Terms of Service

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.

(a) The Subscriber shall not and shall not permit any other Person to:

1. License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit the License or any other rights to access or use the Platform;
2. 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;
3. 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;
4. 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;
5. 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;
6. 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
7. Use the Platform in a way that: (1) contravenes or violates applicable Law; or (2) otherwise fails to comply with these Terms of Service.

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.

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.

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.

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.

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.

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). 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.

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.

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; 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.

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 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.

The Subscriber acknowledges and agrees that data derived from the Subscriber Data or the Subscriber’s use of the Platform generally, 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 Data 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.

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 (“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. 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.

Botsi has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Subscriber Data. 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.

(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, the Subscriber acknowledges that the Platform and its services and features are not intended for the processing 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 any Subscriber Data of individuals under the age of thirteen (13) unless the Subscriber has fully complied with all requirements of COPPA. Botsi reserves the right to delete or block the use or processing of any Subscriber Data that it reasonably believes may violate this Section 3.6.

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 will be owned exclusively by Botsi.

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.

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.

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. The Subscriber’s Confidential Information includes Subscriber Data.

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 to Third Parties, except to the Recipient’s own Personnel who have a legitimate need to know such Confidential Information.

The confidentiality obligations will not apply to any information that the Recipient can document: (a) is or becomes generally available to the public; (b) was in its possession 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.

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.

Botsi will retain and upon request make available to the Subscriber any Subscriber Data stored on the Platform. 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 (the “Holding Period”). Following the Holding Period, Botsi may delete all Subscriber Data in its possession.

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 compliance; provided that all such Confidential Information retained will remain subject to the protections set forth herein.

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.

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; provided, that, in no event will the Subscriber be responsible for any taxes imposed on Botsi’s income, revenues, gross receipts, or personnel.

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 will initially be due and payable on or before the Subscription Start Date and subsequently, on the same day of the following month, quarter, or year, as applicable.

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.

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 additionally bear interest at the lesser of one and one-half percent (1.5%) per month or the highest rate permitted under applicable law. The Subscriber shall also reimburse Botsi for all reasonable costs incurred in collecting any late payments, including attorneys’ fees. 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.

Botsi may, in its sole discretion, amend its Subscription Fees and pricing structure. 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. Changes to Subscription Fees due will take effect only upon the renewal of a Subscription 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 for successive additional one (1) year terms, 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 under Section 7.3.

The License will commence on the Subscription Start Date set forth in the corresponding Order Form and will continue for the period prescribed in the Order Form with automatic renewal for consecutive periods of equal length, unless either Party provides notice of non-renewal at least sixty (60) days prior to the end of the then current term.

(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 written notice of such breach.

(b) Either Party may terminate this Agreement if the other Party: (i) becomes insolvent or is generally unable to pay its debts as they become due; (ii) files or has filed against it a petition for bankruptcy; (iii) makes a general assignment for the benefit of its creditors; or (iv) has appointed a receiver, trustee, custodian, or similar agent.

(c) Botsi may further terminate this Agreement if: (i) Botsi reasonably determines that further provision of the Platform would be in contravention of any applicable Law; or (ii) if any failure in payment continues for more than fifteen (15) days after notice.

(a) Upon any expiration or termination, the License and all other licenses granted to the Subscriber will expire and the Subscriber shall immediately cease all access and use of the Platform.

(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.

Every provision of this Agreement that, by its nature, should survive termination or expiration will survive, including provisions regarding Confidential Information, Intellectual Property Rights, payment obligations, indemnification, limitation of liability, and interpretation.

The Subscriber will defend, indemnify, and hold harmless Botsi and its affiliates and their respective directors, officers, employees, and agents from and against any and all Losses arising from Claims alleging: (i) the negligence, unlawful conduct or intentional misconduct of the Subscriber; (ii) a breach by the Subscriber of Section 2, Section 3, or Section 5.

The Indemnified Party shall provide the Indemnifying Party with: (i) prompt written notice of the Claim; (ii) sole control of the defense and settlement; and (iii) cooperation as reasonably requested at the Indemnifying Party’s expense.

In no event shall either Party be liable for lost profits or revenue, loss of goodwill, or any indirect, special, incidental, exemplary or consequential damages in connection with these Terms of Service, regardless of whether such damages were foreseeable.

The maximum aggregate liability of Botsi 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.

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.

These Terms of Service are for the sole benefit of the Parties and their respective permitted successors and assigns. Nothing herein is intended to confer upon any other Person any legal or equitable right, benefit, or remedy.

The Subscriber may not assign this Agreement without the prior written consent of Botsi. Botsi may assign this Agreement to any affiliate, subsidiary, or successor in interest without consent of the Subscriber.

We may deliver notices via your Account, the Platform, or electronic mail. All notices to us must be delivered in writing to:

For purposes of these Terms of Service: (a) “include”, “includes”, and “including” are deemed to be followed by “without limitation”; (b) the word “or” is not exclusive; (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa.

If any provision is invalid, illegal, or unenforceable, such invalidity will not impact any other term or provision. The Parties shall negotiate in good faith to modify these Terms of Service to implement the original intent as closely as possible.

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.

No waiver by any Party is effective unless explicitly set forth in writing. No failure to exercise any right will operate as a waiver thereof.

These Terms of Service are governed by the internal Law of the State of Delaware (US). Any legal suit, action, or proceeding must be instituted exclusively in the Federal courts of the United States or the courts of the State of Georgia (US).

Any legal action or dispute arising out of these Terms of Service, upon the request of any Party, shall be submitted to arbitration before one (1) arbitrator, in Atlanta, Georgia (US), in accordance with JAMS Comprehensive Arbitration Rules and Procedures. The decision or award of the arbitrator shall be final and binding.

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.

Each Party acknowledges that a breach of Section 5 or Section 2.1 would cause irreparable harm for which monetary damages would not be an adequate remedy, and agrees that the other Party will be entitled to equitable relief, including injunction and specific performance, without any requirement to post a bond.

In the event of any legal proceeding, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.

These Terms of Service constitute the sole and entire agreement of the Parties with respect to the subject matter and supersede all prior and contemporaneous understandings, agreements, representations, and warranties.

If Subscriber is a U.S. government entity, Subscriber acknowledges that the Platform constitutes “commercial computer software” as defined in FAR 12.212, DFARS 252.227-7014 and DFARS 227.7202. The rights of the U.S. Government shall be as provided in these Terms of Service.