Terms of Service
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This Customer Agreement (together with any schedules or exhibits hereto, the “Agreement”) is made by and between East River Source Control, Inc. (“Company”) and [insert Customer entity name] (“Customer”) (each of Company and Customer, a “Party” and collectively, the “Parties”).
1. DEFINITIONS
Capitalized terms will have the meanings set forth in this section, or in the section where they are first used.
1.1 “Authorized User” means Customer and Customer’s affiliates’ employees and independent contractors who are authorized by Customer to access the Company Solution pursuant to Customer’s rights under this Agreement.
1.2 “Customer Data” means any data and information provided or submitted by Customer or its Authorized Users in connection with the Services or use of the Company Solution. Customer Data also includes any analysis, reports or other output provided to Customer by the Company Solution that is based on Customer Data.
1.3 “Documentation” means the user documentation and requirements provided by Company that relate to the use of the Company Solution, as may be updated from time to time.
1.4 “Order Form” means the document pursuant to which Customer purchases Services from Company, and is executed by both Parties with reference to this Agreement or is otherwise attached to this Agreement as an exhibit.
1.5 “Professional Services” means any implementation, integration or other professional services provided by Company to Customer.
1.6 “Company Solution” means Company’s technology platform and offering set forth in the applicable Order Form, including Company’s related software, technology, algorithms, tools, and interfaces and related Documentation.
1.7 “Services” means the services provided by Company to Customer under this Agreement as described in an Order Form, including, but not limited to, provision of access to those features or components of the Company Solution set forth in such Order Form and, if applicable, (a) provide an object-code version of any software indicated as “On-Premises Software” or (b) any Professional Services.
2. PROVISION OF SERVICES
2.1 Order Form; Access
Subject to the terms and conditions of this Agreement, Company will provide the Services set forth in an Order Form, in accordance with the Documentation. The initial Order Form is attached hereto as Exhibit A.
2.2 License Grant
Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, worldwide, non-sublicensable, non-transferable (except as permitted under Section 9.6) license to, in all instances solely for Customer’s own internal business purpose, (a) use and access (on a remotely hosted basis) the Company Solution in connection with the Services, (b) if any aspect of the Company Solution is expressly indicated on an Order Form as intended for “On-Premises Software,” to download, install, execute and use such software, and (c) use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s authorized use of the Company Solution.
2.3 Authorized Users
Customer may permit only Authorized Users to access and use the Company Solution under this Agreement. Customer is responsible for managing its Authorized Users’ access to the Company Solution, including control over any passwords and related security measures, and by immediately notifying Company if someone’s status as an Authorized User has ceased or otherwise should be revoked. Customer will prevent unauthorized access to, or use of, the Company Solution and will notify Company promptly of any such unauthorized use known to Customer.
2.4 Restrictions; Responsibilities
The Company Solution, together with any intellectual property rights therein, are the exclusive property of Company. Customer will not, and will not permit any Authorized User or other party to: (a) sell, resell, rent, loan, license, distribute, or otherwise use or allow the use of the Company Solution for the benefit of any unauthorized third party; (b) modify or make derivative works based on the Company Solution; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code of the Company Solution; (d) access or use the Company Solution to build, improve or enhance a similar or competitive product or service; (e) input any aspect of the Company Solution into any artificial intelligence model, or otherwise use the Company Solution to train any model or algorithms; nor (f) interfere in any manner with the operation of the Company Solution or the hardware and network used to operate the Company Solution. Nothing in this Section 2.4 prohibits Customer or its Authorized Users from using generally available artificial intelligence tools in the ordinary course of using the Company Solution, provided that neither Customer nor any Authorized User uses the Company Solution, the Documentation, or their access to them to train, fine-tune, or improve any model.
2.5 Feedback & Aggregate Data
To the extent that Customer or its Authorized Users provide any suggestions, enhancement requests, recommendations or other feedback related to the Company’s products or services, Company may freely use and incorporate them in its discretion without restriction or obligation to Customer, although Company will not identify Customer as the source of any such feedback. In addition, Company may use and share aggregated and anonymized data generated through the use of the Company Solution, together with comparable data of other clients, to improve its offerings and otherwise in a manner that illustrates the broad-based adoption, use and effectiveness of the Company Solution without revealing any Confidential Information of Customer. Where the Company Solution is deployed as On-Premises Software, the software may transmit data to Company solely to confirm and verify the proper functioning of the software and Customer’s compliance with this Agreement; provided that any such data shall be aggregated and anonymized and shall not contain any Customer Data.
2.6 Customer Data
Customer Data belongs exclusively to Customer. Customer is solely responsible for the accuracy of any Customer Data and for obtaining all necessary licenses, permissions, or consents necessary to provide the Customer Data in connection with this Agreement or to otherwise use Customer Data in connection with the Services. This includes ensuring that all necessary rights have been obtained before using the Services to communicate directly with Customer’s own clients, subscribers, or other end users.
3. PAYMENTS
3.1 Fees & Payments
Customer agrees to pay the fees set forth in an Order Form (“Fees”). Except as otherwise provided in an Order Form, all Fees are billed at the end of each month, and due and payable within thirty (30) days of the date of the invoice. Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. Company reserves the right (in addition to any other rights or remedies Company may have) to suspend access to the Company Solution if any Fees are more than thirty (30) days overdue until such amounts are paid in full.
3.2 Taxes
The Fees are exclusive of applicable sales, use, value-added and other taxes, assessments or other similar charges, and Customer will be responsible for payment of such taxes (other than taxes based on Company’s income, employees, or property) arising from the payment of the Fees, the provision of the Services, or the license of the Company Solution to Customer.
4. CONFIDENTIALITY
4.1 Confidential Information
“Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or reasonably should have known is the confidential or proprietary information of the Disclosing Party. For the avoidance of doubt, Customer Data will be considered Confidential Information of Customer and the Company Solution will be considered Confidential Information of Company.
4.2 Protection of Confidential Information
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. Company may provide information to third party AI platforms and models in connection with the Services pursuant to “enterprise level” terms that bind such AI providers to confidentiality obligations and to refrain from training their model using any provided information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
4.3 Exceptions
The confidentiality obligations set forth in Section 4.2 will not apply to any information that (a) is at the time of disclosure or thereafter becomes generally available to the public or otherwise part of the public domain through no fault of the Receiving Party; (b) is provided to the Receiving Party by a third party (without breaching confidentiality obligations to the Disclosing Party); (c) was already known to the Receiving Party at the time of disclosure; or (d) was independently developed without use of the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order and provided further that the Receiving Party limits the disclosure of such Confidential Information to the maximum extent possible under guidance from legal counsel and attempts to obtain treatment of such information as confidential.
5. TERM AND TERMINATION
5.1 Term
This Agreement will begin on the Effective Date and, except as may be expressly provided in an Order Form, shall continue in full force and effect for one (1) year (the “Initial Term”), and will automatically renew for successive one (1) year terms (each, a “Renewal Term”), unless either Party gives at least thirty (30) days’ written notice of non-renewal prior to the commencement of any Renewal Term, subject to earlier termination in accordance with the Agreement (collectively, the “Term”).
5.2 Termination for Breach
Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
5.3 Effect of Termination
Upon termination or expiration of this Agreement: (a) Customer’s use of and license and rights to the Services and Company Solution, including any obligations upon Company pursuant to an Order Form, shall cease; (b) Customer shall discontinue all use of (and, as applicable, erase all copies of) the Company Solution; (c) each Party shall delete any other Confidential Information belonging to the other Party that was received pursuant to this Agreement (provided that back-up copies archived in the ordinary course of business shall be deleted pursuant to such Party’s standard procedures); and (d) any unpaid amounts owed to Company under this Agreement will be due and payable. Sections 2.4, 2.5, 3, 4, 5.3, and 6 to 9 will survive expiration or termination of this Agreement.
6. WARRANTIES AND DISCLAIMERS
6.1 Mutual Warranties
Each Party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; (iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and (iv) it will comply with all applicable laws and regulations in connection with its performance of its obligations and exercise of its rights under this Agreement.
6.2 Company Warranties
Company represents and warrants that it will provide the Services under this Agreement in material conformity to the Documentation and Order Form.
6.3 Disclaimers
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND THE COMPANY SOLUTION ARE PROVIDED “AS IS,” AND COMPANY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY HEREBY DISCLAIMS ALL LIABILITY IN CONNECTION WITH THIRD-PARTY PROVIDERS, INCLUDING WITHOUT LIMITATION THIRD-PARTY CLOUD SERVICE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES COMPANY GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICES. CUSTOMER UNDERSTANDS THAT THE COMPANY SOLUTION USES ARTIFICIAL INTELLIGENCE TECHNOLOGIES THAT CAN MAKE MISTAKES. CUSTOMER IS RESPONSIBLE FOR USING INDEPENDENT JUDGMENT AND REVIEW BY CUSTOMER’S PERSONNEL PRIOR TO USING OR RELYING ON THE RESULTS FROM ANY USE OF THE SERVICES OR THE COMPANY SOLUTION. FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND.
7. INDEMNIFICATION
7.1 By Company
Company will defend at its expense any claim, action or suit brought against Customer (including reimbursement of Customer’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Company Solution infringes such third party’s intellectual property rights, including without limitation patents, copyrights or trade secret rights. Notwithstanding the foregoing, Company will have no obligation under this section or otherwise to the extent an infringement claim is based upon (i) Customer’s breach of this Agreement; (ii) any use of the Services in combination with other products, services, software or data not supplied by Company; or (iii) Customer Data.
7.2 By Customer
Customer will defend at its expense any claim, action or suit brought against Company (including reimbursement of Company’s reasonable legal or expert fees or related litigation costs), and will pay any settlement Customer makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim, action or suit by any third party alleging that the Customer Data infringes such third party’s intellectual property rights or alleging that Customer breached Section 2.6. Notwithstanding the foregoing, Customer will have no obligation under this section or otherwise to the extent an infringement claim is based upon Company’s breach of this Agreement.
7.3 Procedure
The indemnifying party’s (the “Indemnifying Party”) obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party (the “Indemnified Party”) will promptly notify the Indemnifying Party in writing of any threatened or actual claim or suit (provided that the indemnity obligation is only limited to the extent the delay of notice materially prejudices the claim or suit); (b) the Indemnifying Party will have sole control of the defense or settlement of any claim or suit; and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party to facilitate the settlement or defense of any claim or suit, at the Indemnifying Party’s sole cost and expense. Further, any settlement of the claim that requires monetary contribution or admission of fault or liability by the Indemnified Party requires the Indemnified Party’s prior written consent.
8. LIMITATION OF LIABILITY
8.1 Types of Damages
EXCEPT FOR AMOUNTS OWED TO A THIRD PARTY PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Amount of Damages
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF A PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE TO COMPANY IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
8.3 Basis of the Bargain
The Parties agree that the limitations of liability set forth in this Section 8 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the Parties.
9. MISCELLANEOUS
9.1 Marketing
Company may identify Customer as a client in its marketing materials, unless Customer notifies Company that it wishes Company to cease such practice.
9.2 Entire Agreement
This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Company.
9.3 Governing Law and Venue
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts of New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
9.4 Severability
If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
9.5 Waiver
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.6 No Assignment
Neither Party will assign or otherwise transfer this Agreement, or its rights herein, without obtaining the prior written consent of the other Party; provided, however, that either Party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets without any consent of the other Party. The terms of this Agreement will be binding upon the Parties and their respective successors and permitted assigns.
9.7 Force Majeure
Any delay in the performance of any duties or obligations of either Party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by an event beyond the reasonable control of such Party and may include labor strikes, fire, earthquake, internet failures, flood, pandemic or epidemic, provided that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.
9.8 Independent Contractors
Customer’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other. A Party will not have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
9.9 Notices
All notices required or permitted under this Agreement must be delivered in writing, if to Company, by emailing contact@ersc.io, and if to Customer by emailing [insert], provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other Party by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notices in writing may be sent to Company at 852 Metropolitan Avenue Apartment 2A Brooklyn, New York, NY 11211, and to Customer at [insert physical address]. Each Party may change its email address and/or address for receipt of notice by giving notice to the other Party.
9.10 Export
Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
9.11 Counterparts
This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.