated Service is purchased); (c) applicable to Consulting Services when purchased by You; (d) applicable to Additional Features when activated by You; and (e) CommSafe AI’s Service-Specific Terms.
“Taxes” means taxes, levies, duties or similar governmental assessments, including valueadded, sales, use or withholding taxes accessible by any local, state, provincial or foreign jurisdiction.
“Usage Charges” means additional Subscription Charges that are incurred by Subscriber relating to the use of certain features and functionality that Subscriber enables within the Service.
“Usage Data” means metrics and information regarding Your use of the Service, including evaluating how Agents and End-Users use the Service.