TRĒ AI, INC. MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS CUSTOMER’S USE OF TRĒ AI, INC. (“TRĒ AI”) SERVICES AND BINDS CUSTOMER TO THE TERMS AND CONDITIONS HEREIN. THIS AGREEMENT IS EFFECTIVE BETWEEN CUSTOMER AND TRĒ AI ON THE DATE CUSTOMER SIGNS THE ORDER FORM (THE “EFFECTIVE DATE”).
CUSTOMER REPRESENTS AND WARRANTS THAT THE INDIVIDUAL SIGNING THE ORDER FORM HAS THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Customer represents that to its knowledge it is not a direct or indirect competitor of TRĒ AI or any of its Affiliate(s) nor affiliated in any way with a direct or indirect competitor of TRĒ AI, all of which competitors are prohibited from accessing the Services, except with TRĒ AI’s prior written consent. Customer shall not share or disclose the Services to any third party except with TRĒ AI’s prior written consent.
1. DEFINITIONS
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Content” means information obtained by TRĒ AI from publicly available sources or its third-party content providers, as well as other sources, and made available to Customer through the Services or pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have executed Order Forms.
“Customer Data” means data and information submitted or disclosed by Customer to TRĒ AI, or created by TRĒ AI for or on behalf of Customer for the purpose of performing the Services.
“Documentation” means the applicable Service’s end user documentation and policies, as updated from time to time by TRĒ AI, and accessible via login to the applicable online Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“MFA” means Multi Factor Authentication, used to restrict and secure access to TRĒ AI Services to Customer’s authorized users of those Services
“Non-TRĒ AI Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Customer or a third party. Non-TRĒ AI Applications, other than those obtained or provided by Customer, will be identifiable as such.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and TRĒ AI or any of their Affiliates, including any addenda and supplements thereto. By executing an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Services” means the products and services offered by TRĒ AI that are ordered by Customer under an Order Form.
“TRĒ AI” means TRĒ AI, Inc., a corporation with its principal place of business in New Braunfels, TX.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of a Customer that is a company or other legal entity, an individual who is authorized by such Customer to use the Services and to whom Customer (or, when applicable, TRĒ AI at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer.
2. TRĒ AI RESPONSIBILITIES
2.1 Provision of Services. TRĒ AI will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Form(s) and Documentation, (b) provide applicable TRĒ AI standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond TRĒ AI’s reasonable control, including, but not limited to, an Act of God, cyber-attack, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, and (d) provide the Services in accordance with laws and government regulations applicable to TRĒ AI’s provision of its Services. TRĒ AI shall be excused from performing under this Section 2.1 in the event Customer’s use of the Services is not in accordance with this Agreement, the Documentation and the applicable Order Form.
2.2 Use and Protection of Customer Data. Customer provides TRĒ AI original emails for the purpose of collecting email signature and other relevant contact data only. The original email is permanently deleted, including any attachment, once TRĒ AI collects the email signature and other relevant contact data. The original email is not accessible to any person and TRĒ AI systems does not retain, store, copy or maintain the original email provided by the Customer.
TRĒ AI will maintain commercially reasonable administrative, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, including the security standards set forth in the DPA Those safeguards will include measures designed to help prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms of the data processing addendum accessible at the following link: https://www.trelationships.com/tre-ai-data-processing-agreement (the “DPA”), are hereby incorporated into the Agreement by reference.
Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, TRĒ AI will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, TRĒ AI will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation, will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 DISCLAIMERS. THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY TRĒ AI AND ITS AFFILIATES AND ITS LICENSORS DISCLAIM ANY WARRANTIES OR REPERSENTATIONS TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER AND TRĒ AI SHALL BE FULLY LIABLE UNDER THIS AGREEMENT FOR ANY DAMAGES ARISING OUT OF ANY OF CUSTOMER’S AND TRĒ AI’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. USE OF SERVICES AND CONTENT
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Services may be added during a subscription term at prices negotiated between TRĒ AI and Customer, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by TRĒ AI regarding future functionality or features which TRĒ AI specifically disclaims.
3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, TRĒ AI may, at its sole discretion, work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding TRĒ AI’s efforts, Customer fails to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon TRĒ AI’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below, or TRĒ AI may, at its sole discretion, terminate the Agreement for breach.
3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-TRĒ AI Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify TRĒ AI promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-TRĒ AI Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in TRĒ AI’s sole opinion threatens the security, integrity or availability of TRĒ AI’s services, may result in TRĒ AI’s immediate suspension of the Services; provided that TRĒ AI will provide Customer with at least 30 days prior written notice and an opportunity to remedy such violation or threat prior to any such suspension, unless providing such notice is infeasible under the circumstances.
3.4 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer, Users or Affiliates, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-TRĒ AI Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-TRĒ AI Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of TRĒ AI intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content, or (j) access any Service or Content to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, or (3) copy any ideas, features, functions or graphics of the Service.
3.5 Removal of Content and Non-TRĒ AI Applications. If Customer receives notice that Content or a Non-TRĒ AI Application must be removed, modified and/or disabled to avoid violating applicable law or any third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in TRĒ AI’s opinion continued violation is likely to reoccur, TRĒ AI may immediately disable the applicable Content, Service and/or Non-TRĒ AI Application. If requested by TRĒ AI, Customer shall confirm such deletion and discontinuance of use in writing, and TRĒ AI shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if TRĒ AI is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, TRĒ AI may immediately discontinue Customer’s access to Content through the Services.
4. NON-TRĒ AI PRODUCTS AND SERVICES
4.1 Non-TRĒ AI Products and Services. TRĒ AI or third parties may make available third-party products or services, including, for example, Non-TRĒ AI Applications and implementation and other consulting services. Any use by Customer of such products or services, and any exchange of data between Customer and any Non-TRĒ AI provider, product or service is solely between Customer and the applicable Non-TRĒ AI provider. TRĒ AI does not warrant or support Non-TRĒ AI Applications or other Non-TRĒ AI products or services, whether or not they are designated by TRĒ AI as “certified” or otherwise, unless expressly provided otherwise in an Order Form. TRĒ AI is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-TRĒ AI Application or its provider.
4.2 Integration with Non-TRĒ AI Applications. The Services may contain features designed to interoperate with Non-TRĒ AI Applications. TRĒ AI cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-TRĒ AI Application ceases to make the Non-TRĒ AI Application available for interoperation with the corresponding Service features in a manner acceptable to TRĒ AI.
4.3 In order to restrict and secure access to TRĒ AI Services to authorized users, TRĒ AI provides MFA to Customer’s users of TRĒ AI Services. TRĒ AI uses Twilio to send MFA passcodes to authorized Customer users via SMS. TRĒ AI’s use of Twilio SMS messages is limited to sending MFA passcodes and TRĒ AI does not use Twilio SMS for any other purpose, including, but not limited to marketing or promotional messages. Customer acknowledges and consents to TRĒ AI’s use of Twilio to send SMS text messages to Customer’s authorized users of TRĒ AI Services for the purpose of sending MFA passcodes.
5. FEES AND PAYMENT
5.1 Fees. Customer will pay all fees specified in Order Forms, unless Customer has disputed such fees or other amounts in good faith. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased, (ii) payment obligations are non-cancelable and fees paid are non-refundable, if this Agreement is terminated by TRĒ AI in accordance with section 11.3, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment. Customer will provide TRĒ AI with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to TRĒ AI. If Customer provides credit card information to TRĒ AI, Customer authorizes TRĒ AI to charge such credit card for all undisputed fees for Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, TRĒ AI will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, undisputed invoiced fees are due 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to TRĒ AI and notifying TRĒ AI of any changes to such information, provided, however, that TRĒ AI shall verify the legitimacy of such change in billing and contact information by contacting an employee of Customer known to TRĒ AI to be authorized to initiate a change in billing and contact information via a telephone number or video conferencing link that TRĒ AI verifies is legitimate to Customer.
5.3 Overdue Charges. If any undisputed invoiced amount is not received by TRĒ AI by the due date, then without limiting TRĒ AI’s rights or remedies, (a) those charges shall accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) TRĒ AI may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
5.4 Suspension of Service and Acceleration. If any undisputed charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of undisputed amounts Customer has authorized TRĒ AI to charge to Customer’s credit card), TRĒ AI may, without limiting its other rights and remedies, provide written notice to Customer about such matter and if such matter remains uncured for 45 days from Customer’s receipt of such notice, TRĒ AI may accelerate Customer’s undisputed unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such undisputed amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, TRĒ AI will give Customer at least 45 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
5.5 Payment Disputes. TRĒ AI will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes. TRĒ AI’s fees do not include any applicable 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 paying all Taxes associated with its purchases hereunder. If TRĒ AI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, TRĒ AI will invoice Customer and Customer will pay that amount unless Customer provides TRĒ AI with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TRĒ AI is solely responsible for taxes assessable against it based on its income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, TRĒ AI, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
6.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3 Client Name. TRĒ AI may include Customer’s name or logo in TRĒ AI’s published client areas and materials. Neither party shall make any statements about the other party with the intent to defame, disparage, or otherwise tarnish the name, reputation or goodwill of the other party.
6.3 License by Customer to TRĒ AI. Customer grants TRĒ AI, its Affiliates and applicable contractors a worldwide, limited-term right and license to host, copy, use, transmit, and display any Non-TRĒ AI Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for TRĒ AI to provide and ensure proper operation of the Services to Customer and associated systems in accordance with this Agreement for the duration of this Agreement. If Customer chooses to use a Non-TRĒ AI Application with a Service, Customer grants TRĒ AI permission to allow the Non-TRĒ AI Application and its provider to access Customer Data and information about Customer’s usage of the Non-TRĒ AI Application as appropriate for the interoperation of that Non-TRĒ AI Application with the Service. Subject to the limited licenses granted herein, TRĒ AI acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-TRĒ AI Application or such program code.
6.4 License by Customer to Use Feedback. Customer grants to TRĒ AI and its Affiliates a worldwide, perpetual, irrevocable, royalty-free right and license to use and incorporate into its products and services, including the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of TRĒ AI’s or its Affiliates’ products or services.
6.5 License by Customer to Use Selected Email Information. The Services include a feature that enables TRĒ AI to automatically save in the database used by TRĒ AI for the Services the name, title, address, phone, email and other contact information (collectively, “Contact Data”) for persons whose inbound emails are received by Customer’s Users who make use of the Services. This feature enables TRĒ AI to reconcile potentially conflicting contact information for various business contacts and to maintain more up-to-date Contact Data for persons in TRĒ AI’s database, which is then used for the Services thereby benefitting Customer. This Contact Data feature does not access or save other content of Customer emails, which other content remains confidential to Customer. Customer grants to TRĒ AI and its Affiliates a worldwide, perpetual, irrevocable, royalty-free right and license to access such Contact Data and to use and incorporate into TRĒ AI’s database, products and services, solely and exclusively for the purpose of providing Services to Customer
7. CONFIDENTIALITY
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (a “Disclosing Party”) to the other party (a “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of its disclosure. Confidential Information of Customer includes Customer Data and Contact Data; Confidential Information of TRĒ AI includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, (iv) was independently developed by the Receiving Party without use of any information of the Disclosing Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section also apply to Confidential Information exchanged between the parties in connection with the evaluation of TRĒ AI services.
7.2 Protection of Confidential Information. Each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use at least the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing confidentiality protections materially similar to those herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 TRĒ AI Warranties. TRĒ AI warrants that during an applicable subscription term the Services will operate in material respects in accordance with the functional specifications for such Services as set forth in the end user Documentation for the Services, subject to reasonable ordinary course downtime and customary operating parameters for hosted software solutions (including, without limitation, the caveats noted in Section 2.1(c) above). For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND EXCEPT FOR CUSTOMER’S OBLIGATION TO PAY FOR THE SERVICES HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND CONTENT AND SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY OTHER WARRANTIES WHATSOEVER.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by TRĒ AI. TRĒ AI will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer” ), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by TRĒ AI in writing of, a Claim Against Customer, provided Customer (a) promptly gives TRĒ AI written notice of the Claim Against Customer, (b) gives TRĒ AI sole control of the defense and settlement of the Claim Against Customer (except that TRĒ AI may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives TRĒ AI reasonable assistance, at TRĒ AI’s expense. If TRĒ AI receives information about an infringement or misappropriation claim related to a Service, TRĒ AI may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching TRĒ AI’s warranties under “TRĒ AI Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by TRĒ AI, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4 ) a Claim against Customer arises from Content, a Non-TRĒ AI Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
9.2 Indemnification by Customer. Customer will defend TRĒ AI and its Affiliates against any claim, demand, suit or proceeding made or brought against TRĒ AI by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-TRĒ AI Application provided by Customer, or (c) the combination of a Non-TRĒ AI Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against TRĒ AI” ), and will indemnify TRĒ AI from any damages, attorney fees and costs finally awarded against TRĒ AI as a result of, or for any amounts paid by TRĒ AI under a settlement approved by Customer in writing of, a Claim Against TRĒ AI, provided TRĒ AI (a) promptly gives Customer written notice of the Claim Against TRĒ AI, (b) gives Customer sole control of the defense and settlement of the Claim Against TRĒ AI (except that Customer may not settle any Claim Against TRĒ AI unless it unconditionally releases TRĒ AI of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against TRĒ AI arises from TRĒ AI’s breach of this Agreement, the Documentation or applicable Order Forms.
9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim covered by the foregoing Sections 9.1 and 9.2.
10. LIMITATION OF LIABILITY
OTHER THAN WITH RESPECT TO INDEMNITY CLAIMS UNDER SECTION 9 ABOVE OR A PARTY’S INTENTIONAL INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EXCEPT AS OTHERWISE PROVIDED IN THE DPA, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
OTHER THAN WITH RESPECT TO A PARTY’S INTENTIONAL INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AND EXCEPT AS OTHERWISE PROVIDED IN THE DPA, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Subscriptions. The term of each Services subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of subscriptions will be at TRĒ AI’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, TRĒ AI will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by TRĒ AI in accordance with the “Termination” section above, Customer will pay any undisputed unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any undisputed unpaid fees payable to TRĒ AI for the period prior to the effective date of termination.
11.5 Surviving Provisions. The sections titled “Fees and Payment,” “Reservation of Rights,” “License by Customer to Use Feedback,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-TRĒ AI Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as TRĒ AI retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1 Export Compliance. The Services, Content, other TRĒ AI technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. TRĒ AI and Customer each represents that it is not named on any U.S. government denied-party list. Customer will not permit any User to access or use any Service or Content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 Entire Agreement and Order of Precedence. This Agreement, together with any exhibits, linked-to documents, and any Order Form(s), constitutes the entire agreement between TRĒ AI and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) shall be considered to be void and inapplicable. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the DPA; (2) applicable Order Form(s), and then (3) this Agreement and any exhibits and any linked-to documents. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld, delayed or denied); provided, however, either party may assign this Agreement in its entirety (including all Order Forms) and without the other party’s consent to (i) its Affiliate or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of or with, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, TRĒ AI will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.9 Governing Law and Venue. This Agreement shall be interpreted, construed and governed by the laws of the State of New York, without regard to conflict of law provisions. Exclusive venue for any action, claim, proceeding or suit related to this Agreement will be the federal and state courts located in New York City in the State of New York, and the parties irrevocably consent to the personal jurisdiction of such courts.
12.10 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing by postal mail, (c) the day of confirmed delivery if sent by an overnight delivery service, or (d) except for notices of termination or an indemnifiable claim (each a “Legal Notice”), which shall clearly be identifiable as a Legal Notice and shall be sent by one of the methods specified in the preceding sub-clauses (a), (b) or (c), the day of sending by email.
12.11 The term of all applicable Order Form shall be one (1) year unless otherwise stated in the applicable Order Form and shall automatically renew for successive one (1) year terms at the TRĒ AI published prices then in effect on the effective date of each renewal.