These Terms of Service (together, the “Terms of Service”) apply to any access to, or use of, the Platform, as defined herein, as made available by Botsi Inc., a Delaware (US) for profit business corporation (“Botsi”, “we”, “us”, or “our”). For the purposes of these Terms of Service, the terms “you”, “your”, and “Subscriber” means you as the Subscriber of the Platform. You and Botsi may be referred to herein, each individually, as a “Party”, and, collectively, as the “Parties”.
If you are accessing or using the Platform on behalf of a business or entity, then the terms, as set forth above, “you”, “your”, and “Subscriber” shall include you and that business or entity. Additionally, you (a) represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to this Terms of Service, and that you agree to the Agreement on the entity’s behalf, and (b) you understand and acknowledge that your business or entity is legally and financially responsible for your access or use of the Platform as well as for the access or use of your account by others affiliated with your entity, including any employees, agents or contractors.
By clicking the “Accept” button or checking the appropriate box to accept these Terms of Service, or by downloading, installing, accessing or using botsi.com or the platform (the “Platform”), you acknowledge that you agree to be bound by, and be subject to, these Terms of Service, the date of which shall be considered the “Effective Date” of these Terms of Service. For the avoidance of doubt, this Agreement is applicable to you regardless of the type of Subscription selected, as indicated on the Order Form (as defined below).
IF YOU DO NOT AGREE TO TEHSE TERMS OF SERVICES, DO NOT CLICK THE “ACCEPT” BUTTON OR CHECK ANY BOX TO ACCEPT THESE TERMS OF SERVICE. DO NOT DOWNLOAD, ACCESS OR USE THE PLATFORM. YOU ACKNOWLEDGE AND AGREE THAT LOGGING IN, DOWNLOADING, ACCESSING OR USING ANY PORTION OF THE PLATFORM IN ANY MANNER CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS OF SERVICE.
ARBITRATION NOTICE FOR SUBSCRIBERS IN THE UNITED STATES: THESE TERMS OF SERVICE CONTAIN AN ARBITRATION CLAUSE PURSUANT TO WHICH YOU AND BOTSI AGREE THAT ALL DISPUTES ARISING IN CONNECTION WITH THESE TERMS OF SERVICE AND YOUR USE OF THE PLATFORM MAY BE SUBMITTED TO MANDATORY BINDING ARBITRATION.
- Definitions. Capitalized terms used but not otherwise defined herein have the meaning ascribed to them in Exhibit A, attached hereto. In the event you have previously executed and entered into a Subscription Agreement with Botsi which is now still in effect, or hereafter execute and enter into a Subscription Agreement, such Subscription Agreement and its terms shall supersede these Terms of Service.
2. Platform License.
2.1 License Grant. Subject to the terms and conditions of this Terms of Service, including any applicable Order Form, and solely during the Subscription Term set forth in the applicable Order Form, Botsi grants to the Subscriber a worldwide, non-exclusive, non-sublicensable, non-transferable, and non-assignable (except as set out in Section 11.2 below), limited license to access and use the Platform solely for the Subscriber’s business purposes and use the Platform for the purposes described herein and solely to the extent subscribed and for no other purposes (the “License”). Additional limitations may be set forth in the applicable Order Form
2.2 Restrictions on Use; Other Obligations.
(a) The Subscriber shall not and shall not permit any other Person to:
(i) License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the License or any other rights to access or use the Platform;
(ii) Disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Platform, or modify, make derivative works based upon, copy or otherwise use any ideas, features, functions or graphics of the Platform in order to: (1) build a competitive product or service; or (2) build a product using similar features, functions, or graphics of the Platform;
(iii) Input, upload, transmit, store or otherwise provide to or through the Platform any materials: (1) which are infringing, unlawful, or tortious; or (2) contain, transmit, or activate any Harmful Code;
(iv) Bypass or breach or attempt to bypass or breach any security mechanism on the Platform, or otherwise attempt to gain unauthorized access to the Platform or its related systems or networks or permit Third Parties to access the Platform;
(v) Challenge, cause, induce, authorize or assist any Person to assert ownership of or challenge, the validity, ownership, use or registration of any Intellectual Property Rights of Botsi, including in and to the Platform;
(vi) Under or in connection with any part of these Terms of Service or its subject matter, perform any act that, or fail to perform any act the omission of which, infringes, misappropriates or otherwise violates any Intellectual Property Rights of Botsi or other right of any Person, or violates any applicable Law, including data protection and privacy Laws; or
(vii) Use the Platform in a way that: (1) contravenes or violates applicable Law; or (2) otherwise fails to comply with these Terms of Service.
2.3 Account Activation. Botsi shall provide the Subscriber its own unique account (an “Account”) to access and utilize the Platform. The Subscriber is fully responsible for all activities performed on or through its Account. The Subscriber agrees that the Subscriber shall: (i) provide true, accurate, current and complete information as prompted by the Platform, including any registration form; (ii) maintain and promptly update the data with which it provides to ensure the information is always true, accurate, current, and complete; (iii) inform Botsi as soon as possible after knowledge of the circumstances of any unauthorized use of any Account for which it is responsible; and (iv) exit from its respective Account at the end of each session.
2.4 Access Credentials; Unauthorized Access. The Subscriber is responsible for maintaining the confidentiality of its Access Credentials (as defined in Exhibit A). Botsi will not be liable for any loss that the Subscriber incurs as a result of unauthorized use of any Access Credentials, either with or without the knowledge of the Subscriber.
2.5 Third Party Licenses. The Platform may include, incorporate, utilize or work with other software, including certain open-source software tools, applications, content, data or other materials, including related documentation, that are owned or provided by Third Parties and that are provided, as applicable, via license and service terms that are in addition to and may be different from those contained in these Terms of Service (“Third Party Licenses”). The Subscriber agrees to be bound by and shall comply with all Third Party Licenses. Any breach by the Subscriber of any Third Party License will be considered a breach of these Terms of Service; provided, that Botsi shall provide a list of all Third Party Licenses upon the request of the Subscriber.
2.6 Third Party Websites; No Endorsements or Guarantees. The Platform may contain links to websites, contents, materials, reports and assessments (which may be of a professional nature or have legal substance) controlled or produced by Third Parties (“Third Party Websites and Materials”). Third Party Websites and Materials are provided only as a convenience. The Subscriber bears all risks associated with access to and use of content provided on Third Party Websites and Botsi is not responsible for and does not endorse or accept any responsibility for the availability, contents (completeness, accuracy or otherwise), products, services or use of any Third Party Websites and Materials. Without limitation, Botsi does not make any guarantees and hereby disclaims all warranties concerning the content or quality of the contents, products or services provided on Third Party Websites and Materials. The inclusion of any link to any Third Party Websites and Materials does not imply affiliation or association with such Third Party Websites and Materials.
2.7 Connected Applications. The Platform may contain features designed to interoperate with Connected Applications. To use such features, the Subscriber may be required to obtain access to such Connected Applications from their providers, and grant Botsi access to the Subscriber’s account(s) on such Connected Applications. If the Subscriber uses a Connected Application with the Platform, the Subscriber grants Botsi permission to allow the Connected Application and its provider to access Subscriber Data solely as required for the interoperation of that Connected Application with the Platform. Any acquisition by the Subscriber of Connected Applications, and any exchange of Subscriber Data between the Subscriber and any Connected Application provider, product or service, is solely between the Subscriber and the applicable Connected Application provider. Botsi does not warrant or support Connected Applications and is not responsible for any disclosure, modification or deletion of Subscriber Data resulting from access by any Connected Application or its provider.
2.8 Technical Requirements. The Subscriber is solely responsible for the operation, management, and maintenance of its hardware and related electronic equipment, systems, databases, networks, software and internet access necessary to access and use the Platform (“Subscriber Systems”). Botsi neither represents nor warrants that the Platform will be accessible through all browser releases or all versions of tablets, smartphones, or other computing devices or that the Platform will be able to be integrated with or within the Subscriber’s own application(s), in any case,. Botsi is not responsible or liable for any delay or failure of performance caused in whole or in part by any Subscriber Systems (or any other technical failure of the Subscriber). The Subscriber will be responsible for supplying Botsi with any technical data and other information Botsi may reasonably request to enable Botsi to provide the Platform to the Subscriber.
2.9 Suspension of Access. Any use of the Platform in violation of these Terms of Service that, in Botsi’s reasonable judgment, threatens the security, integrity or availability of the Platform may result in Botsi immediately suspending all (or selective, at the sole discretion of Botsi) access to the Platform. Botsi may further immediately suspend access to the Platform if Botsi receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires such suspension. Where Botsi is permitted to suspend or terminate any access to the Platform under these Terms of Service, Botsi may do so by any legal means.
3. Subscriber Data.
3.1 Acknowledgments, Obligations and Representations. The Subscriber: (a) exclusively own all rights, title and interest in and to all Subscriber Data, in any form or medium, that is uploaded, posted, published, transmitted, stored or otherwise made available through their use of the Platform (including all changes and additions thereto); and (b) shall be solely and exclusively responsible for Subscriber Data used in conjunction with their use of the Platform. Botsi has no responsibility for verifying or maintaining any Subscriber Data, and in no way will be liable for the accuracy, availability, correctness, timeliness or any other quality of or concerning the Subscriber Data. Accordingly, the Subscriber is solely and exclusively responsible for ensuring and hereby represents and warrants that: (i) it has all of the rights, licenses, and privileges that are required to provide and use of all of Subscriber Data that is submitted to, uploaded to, placed on, transmitted through, or monitored by the Platform; (ii) no portion of the Subscriber Data is unlawful or infringes upon the rights of any Third Party, including any Third Party Intellectual Property Rights; (iii) the provision and use of Subscriber Data as contemplated by these Terms of Service does not and will not violate any privacy policy, terms of use, or other agreement to which the Subscriber is bound or any applicable Law, including, but not limited to, as applicable to Subscriber, Apple’s Program License Agreements and Google Play’s Developer Distribution Agreement; and (iv) that all Subscriber Data is accurate, correct and complete, and timely updated to effect the same. Botsi may, at its sole discretion, restrict, limit or reject the storage or transmission of any Subscriber Data and remove any Subscriber Data that has previously been uploaded or transmitted to the Platform, if Botsi reasonably believes that such Subscriber Data or the use thereof is in violation of the terms of these Terms of Service or applicable Law.
3.2 Subscriber Data License; Privacy Policy. The Subscriber grants to Botsi a non-exclusive, worldwide, royalty free fully paid license to access and use the Subscriber Data in connection with its provision of the Platform pursuant to these Terms of Service and to monitor, develop and improve the Platform. Botsi may but will have no obligation to monitor the Subscriber Data and the Subscriber’s use of the Platform generally, without restriction. Botsi’s use of Subscriber Data (and Anonymized Data (as defined in Section 3.3) and Subscriber Usage Data (as defined in Section 3.4)) will be subject any written privacy policy of Botsi (the “Privacy Policy”), as may be in effect from time to time, and amended in accordance with its terms, the terms of which are incorporated herein by reference, and with the current version of Botsi’s Privacy Policy available at privacy policy.
3.3 Anonymized Data. The Subscriber acknowledges and agrees that data derived from the Subscriber Data or the Subscriber’s use of the Platform generally (including Subscriber Usage Data), that is anonymized, de-identified, or is otherwise not reasonably associated or linked to the Subscriber (“Anonymized Data”) may be used for the purposes of analysis, including statistical analysis, trend analysis, creation of data models and creation of statistical rules. Such analysis may be performed in conjunction with data derived from other customers and from other data sources. The Anonymized Data and results of any analysis thereof may be used by Botsi for improvement of the Platform and Botsi may otherwise commercially exploit the Anonymized Date for any lawful purpose. The rights to use the Anonymized Data described under this Section 3.3 will survive any expiration or termination of these Terms of Service.
3.4 Subscriber Usage Data. The Subscriber further acknowledges and agrees that Botsi may, directly or indirectly, including through the services of Third Parties, collect and store information and data in connection with the Subscriber’s use of the Platform including Subscriber Systems on which is installed or through which it otherwise is accessed and used (the “Subscriber Usage Data”). Botsi may collect such information and data through lawful means including: (a) the Subscriber’s access and use of the Platform; and (b) the provision of services through the Platform. Botsi may access, use, and provide Third Parties with access to and use of the Subscriber Usage Data for the following enumerated purposes: (i) making the Platform functional and usable for the Subscriber; (ii) providing the Subscriber with the services available through the Platform; (iii) improving the performance of the Platform; (iv) developing Updates; and (v) verifying the Subscriber’s compliance with the terms of these Terms of Service and enforcing Botsi’s rights, including all Intellectual Property Rights in and to the Platform. The rights to use the Subscriber Usage Data described under this Section 3.4 will survive any expiration or termination of these Terms of Service.
3.5 Subscriber Data Backups. BOTSI HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF SUBSCRIBER DATA. WITHOUT LIMITATION, THE SUBSCRIBER ACKNOWLEDGES THAT SUBSCRIBER DATA MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, VIRUSES OR OTHER HARMFUL MATERIALS, PROTOCOL CHANGES BY THIRD PARTIES, INTERNET OUTAGES, FORCE MAJEURE EVENT OR OTHER DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE. THE SUBSCRIBER IS SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF SUBSCRIBER DATA, OR OTHERWISE ANY INFORMATION OR RECORDS THAT THE SUBSCRIBER UPLOADS, STORES OR TRANSFERS IN CONNECTION WITH THE PLATFORM.
3.6 No Sensitive Data.
(a) Without the prior written consent or request of Botsi, the Subscriber shall not upload, transmit, store, disclose or make available through the Platform any Sensitive Data, and Botsi will have no liability whatsoever for Sensitive Data transmitted through the Platform.
(b) In addition to Section 3.6(a) above, the Subscriber acknowledges that the Platform and its services and features are not intended for the processing, as it is defined under applicable law, of Subscriber Data of individuals under the age of thirteen (13) without the Subscriber’s compliance with applicable Laws, including but not limited to, the Children’s Online Privacy Protection Act ("COPPA"). The Subscriber shall not provide, upload, or transmit to Botsi, or otherwise cause Botsi to use or process, any Subscriber Data of individuals under the age of thirteen (13) unless the Subscriber has fully complied with all requirements of the COPPA, including, without limitation, obtaining verifiable parental consent where required. As such, the Subscriber represents and warrants that it will not provide, upload, or transmit to Botsi any Personal Data of a child under the age of thirteen (13) unless such provision and the processing of such Personal Data by Botsi is lawful under COPPA and any other applicable Laws. Botsi reserves the right to delete or block the use or processing of any Subscriber Data that it reasonably believes may violate Section 3.6. For the avoidance of doubt, Botsi will have no responsibility or liability whatsoever for Subscriber Data of individuals under the age of thirteen (13), which was unlawfully obtained by the Subscriber or unlawfully provided or transmitted by the Subscriber to Botsi, whether due to the Subscriber’s violation of COPPA or otherwise.
4. Intellectual Property.
4.1 Ownership. The Subscriber acknowledges and agrees that Botsi or its licensors, as the case may be, have and will retain any and all rights, title and interest in and to the Platform, the services, products, and features provided therein, and any underlying software and code, as well as all derivative works made by any Person based upon any of the foregoing, including all associated Intellectual Property Rights. Any Updates and customizations and other modifications of the Platform (and all Intellectual Property Rights associated with the foregoing), regardless of the Person so Updating, customizing or modifying the Platform, will be owned exclusively by Botsi.
4.2 Feedback. If the Subscriber provides Botsi with any feedback or suggestions about the Platform or otherwise (the “Feedback”), Botsi may use the Feedback without obligation to the Subscriber, and the Subscriber irrevocably assigns to Botsi all right, title, and interest in and to the Feedback.
4.3 No Transfer. Except as expressly set forth herein, these Terms of Service do not transfer to either Party (or any other Person) any rights of ownership in, or related to, any Intellectual Property Rights.
5. Confidentiality.
5.1 Confidential Information. Without limiting the rights and obligations of the Parties under any other confidentiality or non-disclosure agreement now or hereinafter in place between Botsi and the Subscriber, all of which shall continue in full force and effect until they expire or are terminated pursuant to their respective terms, each Party (the “Recipient”) acknowledges that the other Party (the “Discloser”) has business, technical, or financial information relating to the Discloser’s business which it has disclosed or may disclose in connection with these Terms of Service that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”), which includes the terms and conditions of these Terms of Service. Botsi’s Confidential Information includes non-public information regarding features, functionality, pricing, and performance of the Platform and products and services provided through the Platform, as well as all non-public Subscriber-visible aspects of the Platform. The Subscriber’s Confidential Information includes Subscriber Data.
5.2 Non-Use. The Recipient shall protect the Confidential Information of the Discloser using those measures that it takes to protect its own Confidential Information but using no less reasonable care. The Recipient agrees: (i) not to use any Confidential Information of the Discloser for any purpose except to perform its obligations or to exercise its rights under these Terms of Service; and (ii) not to disclose any Confidential Information of Recipient to Third Parties, except to the Recipient’s own employees, officers, agents, contractors, or other representatives (“Personnel”) who have a legitimate need to know such Confidential Information in order to perform work in connection with these Terms of Service and who are subject to written confidentiality obligations as least as protective as those of these Terms of Service. All Personnel shall comply with this Section 5 and the Recipient will be liable for all violations hereof by any of its Personnel.
5.3 Exceptions. The Discloser agrees that these confidentiality obligations and restrictions on use will not apply to any information that the Recipient can document: (a) is or becomes generally available to the public through no action or inaction of the Recipient; (b) was in its possession or known by it prior to receipt from the Discloser; (c) was rightfully disclosed to it without restriction by a Third Party; or (d) was independently developed without use of or reference to any Confidential Information of the Discloser. Nothing in this Section 5 precludes either Party from disclosing the other Party’s Confidential Information as required by Law, provided that the Recipient: (i) gives the Discloser prior written notice sufficient to permit the Discloser to contest the disclosure or seek a protective order (or other confidential treatment); and (ii) reasonably cooperates with the Discloser (at the Discloser’s expense) in limiting the disclosure. In addition, a Party may disclose information concerning these Terms of Service and the transactions contemplated under these Terms of Service, including providing a copy of these Terms of Service, to potential acquirers, merger partners, investors, and their personnel, attorneys, auditors, and investment bankers (solely in connection with the due diligence review of such Party and provided that the recipients of the disclosures are subject to confidentiality obligations as least as protective as those in these Terms of Service).
5.4 Return of Confidential Information. Except with respect to Subscriber Data, the return of which is addressed in Section 5.5, promptly following the earlier of: (i) the expiration or termination of these Terms of Service; or (ii) the request of the Discloser, Recipient will return to the Discloser, or, at the Discloser’s option, destroy all Confidential Information of the Discloser that are in written, electronic, or other tangible form, including all copies, extracts, and derivatives of such Confidential Information. In addition, at the request of the Discloser, the Recipient will certify to the Discloser in writing the Recipient’s and its Personnel’s compliance with its obligations pursuant to this Section 5.4.
5.5 Return of Subscriber Data. Botsi will retain and upon request make available to the Subscriber any Subscriber Data stored on the Platform or within Botsi’s local environment/servers through Botsi’s data storage services, as applicable. Such obligations will expire thirty (30) days following the termination of these Terms of Service, unless a longer period is required to comply with applicable Law (such period, the “Holding Period”). Following the Holding Period, Botsi may delete all Subscriber Data in its possession.
5.6 Redundancy. Notwithstanding the foregoing, the Recipient may retain Confidential Information: (i) contained in electronic archives and backups made in the ordinary course of business; (ii) that such Party is required by applicable Law to maintain; or (iii) that such Party reasonably determines necessary to demonstrate to the other Party or any governmental authority the Recipient’s compliance with these Terms of Service or any applicable Law; provided that all such Confidential Information retained will remain subject to the protections set forth herein for so long as it remains in the Recipient’s possession or control. At such time the Recipient’s basis for retaining such information pursuant to subsection (ii) or (iii) ceases to exist, the Recipient shall return or destroy such information as set forth above.
6. Fees and Payment Terms.
6.1 Fees. The Subscriber shall pay Botsi the fees (the “Subscription Fees”) set forth on the applicable Order Form in accordance with the terms and schedule set forth thereon.
6.2 Taxes. The Subscriber will be responsible for all sales, use, VAT and excise taxes and any other similar taxes, duties and charges of any kind imposed by any applicable Law on any amounts payable by the Subscriber hereunder in relation to the Platform; provided, that, in no event will the Subscriber be responsible for any taxes imposed on, or with respect to, Botsi’s income, revenues, gross receipts, personnel or real or personal property or other assets.
6.3 Payment; Disputes. The timing for the Subscriber’s payment of the Subscription Fees (the “Billing Cycle”) will be set forth in the corresponding Order Form. Unless otherwise set forth in the Order Form, the Subscription Fees in connection with Subscriber’s Subscription will initially be due and payable on or before the beginning of the Subscription start date (the “Subscription Start Date”) and subsequently, on the same day of the following month, quarter, or year, as applicable, in accordance with the Subscriber’s Billing Cycle.
6.4 Payment Procedures. The Subscriber will make all payments due hereunder in US Dollars ($) via credit card or wire transfer, or other such method that may be specified by Botsi from time to time.
6.5 Late Payments. All payments more than seven (7) but less than thirty (30) days late will incur a late payment fee of five percent (5%). All payments that are thirty (30) or more days late shall thereafter additionally bear interest at the lesser of one and one-half percent (1.5%) per month or the highest rate permitted under applicable law, calculated daily and compounded monthly. The Subscriber shall also reimburse Botsi for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Without limitation to any other available remedy, in the event the Subscriber fails to pay any undisputed amounts within ten (10) days of the due date, Botsi may suspend the provision of the Platform. All late payments are a material breach of this Agreement.
6.6 Price Changes. Botsi may, in its sole discretion, amend its Subscription Fees and pricing structure for payment of Subscription Fees in connection with the Platform and the Subscriptions. All changes in Subscription Fees shall be communicated by Botsi to the Subscriber no less than thirty (30) days prior to the effective date of such change. Notwithstanding anything to the contrary herein, and except as provided for in an applicable Order form, for each Subscription, changes to Subscription Fees due will take effect only upon the renewal of a Subscription Term of that Subscription.
7. Term and Termination.
7.1 Term. The initial term of these Terms of Service will begin on the Effective Date and continue for one (1) year. Thereafter, the Terms of Service will automatically renew on the same terms and conditions for successive additional one (1) year terms (the initial term together with any renewal terms, collectively, the “Term”), unless notice is given by any Party to the other Party of non-renewal at least sixty (60) days prior to the expiration of the then current Term, or until earlier terminated by the Parties under Section 7.3. If there are any active Order Forms existing under these Terms of Service as of the expiration or termination of these Terms of Service, the terms of these Terms of Service will continue with respect to the outstanding Order Form(s) until the expiration, termination or completion of each such Order Form.
7.2 Subscription Term. The License will commence on the Subscription Start Date set forth in the corresponding Order Form and will continue in effect for the period of time prescribed in the Order Form and will automatically renew for consecutive periods of equal length (unless a different period is otherwise stated in the Order Form) (the initial period together with any renewal periods, the “Subscription Term”), unless either Party provides the other Party notice of non-renewal at least sixty (60) days prior to the end of the then current term or until it is terminated in accordance herewith. The expiration or termination of any individual Order Form will not be deemed to automatically expire or terminate any other Order Form or this Agreement.
7.3 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Either Party may terminate this Agreement and any or all Order Forms, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach. Either Party may terminate a given Order Form, effective upon written notice to other Party if the other Party materially breaches such Order Form, and such breach: (1) is incapable of cure; or (2) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(b) Either Party may terminate this Agreement and any or all Order Forms, effective upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Botsi may further terminate this Agreement, effective upon written notice to the Subscriber, if: (i) Botsi reasonably determines that further provision of the Platform would be (or would present a substantial risk) in contravention of any applicable Law; or (ii) if any failure in payment of the Subscription Fees continues for more than fifteen (15) days after the Subscriber’s receipt of notice of such failure.
7.4 Effect of Expiration or Termination.
(a) Upon any expiration or termination of this Agreement, the License and all other licenses granted to the Subscriber hereunder or any Order Form will expire. Upon expiration or termination of any individual Order Form, all licenses under such Order Form will expire. Upon any such expiration or termination, the Subscriber and its Authorized Users will immediately cease all access and use of the Platform and Botsi may immediately terminate such access and use by any lawful means.
(b) In the event of termination by the Subscriber pursuant to Sections 7.3(a) or by Botsi pursuant to Section 7.3(c)(i), the Subscriber shall be entitled to a pro rata refund of any prepaid Subscription Fees under the terminated Order Forms.
7.5 Survival. Every provision of this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any termination or expiration of this Agreement, including provisions: (i) regarding Confidential Information; (ii) regarding Intellectual Property Rights; (iii) relating to the payment of any sums that become due hereunder; (iv) regarding indemnification obligations; (v) limiting or disclaiming liability; or (vi) aiding in the interpretation of this Agreement.
8. No Warranties; AI Functionalities. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE PLATFORM AND SERVICES PROVIDED THROUGH THE PLATFORM ARE PROVIDED TO THE SUBSCRIBER ON AN “AS IS” AND “AS AVAILABLE” BASIS. OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, NONE OF BOTSI, ITS AFFILIATES, LICENSORS OR SUPPLIERS, NOR ITS OR THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, MANAGERS, AGENTS OR REPRESENTATIVES MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO THE SUBSCRIBER, OR ANY OTHER PERSON OR ENTITY, WITH RESPECT TO THE PLATFORM OR OTHERWISE, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ANY WARRANTY THAT USE OF THE PLATFORM WILL BE TIMELY, ERROR FREE OR UNINTERRUPTED, THAT ANY NON-MATERIAL ERRORS OR DEFECTS IN THE PLATFORM WILL BE CORRECTED, THAT THE OPERATION OF THE PLATFORM WILL BE SECURE, THAT THE PLATFORM’S FUNCTIONALITY WILL MEET THE SUBSCRIBER’S REQUIREMENTS, OR THAT THE PLATFORM WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA NOT PROVIDED OR RECOMMENDED BY BOTSI, THAT ANY MODELS, TEMPLATES, ANALYTICS, OPTIMIZATIONS, BUILDER TOOLS (SUCH AS, AS APPLICABLE, THE PLATFORM’S PAYWALL AND ONBOARDING BUILDER), OR OTHERWISE ANY PRODUCTS, FEATURES, OR SERVICES AVAILABLE WITHIN THE PLATFORM, WILL BE ACCURATE, COMPLETE, ERROR-FREE, LEAD TO OR PRODUCE ANY DESIRED RESULT OR USEABILITY, OR PROPERLY INTEGRATE WITH SUBSCRIBER DATA,. Without limiting any other disclaimer hereunder, Botsi expressly disclaims any warranty, representation or liability related to or arising out of the artificial intelligence and machine learning functionalities and services integrated within the Platform (the “AI Functionalities”), including the accuracy, reliability or correctness thereof. The AI Functionalities are provided “as-is” and “as-available” and the Subscriber assumes all risk of use of any AI Functionalities including damage to or loss of any Subscriber Data that may result therefrom.
9. Indemnification.
9.1 Indemnification Obligations of Subscriber. The Subscriber will defend, indemnify, and hold harmless Botsi and its affiliates and its and their respective directors, officers, managers, shareholders, members, employees, licensors, representatives, and agents (the “Botsi Indemnified Parties”) from and against any and all Losses to the extent based upon or arising from Claims alleging: (i) the negligence, unlawful conduct or intentional misconduct of the Subscriber; (ii) a breach or violation by the Subscriber of Section 2, Section 3, or Section 5.
9.2 Procedure for Handling Indemnification Claims. Botsi (as the “Indemnified Party”) shall provide the Subscriber (as the “Indemnifying Party”) with: (i) prompt written notice of the Claim, as applicable (provided that the failure to provide such notice will not relieve the Indemnifying Party of its obligations unless such failure prejudices its ability to defend the Claim); (ii) sole control of the defense and settlement of the Claim (except that the Indemnified Party’s prior written approval will be required for any settlement that requires any action, inaction, or admission by the Indemnified Party, requires the payment of any amount that will not be fully satisfied by the Indemnifying Party or does not include a complete release of claims against the Indemnified Party, such approval not to be unreasonably withheld, conditioned, or delayed); and (iii) cooperation as reasonably requested by the Indemnifying Party at the Indemnifying Party’s expense in connection with the defense of the Claim. The Indemnified Party may participate in any indemnified matter with counsel of its own choosing at its own expense. The Indemnified Party’s failure to comply with the provisions of this Section 9.2 will not limit the Indemnifying Party’s obligations under this Section 9 except to the extent the Indemnifying Party is actually prejudiced thereby.
10. Limitation of Liability.
10.1 Exclusions of Liability. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, LICENSORS OR SUPPLIERS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES BE LIABLE TO THE OTHER PARTY, OR ANY OTHER PERSON OR ENTITY FOR LOSS PROFITS OR REVENUE, LOSS OF GOODWILL, BUSINESS OR OPPORTUNITY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SERVICE OR THEIR SUBJECT MATTER, WHETHER SUCH LIABILITY IS BASED ON ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10.2 Maximum Liability. SUBJECT TO SECTION 10.3, THE MAXIMUM AGGREGATE LIABILITY OF BOTSI FOR ALL CLAIMS UNDER, IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SERVICE OR THEIR SUBJECT MATTER, WHETHER SUCH LIABILITY IS BASED ON ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE LESSER OF TEN THOUSAND DOLLARS ($10,000.00) OR THE FEES RECEIVED BY BOTSI FROM THE SUBSCRIBER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Exclusions. Section 10.2 will not apply to: (i) breaches of Sections 2.1 or 5; (ii) intentional misconduct or gross negligence; or (iii) the indemnification obligations under Section 9.
11. Miscellaneous.
11.1 No Third Party Beneficiaries. Except that the Indemnified Parties are intended Third Party beneficiaries of Section 9 (and entitled to enforce solely those terms as they specifically apply to them), these Terms of Service is for the sole benefit of the Parties and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of these Terms of Service.
11.2 Assignment. The Subscriber may not assign this Agreement or any of its rights or obligations hereunder to any other Person without the prior written consent of Botsi. Botsi may assign this Agreement to any affiliate or subsidiary or any successor in interest, whether by the sale of substantially all its assets or by merger or otherwise, without the consent of, or prior notice to, the Subscriber. Any attempted assignment in violation hereof will be voidable at the sole discretion of Botsi.
11.3 Notices. We may deliver any notice required or permitted hereunder (i) via a notice appearing in your Account or on the Platform or (ii) via electronic mail to your contact information on record with us in your Account information, which notice will be deemed received by you when posted or transmitted by us. Where we permit notices to be given to us via a feature or functionality of the Platform (for example, changes to your Account or billing information), you may give such notice through such feature or functionality and it will be deemed effective upon actual receipt by us, but only to the extent the notice is of a type for which the feature or functionality is intended to convey. Otherwise, all notices to us under these Terms of Service (including notices of claims or disputes or to initiate arbitration) must be delivered in writing in hard-copy (paper) to us by (i) personal delivery by hand, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) reputable national or international mail courier with proof of delivery, or by email to the email address set forth below. Our current address is:
Botsi Inc.
Attn: Terms Notices
[Insert Address]
[Insert Address]
Email: [Insert Email Address]
We may change this notice address by updating these Terms of Service or by listing a new mailing address or email address on our website, at botsi.com. You are responsible for making sure that you are sending notices to our most current mailing address and email address. Notices given to our address, whether mailing or email address, will be deemed effective upon the first normal business day (non-weekend/non-holiday) following actual receipt by us at such address. THIS SECTION WILL SURVIVE TERMINATION OF THESE TERMS of SERVICE FOR ANY REASON.
11.4 Interpretation. For purposes of these Terms of Service: (a) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to these Terms of Service as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms of Service: (i) to sections, exhibits, attachments, and appendices mean the sections of, and exhibits, attachments, and appendices attached to, these Terms of Service; (ii) to an agreement, instrument or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend these Terms of Service to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of these Terms of Service to the same extent as if they were set forth verbatim herein. The headings in these Terms of Service are for reference only and do not affect the interpretation of these Terms of Service.
11.5 Severability. If any provision of these Terms of Service is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not impact any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms of Service so as to implement the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.6 Amendment and Modification. Botsi may update these Terms of Service, at its sole discretion, by publication of such update on the Platform or otherwise notifying the Subscriber thereof.
12.7 No Waiver. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms of Service, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms of Service will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.8 Governing Law; Submission to Jurisdiction. These Terms of Service are governed by and construed in accordance with the internal Law of the State of Delaware (US) without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Law of any jurisdiction other than those of the State of Delaware (US). Any legal suit, action, or proceeding arising out of, or related to, these Terms of Service or the licenses granted hereunder must be instituted exclusively in the Federal courts of the United States or the courts of the State of Georgia (US), and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
11.9 Disputes; Arbitration. Any legal action or dispute arising out of or in connection with or relating to these Terms of Service or its subject matter, upon the request of any Party involved, shall be submitted to, and settled by, arbitration, before one (1) arbitrator, by remote means if available, or if not available, in Atlanta, Georgia (US), in accordance with its then current general comprehensive Arbitration Rules and Procedures (available at https://www.jamsadr.com/rules-comprehensive-arbitration/). The arbitrator shall determine arbitrability. Each Party will bear their own fees and expenses with respect to any arbitration. The arbitrator shall apply the applicable substantive law in deciding the actions at issue. Actions shall be governed by their applicable statute of limitations and failure to demand arbitration within the prescribed time period shall bar the actions as provided by Law. The decision or award of the arbitrator shall be final and binding upon the Parties. In the event that any portion of this arbitration agreement is held to be invalid or unenforceable, any such provision shall be severed, and the remainder of this arbitration agreement will be given full force and effect. By signing these Terms of Service, each Party acknowledges and agrees that it has read this arbitration agreement carefully and is bound by it.
11.10 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION OR DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER.
11.11 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, additionally in the case of the Subscriber, 2.1, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Botsi may further install and utilize disabling devices to restrict access to the Platform. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
11.12 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to these Terms of Service, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
11.13 Entire Agreement. These Terms of Service, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms of Service and use of the Platform and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
11.14 Government Subscribers. If Subscriber is a U.S. government entity, or these Terms of Service otherwise becomes subject to the Federal Acquisition Regulations (FAR), Subscriber acknowledges that the Platform constitutes “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Platform shall be as provided in these Terms of Service. If a government agency needs additional rights, it must negotiate a mutually acceptable signed written addendum to these Terms of Service specifically granting those rights.
EXHIBIT A
Definitions
“Access Credentials” means any Subscribername, identification number, password, facial recognition, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Platform.
“Affiliates” means an entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding.
“Connected Application” means the Subscriber’s or a Third Party’s web-based, mobile, or other software application that is made available by the Subscriber.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any: (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data processed thereby; or (b) prevent any Person from accessing or using the Platform as intended by these Terms of Service (except in order to comply with applicable Law and to comply with and enforce the terms of these Terms of Service and that Botsi further install and utilize disabling devices to restrict access to the Platform to enforce the terms of these Terms of Service and any restrictions the Subscriber may have otherwise agreed.
“Intellectual Property Rights” means all rights arising from or relating to: (a) patents and patentable subject matter; (b) trademarks, service marks and other trademarkable subject matter; (c) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, know-how, general knowledge, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial rights, intellectual property rights and other rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Law of any jurisdiction throughout in any part of the world, including all property protected by such rights.
“Law” means, with respect to any Person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority or self-regulatory organization applicable to such Person.
“Person” means any individual, corporation, partnership, trust, unincorporated association, business, or other legal entity, and any government or any governmental agency or political subdivision thereof.
“Personal Data” shall mean all information relating to an individual that identifies such individual or could reasonably be used to identify such individual, including, any information that is deemed “personal information” or “personal data” as defined by applicable data protection Laws.
“Platform” means the Botsi subscription platform, and such accompanying services and features provided or available to the Subscriber through such Platform, as further provided via a subscription thereto and detailed in an Order Form.
“Sensitive Data” shall mean any Personal Data that requires a heightened degree of protection by applicable Law, including social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, CVVs, credit report information or other personal financial information, health or medical information, or other information that is subject to applicable Laws now or hereafter enacted requiring heightened standards for data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act, and the Gramm-Leach-Bliley Act.
“Subscriber Data” means any data, documents, information, code, content, materials, writings, or anything of a similar nature, that is uploaded, posted, published, transmitted, stored, or otherwise made available through or connected to the Subscriber’s use of the Platform.
“Third Party” means any Person who is not Botsi or the Subscriber.
[End of Exhibit A]
[End of Terms of Service]
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