This Master Services Agreement (“Agreement”) is entered into by People.ai, Inc. (“People.ai”), a Delaware corporation and the entity listed as the customer on the applicable Order Form (“Customer”) as of the Effective Date (as defined below). This Agreement will be effective on the date Customer enters into an Order Form or other ordering document referencing this Agreement (the “Effective Date”).
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Provision of Services
- Provision of Service and Access Credentials. People.ai will make the Services available to Customer pursuant to this Agreement and all Order Forms during the Term. Access to the Services may be provided to Customer based on the number of Users, or some other metric, as specified in the applicable Order Form. All access and use of the Services by Users will be through a third-party identity provider that is compatible with the Services. Customer is responsible for the provisioning, use, and configuration of the third-party identity provider.
- Customer Affiliates. Customer may also permit its Affiliates and their employees and contractors working for the benefit of Customer or such Affiliates to serve as Users, provided Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement. Alternatively, Customer Affiliates may purchase Subscriptions and Professional Services by executing Order Forms or Statements of Work hereunder that references the terms of this Agreement, and in each such case, all references in this Agreement to Customer will be deemed to refer to such Customer Affiliate for purposes of such Order or Statements of Work and such Affiliates will be responsible for their compliance with the terms of this Agreement.
- Service Levels and Support Services. People.ai will use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit A. People.ai will also provide Support Services to Customer in accordance with People.ai’s service support schedule set out in Exhibit A.
- Customer Responsibilities. Customer is responsible and liable for: (a) all access to and use of the Services and People.ai Materials directly or indirectly by or through the Customer Systems or its or its Users’ Access Credentials; (b) the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Data; (c) using commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and Users’ Access Credentials, and notifying People.ai promptly of any such unauthorized access or use; (d) complying with all applicable laws in using the Services.
- Customer Systems. Customer’s right to use Customer Systems is governed by the terms and conditions established by each Customer Systems’ provider with Customer directly.
- Remedies. People.ai may temporarily suspend Customer’s (including Users’) access to the Services if People.ai reasonably determines that: (i) there is, or there is reasonably likely to be, a threat on the People.ai Materials caused by Customer; (ii) Customer’s use of the People.ai Materials disrupts or poses a security risk to the People.ai Materials or to any other customer or vendor of People.ai; (iii) Customer, or any User, is using the People.ai Materials for fraudulent or illegal activities; (iv) in accordance with Section 4.6(a) (any such suspension will be considered a “Service Suspension”). If Customer (including Users) is using the Service in a manner that, in People.ai’s reasonable judgment, causes or is likely to cause significant harm to People.ai or the Service or otherwise threatens the security, integrity or availability of the Service, then People.ai may suspend Customer’s access to the Service. People.ai will use commercially reasonable efforts under the circumstances of such suspension to (x) provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) limit the suspension to only Users involved in the activities in question; and (z) remove the suspension as quickly as practicable after the circumstances leading to the suspension have been resolved.
3. Information Security
- People.ai System and Security Obligations. People.ai will (i) comply with all Laws in providing the Services and Professional Services; (ii) People.ai will employ reasonable security measures to protect Customer Data in accordance with People.ai’s information security policy as amended by People.ai from time to time (the “Information Security Policy”). Such Information Security Policy will state administrative, physical, and technical safeguards designed to protect Customer Data from unauthorized access, acquisition, or disclosure, destruction, alteration, accidental loss, misuse, or damage that are no less rigorous than generally accepted industry practices and will ensure that all such safeguards comply with data protection and privacy Laws, as well as the terms and conditions of this Agreement. At a minimum, People.ai’s safeguards for the protection of Customer Data will include: (a) limiting access of Customer Data to Customer and People.ai’s authorized personnel; (b) securing business facilities, data centers, paper files, servers, backup systems, and computing equipment, including, but not limited to, all mobile devices and other equipment with information storage capability; (c) implementing network, application, database, and platform security; (d) securing information transmission, storage, and disposal; (e) implementing authentication and access controls within media, applications, operating systems, and equipment; (f) encrypting Customer Data transmitted over public or wireless networks; (g) conducting risk assessments, penetration testing, and vulnerability scans and promptly implementing, at People.ai’s sole cost and expense, a corrective action plan to correct any issues that are reported as a result of the testing; (h) implementing appropriate personnel security and integrity procedures and practices, including, but not limited to, conducting background checks consistent with applicable law; and (i) providing appropriate privacy and information security training to People.ai’s employees.
- Data Protection Agreement. If Customer’s use of the Services involves processing personal data pursuant to Regulation 2016/679 (the “GDPR”) and/or transferring personally identifiable information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for such information or applicable regulations, the terms of the Data Processing Agreement (“DPA”) located at https://www.people.ai/dpa or separately executed DPA will apply.
- Fees. Customer will pay the fees specified in a Statement of Work or Order Form (“Fees”). Fees for the Services are based on Subscriptions purchased during the Term and not actual usage. All Fees are non-refundable, except as may be expressly set forth in this Agreement. Customer will make all payments hereunder in US dollars.
- Invoicing and Payment. Except as otherwise specified in any Order Form or Statement of Work, all fees and charges under this Agreement will be invoiced in advance and are due net thirty (30) days from the date of Customer’s receipt of an undisputed the invoice.
- User Re-assignment. Customer may reassign Subscriptions from time to time to new Users who replace former Users who no longer use or need access to the Service. Customer, however, may not allow more than one individual User to use or otherwise share a single Subscription.
- Adding Users. Users that are given administrative permission by Customer may add new Users at any time through the Service. Upon adding additional User(s), Provider will contact Customer in writing to discuss Customer’s options. Customer will have thirty (30) days after receipt of People.ai’s written notice to Customer regarding the over-deployment to either (a) purchase a pro-rata subscription for such User(s) at the same price stated on the applicable, then-current Order Form by executing a new Order Form with People.ai, or (b) discontinue use of the over-deployed User seats. If, within such thirty (30) day period, Customer does not either execute a new Order Form for such additional Users or discontinue use of over-deployed User seats, Customer will be invoiced the current list price for those Users for the remainder of the then-current Subscription Period and be required to pay such invoices in accordance with this Agreement. As People.ai is a subscription services provider, the number of Users purchased under an Order Form cannot be decreased during the term of such Order Form.
- Fees for Third-Party Services. Customer is responsible for all fees charged by its Customer Third-Party Services.
- Failure to Pay. If Customer fails to pay any undisputed invoices in accordance with this section, People.ai may, provided that People.ai gives Customer written notice of such non-payment and ten (10) days from the date of such notice to remit the overdue, undisputed amounts in full: (a) suspend Customer’s access to the Service pending payment of such overdue invoices; and (b) charge a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes that People.ai has billed Customer incorrectly, Customer must contact People.ai no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, to receive an adjustment or credit. Once People.ai receives notice of a disputed invoice, People.ai will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If People.ai reasonably determines that the amounts charged on a disputed invoice are, in fact, due, Customer will pay such amounts within ten (10) days of People.ai notifying Customer in writing of such decision.
- Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on People.ai’s income, personnel, property, or other assets, or similar taxes not directly based on Customer’s use or consumption of People.ai’s products and services.
- Subscriptions Through Resellers. If Customer purchases Subscriptions through a resale partner authorized by People.ai to resell such Subscriptions (“Reseller”), Customer will make all payments in accordance with the Order Form with the Reseller or People.ai. Reseller may offer different prices or different or additional terms and conditions for use of the Services than made available by People.ai. Any such different or additional terms and conditions (including any additional warranties) are between Customer and Reseller and People.ai assumes no responsibility for such terms. Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Order Form, People.ai will have the right to suspend Customer’s right to use and access the Service and to terminate this Agreement upon notice to Customer.”
5. Proprietary Rights
- Access to Services. Subject to the terms and conditions of this Agreement, People.ai hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13.8 and Section 4.3) right to access and use the Services during the Term, solely for use by Users; such use is limited to Customer’s internal use.
- Documentation License. Subject to the terms and conditions contained in this Agreement, People.ai hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Service.
- Use Restrictions. Customer will not use the Services for any purposes beyond the scope of the access granted in this Agreement. Except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly, and will not permit any Users to: (a) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (d) remove any proprietary notices from the Services or Documentation; or (e) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
- Customer Data. As between People.ai and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to People.ai a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as needed for People.ai to: (a) provide the Services; (b) improve and modify the Services (including for training or retraining artificial intelligence models); (c) to aggregate information regarding the Customer Data and Customer’s use of the Services; and (d) conduct research for developing new services.
- People.ai Intellectual Property. People.ai owns all right, title, and interest, including all Intellectual Property Rights, in and to the People.ai Materials and in and to all of People.ai’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to Customer by People.ai in providing the Services or the Professional Services to Customer. No implied licenses are granted under this Agreement.
- Output. Customer and People.ai agree and acknowledge that People.ai’s provision of the Services may include the creation of Output. To the extent the Services provided to Customer include the creation of Output, Customer hereby grants to People.ai a non-exclusive, irrevocable, royalty-free, worldwide license during the Term to reproduce, distribute, modify, and otherwise use and display Customer Data as necessary or useful to create such Output and People.ai hereby grants to Customer a non-exclusive, perpetual, irrevocable, fully paid-up, worldwide license to reproduce, distribute, modify, and otherwise use the Output as provided by the Services. Customer acknowledges that, as between Customer and People.ai, People.ai owns all right, title, and interest, including all Intellectual Property Rights, in and to the Output.
- Service and Model Data. As Customer (including its Users) interacts with the Services, the Services (i) collect data pertaining to the performance of the Services and measures of the operation of the Services (“Service Data”) and (ii) process Customer Data by artificial intelligence and other algorithms to create artificial intelligence models (“Model Data”). Notwithstanding anything else to the contrary herein, provided that the Service Data is aggregated and anonymized, the parties agree that People.ai is free to use the Service Data in any manner. Model Data does not identify Customer or Customer Data. Customer acknowledges that, as between Customer and People.ai, People.ai owns all right, title, and interest, including all Intellectual Property Rights, in and to the Model Data.
- Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to People.ai specifically with respect to the Services (“Feedback”). People.ai agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer grants People.ai a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
- Confidential Information. In connection with this Services provided hereunder, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party designated as confidential or that reasonably should be understood to be confidential given the nature of the information disclosed or the circumstances of disclosure, including proprietary technology, trade secrets, business and marketing plans, business processes, and technical information. Without limiting the foregoing, the People.ai Materials and People.ai’s security information, audits or reports, are and will remain the Confidential Information of People.ai.
- Exclusions to Confidential Information. Confidential Information does not include information that: (a) is or becomes generally available to the public, (b) was known to the Receiving Party prior its disclosure by the Disclosing Party, (c) is received from a third party without a breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
- Obligations of Confidentiality. During the Term and for a period of two (2) years thereafter, the Receiving Party will (a) not use the Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (b) except as may be permitted by and subject to its compliance with Section 6.4 (Compelled Disclosure), not disclose or permit access to Confidential Information other than to its personnel, auditors, accountants, attorneys or advisors who are subject to confidentiality obligations just as protective of the Confidential Information as the terms of this Agreement; or (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information but in no event less than a reasonable standard of care.
- Compelled Disclosure. The Receiving Party may disclose the Confidential Information under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, provided that the Receiving Party will first provide the Disclosing Party with: (a) prompt written notice of such requirement so that the Disclosing Party may seek, at its cost and expense, a protective order or other remedy; or (b) reasonable assistance, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order if the Disclosing Party wishes to contest the disclosure.
7. Warranty And Warranty Disclaimer
- Mutual Representations, Warranties, and Covenants. Each party represents, warrants, and covenants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
- People.ai Warranties. People.ai represents, warrants, and covenants to Customer that, subject to Customer’s and its Users’ compliance with the terms of this Agreement: (i) it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Services will perform materially in accordance with the applicable Documentation under normal use and circumstances, and People.ai will not materially decrease the overall functionality of the Services; (iii) it will perform all Professional Services in a professional and workmanlike manner; (iv) it owns or otherwise has sufficient rights in the Services to grant to Customer the rights to use the Services granted herein; (v) it has used commercially reasonable efforts to ensure that the software underlying the Services and the environment used for the Services contain no Malicious Code. For purposes of the Agreement, “Malicious Code” means any virus, worm, logic bomb or any other code designed to contaminate other computer programs or computer data, consume computer resources, modify, destroy, record, or transmit data in a manner not intended by the computer, system or network, or in some other fashion disrupt the normal operation of a computer, system or network.
- Customer Warranties. Customer represents, warrants, and covenants to People.ai that: (a) Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by People.ai and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law, including any Law relating to data privacy, data protection, or data security of Personal Information; (b) Customer’s provision of Customer Data to People.ai will not violate Customer’s own applicable privacy policies and/or privacy notices; (c) the execution, delivery, and performance of this Agreement by People.ai in accordance with the terms and conditions herein will not violate, conflict with, require consent under, or result in any breach or default under any material contract or agreement to which Customer is a party (including any agreement for Third-Party Services) and Customer is, and will remain, in material compliance with any terms and conditions in any such agreements; and (d) Customer has all necessary rights and consents relating to the use of the Services with Third-Party Services, including all necessary rights and consents required to permit the Services to integrate with, and transfer information from or to, such Third-Party Services.
- Remedies for Breach of Warranty. If People.ai breaches the warranties in Section 7.2(i) or 7.2(ii) (provided that the breach is not caused by the combination of the Services with any services, hardware, connection, interface, data or business processes not provided by People.ai) Customer will provide People.ai with notice of such breach and People.ai will correct such breach so that the Services conforms to the Documentation as required above, and if People.ai is unable to provide such Services as warranted within a commercially reasonable time or another time period agreed upon by the parties in writing, Customer will be entitled to terminate the applicable Subscription and receive a pro-rated refund of any prepaid fees applicable to the remaining portion of the Term. If People.ai breaches the warranties in Section 7.2(iii), Customer will provide written notice of breach and People.ai will re-perform the applicable Professional Services. If People.ai determines that it is unable to reperform such Professional Services as warranted within a commercially reasonable time or other time agreed upon by the parties in writing, then Customer will be entitled to terminate the applicable Statements of Work and recover the portion of the fees paid for such non-conforming Professional Services. The forgoing remedies are People.ai’s sole liability and Customer’s sole remedy in the event of People.ai’s breach of Sections 7.2(i), (ii), or (iii).
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES STATED IN SECTIONS 7.1 AND SECTION 7.2, THE PEOPLE.AI MATERIALS ARE PROVIDED “AS IS” AND PEOPLE.AI HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PEOPLE.AI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTIONS 7.1 AND 7.2, PEOPLE.AI MAKES NO WARRANTY OF ANY KIND THAT THE PEOPLE.AI MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES (INCLUDING THIRD-PARTY SERVICES), OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. THE WARRANTIES IN SECTION 7.1 AND SECTION 7.2 DO NOT APPLY TO ANY THIRD-PARTY SERVICES, AND PEOPLE.AI STRICTLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SERVICES.
- Indemnification by People.ai. People.ai will indemnify and defend Customer against any demand, claim, loss, liability, or damage (“Losses”) arising out of or resulting from any claim, suit, action, or proceeding (each an “Action”) by a third-party (other than an Affiliate of the Customer’s indemnitees) to the extent that such Losses arise out of or result from a claim that any of the Services or any People.ai Materials actually does or threatens to infringe, misappropriate or otherwise violate any United States’ Intellectual Property Right, provided however, that People.ai will have no liability or obligation for any Action or Losses to the extent that such Action or Losses arise out of or results from any: (a) alteration or modification of the Services or the People.ai Materials without People.ai’s express written authorization; (b) use of the Services or the People.ai Materials by Customer or a User pursuant to this Agreement in combination with any apparatus, hardware, software or service not provided, authorized or approved by or on behalf of People.ai in writing; (c) access to or use of the Services or the People.ai Materials that is expressly prohibited by this Agreement or otherwise outside the scope of access or manner or purpose of use described or contemplated anywhere in this Agreement, the Documentation or the applicable Order Form; (d) any Customer Data or any instruction or information provided by Customer to People.ai and used in accordance with this Agreement; (e) violation of any applicable Law by Customer or any of its Users.
- Options. Subject to the exclusions set forth in subsection (a) through (e) of Section 8.1, if People.ai reasonable believes that any of the Services or the People.ai Materials infringe or otherwise violate the rights of any third-party, People.ai will either, at People.ai’s sole cost and expense: (i) procure for Customer the right to continue to access and use the Services and People.ai Materials to the full extent contemplated by this Agreement and the Documentation; or (ii) modify or replace the Services or People.ai Materials that infringe or are alleged to infringe to make the Services or People.ai Materials non-infringing while providing substantially equivalent features and functionality. If People.ai reasonably determines that the foregoing remedies would be commercially impractical or impossible then People.ai will terminate this Agreement and promptly provide Customer with a pro-rata refund any prepaid Fees for the unused Services.
- Indemnification by Customer. Customer will indemnify and defend People.ai and People.ai’s Affiliates from and against any and all Losses incurred by People.ai or People.ai’s Affiliates resulting from (i) any Action by a third party (other than an Affiliate of People.ai) that arise out of or result from, or are alleged to arise out of or result from any act, omission, or other matter described in subclause (a) through subclause (e) of Section 8.1, whether or not the same results in any Action or Losses by People.ai; or (ii) a claim that Customer or Customer Data, actually does or threatens to infringe, misappropriate, or otherwise violate any United States’ Intellectual Property Right or other right of a third-party.
- Procedure. Each party’s obligations under Sections 8.1 and 8.3 are conditioned on the indemnified party (a) providing the indemnifying party with prompt written notice of the Action (provided that the indemnified party’s failure to provide such written notice will only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such Action), (b) granting the indemnifying party the sole control of the defense and settlement of the Action, and (c) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the Action at the indemnifying party’s expense. Notwithstanding anything else to the contrary in this Agreement, any obligation of the indemnifying party to defend, indemnify and hold the indemnified party harmless hereunder is limited to the indemnifying party’s payment for the cost of defense of the third-party claim incurred by the indemnifying party and the payment of (i) any settlements agreed to by indemnifying party in a writing signed by an officer of indemnifying party, or (ii) final judgments awarded to the third-party claimant by a court of competent jurisdiction. The indemnifying party will not agree to any settlement of any Action that requires the indemnified party to make any admission of wrongdoing or to pay any amounts not covered by the indemnifying party without the indemnified party’s prior written consent. Any indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PEOPLE.AI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR PEOPLE.AI MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability
- General Limitation on Liability. EXCEPT AS OTHERWISE PROVIDED IN SECTION 9.2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, (B) DAMAGES BASED ON LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, OR (C) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT THAT EXCEEDS THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO PEOPLE.AI PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN EACH CASE, SUCH LIMITATIONS WILL APPLY REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- Exceptions. The exclusions and limitations in Section 9.1 will not apply to: (a) a party’s indemnification obligations under Section 8; or (b) Customer’s breach of Section 4 or Section 5.3. Notwithstanding the foregoing, People.ai’s aggregate liability arising out of or related to a material breach of Section 3 of this Agreement or a DPA executed between the parties will not exceed two (2) times the total of the amounts paid and amounts accrued but not yet paid to People.ai pursuant to this Agreement in the twelve (12) month period preceding the event giving rise to the claim.
10. Term and Termination
- Term. This Agreement will commence on the Effective Date and continue for the period specified in an Order Form (the “Term”), unless terminated earlier as provided in this Agreement.
- Renewal Terms. Except as otherwise specified in an Order Form, Subscriptions will automatically renew for additional one (1) year terms (each a “Renewal Term”), unless either party gives the other written notice at least 30 days before the end of the then-current Term. Except as expressly provided in the applicable Order Form, discounts, promotions, and/or special pricing will not apply to Renewal Terms and People.ai’s applicable list prices will apply to all Subscriptions during Renewal Terms.
- Termination for Cause. In addition to any right of termination set forth elsewhere in this Agreement, either party may terminate this Agreement or any Order Form, by written notice to the other party effective as of the date specified in such notice, if the other party materially breaches this Agreement or such Order Form and such breach either: (a) cannot be cured; or (b) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof. In addition to any other right of termination set forth elsewhere in this Agreement, People.ai may terminate this Agreement by written notice to Customer if Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after Customer’s receipt of written notice of nonpayment. If Customer terminates this Agreement because pursuant to this Section 10.3, Customer will be entitled to a pro-rate refund for the portion of the remainder of the term that has been pre-paid and is subject to the material breach. Termination of this Agreement by People.ai pursuant to this Section 10.3 does not relieve Customer of the obligation to pay any Fees due.
- Effect of Termination. Except as otherwise provided in this Agreement, upon and after the termination or expiration of this Agreement for any reason: (a) Customer will cease all use and access to the Services and People.ai Materials; (b) Customer will pay to People.ai all undisputed charges and amounts due and payable to People.ai; and (c) following the completion of the Services, People.ai will delete Customer Data.
- Surviving Provisions. The provisions of this Agreement that, by their nature and content, should survive the termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement will so survive and continue to bind the Parties. Without limiting the generality of the foregoing, the Parties specifically acknowledge that the following provisions will survive and continue to bind the Parties: Sections 5, 6, 7.5, 8, 9, 10.5, 11, and 13.
11. Free Services
- Access to Free Services. Customer agrees that People.ai, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that People.ai will not be liable to Customer or any third party for such termination.
- Exceptions for Free Services. Notwithstanding anything to the contrary in this Agreement, for Free Services the services are provided “as-is” without any warranty and People.ai will have no indemnification obligations nor liability of any type with respect to the services for the Free Services unless such exclusion of liability is not enforceable under applicable law in which case People.ai’s liability with respect to the Free Services will not exceed $1,000.00. Without limiting the foregoing, People.ai and its Affiliates and its licensors do not represent or warrant to customer that: (a) Customer’s use of the Free Services will meet Customer’s requirements and (b) Customer’s use of the Free Services will be uninterrupted, timely, secure, or free from error. Notwithstanding anything to the contrary in this Agreement, Customer will be fully liable under this agreement to People.ai and its Affiliates for any damages arising out of Customer’s use of the Free Services, any breach by Customer of this Agreement, and any of Customer’s Indemnification obligations hereunder.
In addition to the defined terms found throughout this Agreement, the following define terms will apply:
- “Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify a User’s identity and authorization to access and use the Services through a third-party identity provider.
- “Affiliate” means any entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, the term “control” means direct or indirect ownership or control, through any applicable means, of more than 50% of the voting interests of the subject entity.
- “Customer Data” means, other than Output, all information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or User through the Services, including such information collected from Users.
- “Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
- “Documentation” means People.ai’s end user documentation relating to the Services available at https://help.people.ai.
- “Output” means data and information that results from the Services (using artificial intelligence and other algorithms) processing Customer Data and other data provided by People.ai for the purpose of enhancing, revising, augmenting, or updating Customer Data as part of the normal operation of the Services.
- “Free Services” means Services that People.ai makes available to Customer free of charge.
- “Intellectual Property Rights” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) patents; (b) trademarks; (c) copyrights; (d) moral rights; (e) internet domain names and social media account or user names (including “handles”), whether or not trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not copyrights; (f) software; (g) rights of publicity; (h) rights of privacy; and (i) all other intellectual or industrial property and proprietary rights.
- “Law” means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
- “People.ai Materials” means the Services, Documentation, and People.ai’s systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any technical or functional descriptions, requirements, plans, or reports, that are provided or used by People.ai in connection with the Services or otherwise comprise or relate to the Services or People.ai’s Systems. For the avoidance of doubt, People.ai Materials include Output and Service Data, but does not include Customer Data.
- “Professional Services” means consulting and similar services defined in an applicable Statement of Work. Professional Services excludes the Services and Support Services.
- “Statement of Work” means a document executed by the parties that describes certain Professional Services purchased by Customer under this Agreement. Each Statement of Work must incorporate this Agreement by reference.
- “Services” means any cloud-based web platforms and/or the applications delivered and or made accessible by People.ai or its authorized Reseller (as defined herein) and further described on an Order Form or other ordering document accepted by the parties or Customer and Reseller. The Services do not include Professional Services.
- “Subscription” means a subscription to the Services purchased by the Customer for a User.
- “Support Services” means the support services provided by People.ai in accordance with Exhibit A (Support and Service Level Exhibit).
- “Third-Party Services” means any third-party products and communication services that interface to Services, including, without limitation, email, calendaring, phone, VOIP, CRM, and chat services.
- “User” means an individual who is authorized by Customer to use or access the Services.
13. General Terms
- Force Majeure. Neither party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party that make it impossible or commercially impracticable for such party to perform its obligations hereunder, which may include failure by a third-party hosting provider or utility provider, strikes (provided that such strike does not involve the employees of the party failing to perform), shortages, riots, fires, acts of God, war, terrorism, and governmental action.
- Relationship of the Parties. Nothing herein will be construed to create an agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties. The parties will be independent contractors pursuant to this Agreement. Neither party hereto will have any express or implied right, power, or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third-party.
- Publicity. Either party may reference the name and logo of the other party in lists of customers or vendors. When displaying the logo of the other party, the displaying party will follow the trademark guidelines of the other party.
- Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. To the extent of any inconsistency between this Agreement and the Order Form, the Order Form controls, unless otherwise agreed to in writing by the parties.
- Notices. Ordinary day-to-day operational communications may be conducted by email or telephone communications. Any other notices required by this Agreement will be in writing and will be deemed to have been duly given when received if sent by: (i) personal delivery, (ii) by certified or registered mail (return receipt requested) or (iii) by commercial express courier (with tracking capabilities) to the address specified in the most recent Order Form.
- Amendment and Modification; Waiver. No amendment to, or modification of, this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
- Assignment. Neither party will assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement without the other party’s prior written consent, which consent will not unreasonably be withheld or delayed. Notwithstanding the foregoing, either party will have the right, without the other party’s consent, to assign or otherwise transfer this Agreement in whole or in part upon notice to the other: (a) to any of its Affiliates; or (b) in connection with any merger, consolidation or reorganization involving the assigning party (regardless of whether the assigning party is a surviving or disappearing entity), or a sale of all or substantially all of the assigning party’s business or assets relating to this Agreement to an unaffiliated third-party of good financial standing. Any purported assignment or delegation in violation of this Section 13.8 will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder.
- Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city and county of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or, in the case of Customer, Section 5.3, 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. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
Support and Service Level Exhibit
- Definitions. For the purposes of this Exhibit, the following terms have the meanings set forth below. All initial capitalized terms used in this Exhibit that are not defined in this Exhibit will have the respective meanings given to them in the main body of the Agreement.
“Business Day” means a day, other than Saturday, Sunday, or other day on which commercial banks in San Francisco, California are authorized or required by law to be closed for business.
“Business Hours” means 8:00 AM–6:00 PM Pacific Time on Business Days.
“Error” means any reproducible failure of the Service to operate in all material respects in accordance with the Documentation and, to the extent consistent with and not limiting the then-current specifications and documentation located at https://help.people.ai or as provided for in the main body of the Agreement.
“Premier Support Services” means services purchased by Customer in an applicable Order Form. Premier Support Services may include one-time deployment services and are provided in addition to Support Services.
“Support Hours” means 8:00 AM–6:00 PM Pacific Time and 10 AM–8 PM Eastern European Time on Business Days.
- Training. People.ai shall provide up to ten (10) Administrators with training on how to use and configure the People.ai Service via remote (e.g., email or remote video conference-based training) at no additional cost or expense. People.ai does not provide training to Users other than Administrators, and Customer agrees and acknowledges that Customer (and its Administrators) are solely responsible for training other types of Users and other personnel as necessary.
- Maintenance; updates.
- SaaS Updates. People.ai shall provide Customer with updates, bugs, enhancements, new releases, new minor versions, and other improvements to the Services that People.ai provides at no additional charge to its other similarly situated customers to the extent the forgoing is not marketed by People.ai as a separate product or additional optional feature for which People.ai charges its similarly situated customers additional fees or costs. Customer agrees to accept all such updates, upgrades, enhancements, and/or new releases to the Services.
- AppExchange Updates. From time to time, People.ai may upgrade the Package Services. Such updates are provided without charge provided that Customer has paid all applicable fees then due. Customer agrees that People.ai can automatically push upgrades of the Package Services to the Customer’s Salesforce instance. Package Services will notify Customer at least five (5) business days prior to pushing the upgrade to Customer’s Salesforce Instance. Unless otherwise indicated in the foregoing notice, People.ai will push the upgrade to the Customer’s Salesforce instance during non-Business Hours.
- Support; Support Requests.
- Support Services. People.ai shall provide Support Services for the then-current version and release of the Services during the Support Hours on Business Days throughout the Term in accordance with the terms and conditions of this Exhibit and the main body of this Agreement. The Support Services are included in the Services and People.ai shall not assess any additional Fees, costs, or charges for such Support Services.
- Support Service Responsibilities. People.ai shall:
(a) respond to and make good faith efforts to promptly resolve all Support Requests in accordance with the support levels set forth below;
(b) provide reasonable Support Services to Customer by means of in-application webchat and email at firstname.lastname@example.org; and
(c) provide Customer with online access to technical support bulletins and other support information (including the Services’ knowledge base) 24×7 throughout the entire year (except for occasional periods of downtime and maintenance), to the full extent People.ai makes such resources available to its other customers; and
(d) respond to and resolve Support Requests as specified in this Exhibit.
- Support Requests and Customer Obligations. Customer may request Support Services through a Support Request (each, a “Support Request”). Customer’s Administrators shall notify People.ai of each Support Request by email at email@example.com or by webchat in the application, or through such other means as the parties may agree to in writing. Customer shall include in each Support Request a description of the reported Error and the time the Customer first observed the Error. People.ai shall classify its requests for Support Services in accordance with the severity level numbers and definitions of the Service Level Table set forth in Section 4.6.
- Customer Contacts. Customer shall designate one or more Administrators who will act as a direct liaison with People.ai and be responsible for communicating with, and providing timely and accurate information and feedback to, People.ai in connection with the Support Services. The Administrators will be the sole liaison(s) between Customer and People.ai in sending Support Requests and communicating with People.ai in connection with any matters relating to the provision of the Support Services.
- Customer Obligations. Customer shall, by and through its Administrators, provide People.ai with: (a) prompt notice of any Errors; (b) output and other data, documents and information, each of which may be deemed Customer’s Confidential Information as defined in the main Agreement; and (c) such other reasonable cooperation and assistance as People.ai may request.
- Response Time Service levels. Response times will be measured from the time People.ai receives a Support Request until the time that People.ai has responded to such Support Request, provided, however, that if a Support Request is received outside of Support Hours, such Support Request will be deemed to have been sent at the beginning of the next Support Hours. People.ai shall respond to and make good faith efforts to resolve all Support Requests within the following times based on its reasonable designation of the severity of the associated Error based on the description and further input from Customer (when appropriate), subject to People.ai’s revision of such a designation after People.ai’s investigation of the reported Error.
- Availability Requirement. Subject to the terms and conditions of the main body of the Agreement, People.ai shall make commercially reasonable efforts to make the Services Available, as measured over the course of each calendar month during the Term, at least 99.5% of the time, excluding only the time the Services are not Available solely as a result of one or more Exceptions described below (the “Availability Requirement”). “Available” means the Services are available and operable for access and use by Customer and its Users over the Internet in material conformity with the Documentation. “Availability” has a correlative meaning.
- Exceptions. No period of Service degradation or inoperability will be included in calculating Availability to the extent that such downtime or degradation is due to any of the following (“Exceptions”): (a) Customer’s or any of its Users’ misuse of the Services; (b) failures of Customer’s or its Users’ internet connectivity; (c) general internet or other network traffic problems; (d) Customer’s or any of its Users’ failure to meet any minimum hardware or software requirements; (e) Scheduled Downtime as set forth in Section 5.3; (f) emergency downtime required to mitigate or remedy a real and immediate threat to the security or availability of the Services or People.ai Materials; (g) Customer’s Third-Party Services; or (h) a Force Majeure Event.
- Scheduled Downtime. People.ai will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services at times other than between the hours of 9:00 AM – 5:00 Pacific Time; and (b) give Customer reasonable prior notice of all other scheduled outages of the Services (“Scheduled Downtime”).