Prior Terms and Conditions
These Terms & Conditions (hereinafter referred to as this “Agreement”) contain the general terms and conditions that apply to customers and visitors (collectively, “Customer” or “You”) of OneSchema AI Inc. (hereinafter “OneSchema” or “Service Provider”) services, including any services listed in an applicable order form ( “Order Form”) and any other services provided by OneSchema (collective, the “Services”). BY ACCESSING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, WHICH ONESCHEMA MAY MODIFY FROM TIME TO TIME, IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PROVIDED BY ONESCHEMA.
1. Services and Support
In consideration of (and subject to) payment of the fees listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with Service Provider (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on Service Provider’s website, as modified from time to time in OneSchema’s sole discretion.
2. License, Restrictions, Responsibilities, and Ownership
1. This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-assignable, royalty free license to ACCESS AND USE THE SERVICES, AND TO ALLOW ITS CUSTOMERS THE RIGHT TO ACCESS AND use THE SERVICE (CUSTOMER AND ITS CUSTOMERS ARE REFERRED TO HEREIN AS “AUTHORIZED USER”), AND TO reproduce and distribute internally within AN AUTHORIZED USER’S business (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Service Provider (the “Customer Data”).
2. Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software, data, or documentation; use the Services, documentation, or data 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; combine or integrate the Services, documentation, or data with any software, technology, services, or materials which are not authorized by Service Provider; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services in connection with or promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email, multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities; publish the Services, or any underlying software, documentation, or data without the prior written consent of Service Provider; or remove any proprietary notices or labels from the Services, or any underlying software, documentation, or data. Customer agrees that it shall be liable for any breach or violation of this Agreement by itself and any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers.
3. Customer is solely responsible for the content transmitted through the Services by Customer. Customer represents that all content it transmits through the Services is accurate, complete, up-to-date, and in compliance with all applicable local, state, national and international laws, rules, and regulations and the restrictions set forth herein. Customer agrees to monitor the use of the Services any any of its Authorized Users for any activity that violates applicable laws, rules, or regulations or any terms of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services.
4. Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
5. Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
6. Customer agrees that the Services, including any underlying software, documentation, data, and all other materials provided to Customer by OneSchema, along with all know-how, good will, moral rights, trade secrets, and any related intellectual property rights therein, shall remain the sole and exclusive property of OneSchema, and You shall have no interest in any of the foregoing whatsoever. All right, title, and interest in the Services, except for information and content generated by a party other than OneSchema, are and will remain OneSchema’s exclusive property. You shall make no use of OneSchema’s intellectual property unless expressly agreed to by OneSchema or contemplated by an applicable Order Form of this Agreement. Any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and OneSchema will be free to use your feedback, comments, or suggestions as they seem fit and without any obligation or approval to you whatsoever.
3. Confidentiality
1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or it would be reasonably understood to be confidential or proprietary information at the time of disclosure.
2. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The obligations to protect and not use or divulge to any third person Proprietary Information which constitutes a trade secret under applicable law shall last until such Proprietary Information no longer constitutes a trade secret. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein, and any other Proprietary Information which constitutes a trade secret under appliable law, which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or
becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. Payment of Fees
1. Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
2. If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider will make a commercially reasonable effort to respond to Customer within three (3) business days after receiving such inquires.
3. Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income.
4. If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
1. Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
2. In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
3. Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form or this Agreement.
4. The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”), along with this Section 5.4, shall survive termination of this Agreement.
6. Indemnification
1. Service Provider agrees, at its own expense, to indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with any other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states
Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
2. Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2, or otherwise from Customer’s use of Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT
GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
1. Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.9% of all Scheduled Availability Time. “Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party
connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
2. Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
3. Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing Customer registration, training and change management process.
4. Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 9:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
5. Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
6. Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
7. Severity Levels and Response Times
Services for all customers are not available for use;
Provider will
provide a
status update
via Slack
Connect /
Teams OR
email via
status.onesch
ema.co
updates
within one (1)business hourwithin theinitial
occurrence of
the P0 issue.
Service
Provider’s goal for resolution
of P0 issues is within 1 hour after
Customer’s
receipt of
issue
notification.
customers, causing critical impact to
business operations; no workaround available.
Provider will
provide a
status update
via Slack
Connect /
Teams OR
email via
status.onesch
ema.co
updates
within two (2)
business hours within the initial occurrence of
the P1 issue.
Service
Provider’s goal for resolution
of P1 issues is
within two (2)
calendar days
of Customer’s
receipt of
issue
notification.
services are significantly degraded and/or
impacing significant aspects of business operations.
Provider will
provide a
status update
via Slack
Connect /
Teams OR
email via
status.onesch
ema.co
updates until
(i) the
problem is
resolved, (ii)
an acceptable
workaround is found, or (iii) the problem is determined to be outside of Service
Provider’s
ability to
control.
These Terms & Conditions (hereinafter referred to as this “Agreement”) contain the general terms and conditions that apply to customers and visitors (collectively, “Customer” or “You”) of OneSchema AI Inc. (hereinafter “OneSchema” or “Service Provider”) services, including any services listed in an applicable order form ( “Order Form”) and any other services provided by OneSchema (collective, the “Services”). BY ACCESSING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, WHICH ONESCHEMA MAY MODIFY FROM TIME TO TIME, IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PROVIDED BY ONESCHEMA.
1. Services and Support
In consideration of (and subject to) payment of the fees listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with Service Provider (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on Service Provider’s website, as modified from time to time in OneSchema’s sole discretion.
2. License, Restrictions, Responsibilities, and Ownership
- This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-assignable, royalty free license to ACCESS AND USE THE SERVICES, AND TO ALLOW ITS CUSTOMERS THE RIGHT TO ACCESS AND use THE SERVICE (CUSTOMER AND ITS CUSTOMERS ARE REFERRED TO HEREIN AS “AUTHORIZED USER”), AND TO reproduce and distribute internally within AN AUTHORIZED USER’S business (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Service Provider (the “Customer Data”).
- Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software, data, or documentation; use the Services, documentation, or data 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; combine or integrate the Services, documentation, or data with any software, technology, services, or materials which are not authorized by Service Provider; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services in connection with or promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email, multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities; publish the Services, or any underlying software, documentation, or data without the prior written consent of Service Provider; or remove any proprietary notices or labels from the Services, or any underlying software, documentation, or data. Customer agrees that it shall be liable for any breach or violation of this Agreement by itself and any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers.
- Customer is solely responsible for the content transmitted through the Services by Customer. Customer represents that all content it transmits through the Services is accurate, complete, up-to-date, and in compliance with all applicable local, state, national and international laws, rules, and regulations and the restrictions set forth herein. Customer agrees to monitor the use of the Services any any of its Authorized Users for any activity that violates applicable laws, rules, or regulations or any terms of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services.
- Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
- Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
- Customer agrees that the Services, including any underlying software, documentation, data, and all other materials provided to Customer by OneSchema, along with all know-how, good will, moral rights, trade secrets, and any related intellectual property rights therein, shall remain the sole and exclusive property of OneSchema, and You shall have no interest in any of the foregoing whatsoever. All right, title, and interest in the Services, except for information and content generated by a party other than OneSchema, are and will remain OneSchema’s exclusive property. You shall make no use of OneSchema’s intellectual property unless expressly agreed to by OneSchema or contemplated by an applicable Order Form of this Agreement. Any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and OneSchema will be free to use your feedback, comments, or suggestions as they seem fit and without any obligation or approval to you whatsoever.
3. Confidentiality
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or it would be reasonably understood to be confidential or proprietary information at the time of disclosure.
- The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The obligations to protect and not use or divulge to any third person Proprietary Information which constitutes a trade secret under applicable law shall last until such Proprietary Information no longer constitutes a trade secret. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein, and any other Proprietary Information which constitutes a trade secret under appliable law, which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. Payment of Fees
- Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
- If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider will make a commercially reasonable effort to respond to Customer within three (3) business days after receiving such inquires.
- Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than
U.S. taxes based on Service Provider’s net income. - If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
- Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
- Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form or this Agreement.
- The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”), along with this Section 5.4, shall survive termination of this Agreement.
6. Indemnification
- Service Provider agrees, at its own expense, to indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with any other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
- Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2, or otherwise from Customer’s use of Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer
specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and
cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
- Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.9% of all Scheduled Availability Time.“Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
- Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
- Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing Customer registration, training and change management process.
- Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 9:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
- Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
- Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
- Severity Levels and Response Times
collection services and
data reporting services
are down, causing
critical impact to
business operations; no
workaround available.
accordance with
provisions in
“Escalation
Procedures” section
below
provide a status update
by telephone and/or
e-mail within two (2)
business hours within
the initial occurrence of
the P1 issue. Service
Provider’s goal for
resolution of P1 issues
is within two (2)
calendar days of
Customer’s receipt of
issue notification.
services and data
reporting services are
significantly degraded
and/or impacting
significant aspects of
business operations.
accordance with
provisions in
“Escalation
Procedures” section
below.
provide a status update
by telephone, e-mail,
or via automated
notification as mutually
agreed upon by the
Parties, as warranted
until (i) the problem is
resolved, (ii) an
acceptable workaround
is found, or (iii) the
problem is determined
to be outside of Service Provider’s ability to control.
These Terms & Conditions (hereinafter referred to as this “Agreement”) contain the general terms and conditions that apply to customers and visitors (collectively, “Customer” or “You”) of OneSchema AI Inc. (hereinafter “OneSchema” or “Service Provider”) services, including any services listed in an applicable order form ( “Order Form”) and any other services provided by OneSchema (collective, the “Services”). BY ACCESSING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, WHICH ONESCHEMA MAY MODIFY FROM TIME TO TIME, IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PROVIDED BY ONESCHEMA.
1. Services and Support
In consideration of (and subject to) payment of the fees listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with Service Provider (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on Service Provider’s website, as modified from time to time in OneSchema’s sole discretion.
2. License, Restrictions, Responsibilities, and Ownership
- This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-assignable, royalty free license to ACCESS AND USE THE SERVICES, AND TO ALLOW ITS CUSTOMERS THE RIGHT TO ACCESS AND use THE SERVICE (CUSTOMER AND ITS CUSTOMERS ARE REFERRED TO HEREIN AS “AUTHORIZED USER”), AND TO reproduce and distribute internally within AN AUTHORIZED USER’S business (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Service Provider (the “Customer Data”).
- Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software, data, or documentation; use the Services, documentation, or data 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; combine or integrate the Services, documentation, or data with any software, technology, services, or materials which are not authorized by Service Provider; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services in connection with or promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email, multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities; publish the Services, or any underlying software, documentation, or data without the prior written consent of Service Provider; or remove any proprietary notices or labels from the Services, or any underlying software, documentation, or data. Customer agrees that it shall be liable for any breach or violation of this Agreement by itself and any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers.
- Customer is solely responsible for the content transmitted through the Services by Customer. Customer represents that all content it transmits through the Services is accurate, complete, up-to-date, and in compliance with all applicable local, state, national and international laws, rules, and regulations and the restrictions set forth herein. Customer agrees to monitor the use of the Services any any of its Authorized Users for any activity that violates applicable laws, rules, or regulations or any terms of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services.
- Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
- Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
- Customer agrees that the Services, including any underlying software, documentation, data, and all other materials provided to Customer by OneSchema, along with all know-how, good will, moral rights, trade secrets, and any related intellectual property rights therein, shall remain the sole and exclusive property of OneSchema, and You shall have no interest in any of the foregoing whatsoever. All right, title, and interest in the Services, except for information and content generated by a party other than OneSchema, are and will remain OneSchema’s exclusive property. You shall make no use of OneSchema’s intellectual property unless expressly agreed to by OneSchema or contemplated by an applicable Order Form of this Agreement. Any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and OneSchema will be free to use your feedback, comments, or suggestions as they seem fit and without any obligation or approval to you whatsoever.
3. Confidentiality
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or it would be reasonably understood to be confidential or proprietary information at the time of disclosure.
- The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The obligations to protect and not use or divulge to any third person Proprietary Information which constitutes a trade secret under applicable law shall last until such Proprietary Information no longer constitutes a trade secret. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein, and any other Proprietary Information which constitutes a trade secret under appliable law, which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. Payment of Fees
- Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
- If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider will make a commercially reasonable effort to respond to Customer within three (3) business days after receiving such inquires.
- Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than
U.S. taxes based on Service Provider’s net income. - If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
- Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
- Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form or this Agreement.
- The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”), along with this Section 5.4, shall survive termination of this Agreement.
6. Indemnification
- Service Provider agrees, at its own expense, to indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with any other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
- Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2, or otherwise from Customer’s use of Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer
specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and
cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
- Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.9% of all Scheduled Availability Time.“Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
- Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
- Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing Customer registration, training and change management process.
- Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 9:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
- Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
- Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
- Severity Levels and Response Times
collection services and
data reporting services
are down, causing
critical impact to
business operations; no
workaround available.
accordance with
provisions in
“Escalation
Procedures” section
below
provide a status update
by telephone and/or
e-mail within two (2)
business hours within
the initial occurrence of
the P1 issue. Service
Provider’s goal for
resolution of P1 issues
is within two (2)
calendar days of
Customer’s receipt of
issue notification.
services and data
reporting services are
significantly degraded
and/or impacting
significant aspects of
business operations.
accordance with
provisions in
“Escalation
Procedures” section
below.
provide a status update
by telephone, e-mail,
or via automated
notification as mutually
agreed upon by the
Parties, as warranted
until (i) the problem is
resolved, (ii) an
acceptable workaround
is found, or (iii) the
problem is determined
to be outside of Service Provider’s ability to control.
These Terms & Conditions (hereinafter referred to as this “Agreement”) contain the general terms and conditions that apply to customers and visitors (collectively, “Customer” or “You”) of OneSchema AI Inc. (hereinafter “OneSchema” or “Service Provider”) services, including any services listed in an applicable order form ( “Order Form”) and any other services provided by OneSchema (collective, the “Services”). BY ACCESSING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, WHICH ONESCHEMA MAY MODIFY FROM TIME TO TIME, IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PROVIDED BY ONESCHEMA.
1. Services and Support
In consideration of (and subject to) payment of the fees listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with Service Provider (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on Service Provider’s website, as modified from time to time in OneSchema’s sole discretion.
2. License, Restrictions, Responsibilities, and Ownership
- This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-assignable, royalty free license to ACCESS AND USE THE SERVICES, AND TO ALLOW ITS CUSTOMERS THE RIGHT TO ACCESS AND use THE SERVICE (CUSTOMER AND ITS CUSTOMERS ARE REFERRED TO HEREIN AS “AUTHORIZED USER”), AND TO reproduce and distribute internally within AN AUTHORIZED USER’S business (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Service Provider (the “Customer Data”).
- Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software, data, or documentation; use the Services, documentation, or data 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; combine or integrate the Services, documentation, or data with any software, technology, services, or materials which are not authorized by Service Provider; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services in connection with or promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email, multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities; publish the Services, or any underlying software, documentation, or data without the prior written consent of Service Provider; or remove any proprietary notices or labels from the Services, or any underlying software, documentation, or data. Customer agrees that it shall be liable for any breach or violation of this Agreement by itself and any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers.
- Customer is solely responsible for the content transmitted through the Services by Customer. Customer represents that all content it transmits through the Services is accurate, complete, up-to-date, and in compliance with all applicable local, state, national and international laws, rules, and regulations and the restrictions set forth herein. Customer agrees to monitor the use of the Services any any of its Authorized Users for any activity that violates applicable laws, rules, or regulations or any terms of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services.
- Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
- Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
- Customer agrees that the Services, including any underlying software, documentation, data, and all other materials provided to Customer by OneSchema, along with all know-how, good will, moral rights, trade secrets, and any related intellectual property rights therein, shall remain the sole and exclusive property of OneSchema, and You shall have no interest in any of the foregoing whatsoever. All right, title, and interest in the Services, except for information and content generated by a party other than OneSchema, are and will remain OneSchema’s exclusive property. You shall make no use of OneSchema’s intellectual property unless expressly agreed to by OneSchema or contemplated by an applicable Order Form of this Agreement. Any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and OneSchema will be free to use your feedback, comments, or suggestions as they seem fit and without any obligation or approval to you whatsoever.
3. Confidentiality
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or it would be reasonably understood to be confidential or proprietary information at the time of disclosure.
- The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The obligations to protect and not use or divulge to any third person Proprietary Information which constitutes a trade secret under applicable law shall last until such Proprietary Information no longer constitutes a trade secret. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein, and any other Proprietary Information which constitutes a trade secret under appliable law, which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. Payment of Fees
- Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
- If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider will make a commercially reasonable effort to respond to Customer within three (3) business days after receiving such inquires.
- Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than
U.S. taxes based on Service Provider’s net income. - If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
- Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
- In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice if the other party materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
- Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form or this Agreement.
- The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”), along with this Section 5.4, shall survive termination of this Agreement.
6. Indemnification
- Service Provider agrees, at its own expense, to indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with any other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
- Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2, or otherwise from Customer’s use of Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer
specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and
cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
- Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99.9% of all Scheduled Availability Time.“Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
- Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
- Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing Customer registration, training and change management process.
- Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 9:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
- Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
- Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
- Severity Levels and Response Times
collection services and
data reporting services
are down, causing
critical impact to
business operations; no
workaround available.
accordance with
provisions in
“Escalation
Procedures” section
below
provide a status update
by telephone and/or
e-mail within two (2)
business hours within
the initial occurrence of
the P1 issue. Service
Provider’s goal for
resolution of P1 issues
is within two (2)
calendar days of
Customer’s receipt of
issue notification.
services and data
reporting services are
significantly degraded
and/or impacting
significant aspects of
business operations.
accordance with
provisions in
“Escalation
Procedures” section
below.
provide a status update
by telephone, e-mail,
or via automated
notification within the
reporting interface of
the Measurement
Services as mutually
agreed upon by the
Parties, as warranted
until (i) the problem is
resolved, (ii) an
acceptable workaround
is found, or (iii) the
problem is determined
to be outside of Service Provider’s ability to
control.
These Terms & Conditions (hereinafter referred to as this “Agreement”) contain the general terms and conditions that apply to customers and visitors (collectively, “Customer” or “You”) of OneSchema AI Inc. (hereinafter “OneSchema” or “Service Provider”) services, including any services listed in an applicable order form ( “Order Form”) and any other services provided by OneSchema (collective, the “Services”). BY ACCESSING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, WHICH ONESCHEMA MAY MODIFY FROM TIME TO TIME, IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PROVIDED BY ONESCHEMA.
1. Services and Support
In consideration of (and subject to) payment of the fees listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with Service Provider (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on Service Provider’s website, as modified from time to time in OneSchema’s sole discretion.
2. License, Restrictions, Responsibilities, and Ownership
- This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-assignable, royalty free license to ACCESS AND USE THE SERVICES, AND TO ALLOW ITS CUSTOMERS THE RIGHT TO ACCESS AND use THE SERVICE (CUSTOMER AND ITS CUSTOMERS ARE REFERRED TO HEREIN AS “AUTHORIZED USER”), AND TO reproduce and distribute internally within AN AUTHORIZED USER’S business (and only in accordance with any applicable documentation), the documentation and data provided to Customer by Service Provider (the “Customer Data”).
- Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software, data, or documentation; use the Services, documentation, or data 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; combine or integrate the Services, documentation, or data with any software, technology, services, or materials which are not authorized by Service Provider; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services in connection with or promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email, multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities; publish the Services, or any underlying software, documentation, or data without the prior written consent of Service Provider; or remove any proprietary notices or labels from the Services, or any underlying software, documentation, or data. Customer agrees that it shall be liable for any breach or violation of this Agreement by itself and any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers.
- Customer is solely responsible for the content transmitted through the Services by Customer. Customer represents that all content it transmits through the Services is accurate, complete, up-to-date, and in compliance with all applicable local, state, national and international laws, rules, and regulations and the restrictions set forth herein. Customer agrees to monitor the use of the Services any any of its Authorized Users for any activity that violates applicable laws, rules, or regulations or any terms of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services.
- Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
- Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
- Customer agrees that the Services, including any underlying software, documentation, data, and all other materials provided to Customer by OneSchema, along with all know-how, good will, moral rights, trade secrets, and any related intellectual property rights therein, shall remain the sole and exclusive property of OneSchema, and You shall have no interest in any of the foregoing whatsoever. All right, title, and interest in the Services, except for information and content generated by a party other than OneSchema, are and will remain OneSchema’s exclusive property. You shall make no use of OneSchema’s intellectual property unless expressly agreed to by OneSchema or contemplated by an applicable Order Form of this Agreement. Any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and OneSchema will be free to use your feedback, comments, or suggestions as they seem fit and without any obligation or approval to you whatsoever.
3. Confidentiality
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or it would be reasonably understood to be confidential or proprietary information at the time of disclosure.
- The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The obligations to protect and not use or divulge to any third person Proprietary Information which constitutes a trade secret under applicable law shall last until such Proprietary Information no longer constitutes a trade secret. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein, and any other Proprietary Information which constitutes a trade secret under appliable law, which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. Payment of Fees
- Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
- If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider will make a commercially reasonable effort to respond to Customer within three (3) business days after receiving such inquires.
- Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than
U.S. taxes based on Service Provider’s net income. - If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
- Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
- In addition to any other remedies it may have, Service Provider may also terminate this Agreement upon ten (10) days’ notice if Customer materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
- Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form or this Agreement.
- The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”), along with this Section 5.4, shall survive termination of this Agreement.
6. Indemnification
- Service Provider agrees, at its own expense, to indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with any other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
- Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2, or otherwise from Customer’s use of Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer
specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and
cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
- Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99% of all Scheduled Availability Time.“Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.
- Maintenance. Service Provider will make available to Customer as part of the Services, all generally available enhancements, updates and bug fixes to the Services.
- Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing Customer registration, training and change management process.
- Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 9:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
- Customer Support List. Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
- Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
- Severity Levels and Response Times
collection services and
data reporting services
are down, causing
critical impact to
business operations; no
workaround available.
accordance with
provisions in
“Escalation
Procedures” section
below
provide a status update
by telephone and/or
e-mail within two (2)
business hours within
the initial occurrence of
the P1 issue. Service
Provider’s goal for
resolution of P1 issues
is within two (2)
calendar days of
Customer’s receipt of
issue notification.
services and data
reporting services are
significantly degraded
and/or impacting
significant aspects of
business operations.
accordance with
provisions in
“Escalation
Procedures” section
below.
provide a status update
by telephone, e-mail,
or via automated
notification within the
reporting interface of
the Measurement
Services as mutually
agreed upon by the
Parties, as warranted
until (i) the problem is
resolved, (ii) an
acceptable workaround
is found, or (iii) the
problem is determined
to be outside of Service Provider’s ability to
control.
These Terms & Conditions (hereinafter referred to as this “Agreement”) contain the general terms and conditions that apply to customers and visitors (collectively, “Customer” or “You”) of OneSchema AI Inc. (hereinafter “OneSchema” or “Service Provider”) services, including any services listed in an applicable order form ( “Order Form”) and any other services provided by OneSchema (collective, the “Services”). BY ACCESSING THE SERVICES, YOU ACCEPT AND AGREE TO BE BOUND BY AND ABIDE BY THIS AGREEMENT, WHICH ONESCHEMA MAY MODIFY FROM TIME TO TIME, IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES PROVIDED BY
ONESCHEMA.
1. Services and Support
In consideration of (and subject to) payment of the fees listed herein and on the applicable Order Form (the “Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’s account with Service Provider (the “Account”). Customer may use the administrative user name and password to create standard users (each with a user password) up to the maximum number permitted in the Order Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into this Agreement and using the Services, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on Service Provider’s website, as modified from time to time in OneSchema’s sole discretion.
2. License, Restrictions, Responsibilities, and Ownership
- This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider and no license is granted thereto, except as explicitly set forth in this Agreement. Subject to all terms of this Agreement, Service Provider hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use, reproduce and distribute the Services internally within Customer’s business (and only
in accordance with any applicable documentation), and use, reproduce and distribute the documentation and data provided to Customer by Service Provider for Customer’s internal use only (and only in accordance with any applicable documentation) - Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services (or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any underlying software, data, or documentation; use the Services, documentation, or data 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; combine or integrate the Services, documentation, or data with any software, technology, services, or materials which are not authorized by Service Provider; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; use the Services in connection with or promote any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email, multi-level marketing proposals, hate materials, hacking, surveillance, interception, or descrambling equipment, libelous, defamatory, obscene, pornographic, abusive, or otherwise offensive content, stolen products, and items used for theft, hazardous materials, or any illegal activities; publish the Services, or any underlying software, documentation, or data without the prior written consent of Service Provider; or remove any proprietary notices or labels from the Services, or any
underlying software, documentation, or data. Customer agrees that it shall be liable for any breach or violation of this Agreement by itself and any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers. - Customer is solely responsible for the content transmitted through the Services by Customer. Customer represents that all content it transmits through the Services is accurate, complete, up-to-date, and in compliance with all applicable local, state, national and international laws, rules, and regulations and the restrictions set forth herein. Customer agrees to monitor the use of the Services any any of its Authorized Users for any activity that violates applicable laws, rules, or regulations or any terms of this Agreement, including any fraudulent, inappropriate, or potentially harmful behavior, and promptly restrict any offending users of the Services from further use of the Services.
- Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook,
Android, Blackberry or iOS/App Store. - Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
- Customer agrees that the Services, including any underlying software, documentation, data, and all other materials provided to Customer by OneSchema, along with all know-how, good will, moral rights, trade secrets, and any related intellectual property rights therein, shall remain the sole and exclusive property of OneSchema, and You shall have no interest in any of the foregoing whatsoever. All right, title, and interest in the Services, except for information and content generated by a party other than
OneSchema, are and will remain OneSchema’s exclusive property. You shall make no use of OneSchema’s intellectual property unless expressly agreed to by OneSchema or contemplated by an applicable Order Form of this Agreement. Any feedback, comments, or suggestions you may provide regarding the Services are entirely voluntary and OneSchema will be free to use your feedback, comments, or suggestions as they seem fit and without any obligation or approval to you whatsoever.
3. Confidentiality
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was conspicuously marked
“Confidential”, “Proprietary” (or the like) at the time of disclosure, it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure, or it would be reasonably understood to be confidential or proprietary information at the time of disclosure. - The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The obligations to protect and not use or divulge to any third person Proprietary Information which constitutes a trade secret under applicable law shall last until such Proprietary Information no longer constitutes a trade secret. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure
thereof (except the Services and underlying software, algorithms and information embodied therein, and any other Proprietary Information which constitutes a trade secret under appliable law, which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without
restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information of the Customer or its users is revealed.
4. Payment of Fees
- Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which may be sent by email).
- If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider will make a commercially reasonable effort to respond to Customer within three (3) business days after receiving such inquires.
- Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income.
- If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
- Subject to earlier termination as provided below, this Agreement is for the initial service term as specified in the applicable Order Form (the “Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
- In addition to any other remedies it may have, Service Provider may also terminate this Agreement upon ten (10) days’ notice if Customer materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
- Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all Fees that have accrued or are otherwise owed by Customer under any Order Form or this Agreement.
- The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”), along with this Section 5.4, shall survive termination of this Agreement.
6. Indemnification
- Service Provider agrees, at its own expense, to indemnify, defend, and hold Customer harmless against any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with any other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of intellectual property of a third party.
- Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2, or otherwise from Customer’s use of Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance with Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE
PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, AND TO THE FULLEST EXTENT PROVIDED BY LAW, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C)
FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in addition to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the
United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
- 8. Severity Levels and Response Times
collection services and
data reporting services
are down, causing
critical impact to
business operations; no
workaround available.
accordance with
provisions in
“Escalation
Procedures” section
below
provide a status update
by telephone and/or
e-mail within two (2)
business hours within
the initial occurrence of
the P1 issue. Service
Provider’s goal for
resolution of P1 issues
is within two (2)
calendar days of
Customer’s receipt of
issue notification.
services and data
reporting services are
significantly degraded
and/or impacing
significant aspects of
business operations.
accordance with
provisions in
“Escalation
Procedures” section
below.
provide a status update
by telephone, e-mail,
or via automated
notification within the
reporting interface of
the Measurement
Services as mutually
agreed upon by the
Parties, as warranted
until (i) the problem is
resolved, (ii) an
acceptable workaround
is found, or (iii) the
problem is determined
to be outside of Service
Provider’s ability to
control.
Service Terms & Conditions
BY ACCESSING THE SERVICES, YOU (“CUSTOMER” OR “YOU”) ARE AGREEING TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES.
1. Services and Support
In consideration of (and subject to) payment of the fees and marketing obligations listed herein and on the applicable Order Form (the“Fees”) and subject to full compliance with all the terms and conditions of this Agreement, Service Provider will use reasonable commercial efforts to provide Customer the Services selected in the OrderForm and the applicable General Service Level Support Terms identified in Exhibit A. As part of the registration process, Customer will identify an administrative user name and password for Customer’sService Provider account (the “Account”). Customer may use the ad-ministrative user name and password to create standard users (each with a user password) up to the maximum number permitted in theOrder Form. Service Provider reserves the right to refuse registration of, or cancel passwords it deems inappropriate. By entering into thisAgreement and using the Service, Customer accepts and agrees to be bound by the Service Provider’s privacy policy listed on ServiceProvider’s website.
2. Restrictions and Responsibilites
- This is a contract for Services and the applicable hosted software will be accessed and maintained only by or for Service Provider and no li-cense is granted thereto. Subject to all terms of this Agreement, ServiceProvider hereby grants to Customer, for the term of this Agreement, anon-exclusive, non-sublicensable, non-transferable, non-assignable, royalty free license to use, reproduce and distribute internally within Customer’s business, and for Cus-tomer’s internal use only (and only in accordance with any applicable documentation), the documentation and data provided to Customer byService Provider (the “CustomerData”). Customer will not (and will not allow any third party, including any Authorized User, to), directly or indirectly: reverse engineer, decompile, disassemble or otherwise at-tempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services(or any underlying software, documentation or data related to the Services); modify, translate, or create derivative works based on the Services or any underlying software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any under-lying software; use the Services or any underlying software for time-sharing or service bureau purposes or otherwise for the benefit of a third party; publish the Customer Data without the prior written consent of Service Provider; or remove any proprietary notices or labels. Customer agrees that it shall be liable for any breach or violation of this Agreement by any Authorized User. For purposes of this Agreement, Authorized User means any employee or contractor of Customer or any employee or contractor of Customer’s customers.
- Customer represents, covenants, and warrants that Customer will access and use the Services only in compliance with Service Provider’s standard access and security policies then in effect. In connection with the foregoing, Customer agrees that the developer mode of the Services shall only be used for product development and testing. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, accessor otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). Customer shall be responsible for compliance with any and all applicable third party terms of service and privacy policies for platforms, networks and/or websites that they run their applications on, including but not limited to, Facebook, Android, Blackberry or iOS/App Store.
- Customer shall be responsible for ensuring that such Equipment is compatible with the Services and complies with all configurations and specifications set forth in Service Provider’s published policies then in effect. Customer shall also be responsible for maintaining the security of the Equipment, the Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Account or the Equipment with or without Customer’s knowledge or consent.
3. Confidentiality
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Notwithstanding the foregoing, nothing (except the Services and underlying software, algorithms and information embodied therein) will be considered “Proprietary Information” of the Disclosing Party unless either it is or was disclosed in tangible or written form and is conspicuously marked “Confidential”, “Proprietary” (or the like) at the time of disclosure or it is identified as confidential or proprietary at the time of disclosure and is delivered in the appropriately marked form within thirty (30) days of disclosure.
- The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except the Services and underlying software, algorithms and information embodied therein which shall remain confidential indefinitely) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law to be disclosed. In the performance of the Services, Service Provider is expressly authorized to collect general user data and report on the aggregate response rate and other aggregate measures of the Services’ performance, provided that the user data is anonymized and no personally identifying information
of the Customer or its users is revealed.
4. Payment of Fees
- Customer will pay Service Provider the Fees for the Services as listed on the applicable Order Form. Service Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then current Renewal Term (as defined below, upon thirty (30) days prior notice to Customer (which maybe sent by email).
- If Customer believes that Service Provider has billed Customer incorrectly, Customer must contact Service Provider no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Service Provider’s customer support department. Service Provider shall respond to Customer within three (3) business days after receiving such inquires.
- Service Provider may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Service Provider thirty (30) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Service Provider’s net income.
- If Customer exceeds its annual limit as reflected on an Order Form, a member of Service Provider’s customer success team will contact Customer to discuss upgrading Customer’s plan. Customer will have thirty (30) days to either upgrade or negotiate a new plan with Service Provider or Service Provider may terminate this Agreement for cause.
5. Termination
- Subject to earlier termination as provided below, this Agreement is for the initial Service Term as specified in the applicable Order Form (the“Initial Service Term”), and shall be automatically renewed for additional periods (each, a “Renewal Term” and collectively with the Initial Service Term, the “Term”) of the same duration as the Initial Service Term, unless either party requests termination at least thirty (30) days prior to the end of the then current term.
- In addition to any other remedies it may have, Service Provider may also terminate this Agreement upon ten (10) days notice if Customer materially breaches any of the terms or conditions of this Agreement, and if the breach is capable of remedy, fails to promptly remedy that breach within five (5) business days of notice. If this Agreement is terminated as a result of a material breach by Customer during the Initial Service Term, Customer will pay in full all remaining Fees payable through the remainder of the Initial Service Term. If this Agreement is terminated as a result of a material breach by Customer during a Renewal Term, the Customer will pay in full for the Services up to and including the last day on which the Services are provided.
- Termination (which includes expiration or non-renewal) of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under any order form.
- The parties’ rights and obligations under Sections 2 (“Restrictions and Responsibilities”), 3 (“Confidentiality”), 4 (“Payment of Fees”), 6 (“Indemnification”), 7 (“Warranty and Disclaimer”), 8 (“Limitation of Liability”), and 9 (“Miscellaneous”) shall survive termination of this Agreement.
6. Indemnification
- Service Provider agrees, at its own expense, to indemnify, defend Customer and hold Customer harmless against
any suit, claim, or proceeding brought against Customer alleging that the use of Services in accordance with this Agreement infringes any U.S. copyright, trademark or patent, provided that Customer (i) promptly notifies Service Provider in writing of any such suit, claim or proceeding, (ii) allows Service Provider, at Service Provider’s own
expense, to direct the defense of such suit, claim or proceeding, (iii) gives Service Provider all information and assistance necessary to defend such suit, claim or proceeding, and (iv) does not enter into any settlement of any such suit, claim or proceeding without Service Provider’s written consent. The foregoing obligations do not apply
with respect to the Services or portions or components thereof (x) not supplied by Service Provider, (y) made in whole or in part in accordance to Customer specifications, (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. This section states Service
Provider’s entire liability and Customer’s exclusive remedy for infringement or misappropriation of
intellectual property of a third party. - Customer hereby agrees, at its own expense, to indemnify, defend and hold harmless Service Provider against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding that arises from an alleged violation of Sections 2.1 to 2.3, or otherwise from Customer’s use of Services excluded from Service Provider’s aforementioned indemnity obligations in the second to last sentence of Section 6.1, above.
7. Warranty and Disclaimer
SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET CUSTOMER’S REQUIREMENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERE TO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR PROFITS; B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE APPLICABLE SERVICES UNDER THIS AGREEMENT OR RELATING TO ANY SUBJECT MATTER OF THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. CUSTOMER ACKNOWLEDGES THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF SERVICE PROVIDER, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY SERVICE PROVIDER, SHALL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OFANY REMEDY PROVIDED IN THIS AGREEMENT.
9. Miscellaneous
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Service Provider’s prior written consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed on behalf of both parties by their duly authorized representatives, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind or attempt to bind Service Provider in any respect whatsoever. In any action or proceeding to enforce rights under thisAgreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The parties agree that any material breach of Section 2 or 3 will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of Section 2 or 3 in additional to any other relief to which the owner of such Proprietary Information may be entitled. This Agreement shall be governed by the laws of the State ofCalifornia without regard to its conflict of laws provisions. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California, or in a state court in SanFrancisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
Exhibit A
General Service Level Support Terms
- Up-Time and Reliability. Service Provider will use reasonable commercial efforts with the intent that Services will be available and operational to Customer for 99% of all Scheduled Availability Time. “Scheduled Availability Time” shall be defined as twenty-four (24) hours a day, seven (7) days a week, excluding: (i) scheduled maintenance downtime; (ii) maintenance downtime for specific critical Service issues; and (iii) any downtime due to defects caused by Customer, one of its vendors, third party connections, utilities, or caused by other forces beyond the control of Service Provider (such as internet outages or outages with respect to Customer’s network or internet access). Service Provider shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption
- Maintenance.Service Provider will make available to Customer as part of the Services, all generally available enhancements,updates and bug fixes to the Services.
- Customer Responsibility. In addition to other responsibilities contained herein, Customer will be responsible for ongoing maintenance, management and accuracy of the vendor profile data. Additionally, Customer will be responsible for communicating and managing Customer registration, training and change management process.
- Support. Service Provider is available to receive product support inquiries via email or the Service Provider website 24 hours per day. Service Provider Standard Support Hours are 9:00 to 17:00 Pacific Time Monday through Friday for technical information, technical advice and technical consultation regarding Customer’s use of the Services.
- Customer Support List. . Customer shall provide to Service Provider, and keep current, a list of designated contacts and contact information (the “Support List”) for Service Provider to contact for support services. Such Support List shall include (i) the first person to contact for the answer or assistance desired, and (ii) the persons in successively more responsible or qualified positions to provide the answer or assistance desired.
- Classification of Problems. Service Provider shall classify each problem encountered by Customer according to the following definitions and will use reasonable commercial efforts to address the problem in accordance with such classification according to the table below.
- SEVERITY LEVELS AND RESPONSE TIMES