Standard Terms and Conditions
Last updated: August 2, 2024
These Terms and Conditions (“Standard Terms”) govern the purchase of Services by the Customer and the access or use by the Customer of the Services made available by SIKE Inc. (the “Company”). By accepting or executing an Order that references these Standard Terms, or (b) otherwise accessing or using the Services, Customer agrees to be bound by these Standard Terms, and all terms, policies and guidelines incorporated by reference in these Standard Terms.
If accepting on behalf of a company or legal entity, you represent that you have the authority to bind such entity and its affiliates to these Standard Terms, in which case the terms “Customer”, “User” and “you” (as the case may be) shall refer to such entity and its affiliates. If you do not have such authority, you must not accept this Agreement and may not use the Services.
1. Provision of Services
1.1 Provision of Service and Access Credentials
Company will make the Services available to Customer pursuant to this Agreement and all Orders 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.
1.2 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 Orders 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.
1.3 Service Levels and Support Services
Company will use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit B.
2. Responsibilities
2.1 Customer Responsibilities
Customer is responsible and liable for: (a) all access to and use of the Services and Company 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 Company promptly of any such unauthorized access or use; (d) complying with all applicable laws in using the Services.
2.2 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.
2.3 Remedies
Company may temporarily suspend Customer’s (including Users’) access to the Services if Company reasonably determines that: (i) there is, or there is reasonably likely to be, a threat on the Company Materials caused by Customer; (ii) Customer’s use of the Company Materials disrupts or poses a security risk to the Company Materials or to any other customer or vendor of Company; (iii) Customer, or any User, is using the Company 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 Company’s reasonable judgment, causes or is likely to cause significant harm to Company or the Service or otherwise threatens the security, integrity or availability of the Service, then Company may suspend Customer’s access to the Service. Company 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
3.1 Company System and Security Obligations
Company will (i) comply with all applicable Laws in providing the Services and Professional Services; (ii) Company will employ reasonable security measures to protect Customer Data in accordance with Company’s information security policy as amended by Company 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, Company’s safeguards for the protection of Customer Data will include: (a) limiting access of Customer Data to Customer and Company’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 Company’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 Company’s employees.
4. Fees
4.1 Fees
Customer will pay the fees specified in an Order (“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.
4.2 Invoicing and Payment
Except as otherwise specified in any Order, 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.
4.3 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.
4.4 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 Company’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 by executing a new Order with Company, 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 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 Company is a subscription services provider, the number of Users purchased under an Order cannot be decreased during the term of such Order.
4.5 Fees for Third-Party Services.
Customer is responsible for all fees charged by its Customer Third-Party Services.
4.6 Failure to Pay
If Customer fails to pay any undisputed invoices in accordance with this section, Company may, provided that Company 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 Company has billed Customer incorrectly, Customer must contact Company 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 Company receives notice of a disputed invoice, Company will review such notice and provide Customer with a written decision regarding the dispute, including documentary support for such decision. If Company reasonably determines that the amounts charged on a disputed invoice are, in fact, due, Customer will pay such amounts within ten (10) days of Company notifying Customer in writing of such decision.
4.7 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 Company’s income, personnel, property, or other assets, or similar taxes not directly based on Customer’s use or consumption of Company’s products and services.
4.8 Subscriptions Through Resellers
If Customer purchases Subscriptions through a resale partner authorized by Company to resell such Subscriptions (“Reseller”), Customer will make all payments in accordance with the Order with the Reseller or Company. Reseller may offer different prices or different or additional terms and conditions for use of the Services than made available by Company. Any such different or additional terms and conditions (including any additional warranties) are between Customer and Reseller and Company assumes no responsibility for such terms. Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Order, Company 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
5.1 Access to Services
Subject to the terms and conditions of this Agreement, Company hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11.8 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.
5.2 Documentation License
Subject to the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Service.
5.3 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.
5.4 Customer Data
As between Company and Customer, Customer owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Company 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, including, without limitation, as needed for Company 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.
5.5 Company Intellectual Property
Company owns all right, title, and interest, including all Intellectual Property Rights, in and to the Company Materials and in and to all of Company’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 Company in providing the Services or the Professional Services to Customer. No implied licenses are granted under this Agreement.
5.6 Output
Customer and Company agree and acknowledge that Company’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 Company 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 Company 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 Company, Company owns all right, title, and interest, including all Intellectual Property Rights, in and to the Output.
5.7 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 Company 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 Company, Company owns all right, title, and interest, including all Intellectual Property Rights, in and to the Model Data.
5.8 Feedback
Customer may (but is not obligated to) provide suggestions, comments or other feedback to Company specifically with respect to the Services (“Feedback”). Company agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer grants Company a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
6. Confidentiality
6.1 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 Company Materials and Company’s security information, audits or reports, are and will remain the Confidential Information of Company.
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.
6.2 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.
6.3 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
7.1 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.
7.2 Company Warranties
Company 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 Company 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.
7.3 Customer Warranties
Customer represents, warrants, and covenants to Company 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 Company 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 Company will not violate Customer’s own applicable privacy policies and/or privacy notices; (c) the execution, delivery, and performance of this Agreement by Company 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.
7.4 Remedies for Breach of Warranty
If Company 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 Company) Customer will provide Company with notice of such breach and Company will correct such breach so that the Services conforms to the Documentation as required above, and if Company 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 Company breaches the warranties in Section 7.2(iii), Customer will provide written notice of breach and Company will re-perform the applicable Professional Services. If Company 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 Company’s sole liability and Customer’s sole remedy in the event of Company’s breach of Sections 7.2(i), (ii), or (iii).
7.5 Disclaimer
EXCEPT FOR THE LIMITED WARRANTIES STATED IN SECTIONS 7.1 AND SECTION 7.2, THE SIKE MATERIALS ARE PROVIDED “AS IS” AND SIKE HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SIKE 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, SIKE MAKES NO WARRANTY OF ANY KIND THAT THE SIKE 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 SIKE STRICTLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SERVICES.
8. Indemnification
8.1 Indemnification by Company
Company 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 Company Materials actually does or threatens to infringe, misappropriate or otherwise violate any United States’ Intellectual Property Right, provided however, that Company 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 Company Materials without Company’s express written authorization; (b) use of the Services or the Company 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 Company in writing; (c) access to or use of the Services or the Company 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; (d) any Customer Data or any instruction or information provided by Customer to Company and used in accordance with this Agreement; (e) violation of any applicable Law by Customer or any of its Users.
8.2 Options
Subject to the exclusions set forth in subsection (a) through (e) of Section 8.1, if Company reasonable believes that any of the Services or the Company Materials infringe or otherwise violate the rights of any third-party, Company will either, at Company’s sole cost and expense: (i) procure for Customer the right to continue to access and use the Services and Company Materials to the full extent contemplated by this Agreement and the Documentation; or (ii) modify or replace the Services or Company Materials that infringe or are alleged to infringe to make the Services or Company Materials non-infringing while providing substantially equivalent features and functionality. If Company reasonably determines that the foregoing remedies would be commercially impractical or impossible then Company will terminate this Agreement and promptly provide Customer with a pro-rata refund any prepaid Fees for the unused Services.
8.3 Indemnification by Customer
Customer will indemnify and defend Company and Company’s Affiliates from and against any and all Losses incurred by Company or Company’s Affiliates resulting from (i) any Action by a third party (other than an Affiliate of Company) 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 Company; 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.
8.4 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.
8.5 Sole Remedy
THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR COMPANY MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability
9.1 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 SIKE 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.
9.2 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, Company’s aggregate liability arising out of or related to a material breach of Section 3 of this Agreement will not exceed the total of the amounts paid and amounts accrued but not yet paid to Company pursuant to this Agreement in the twelve (12) month period preceding the event giving rise to the claim.
10. Term and Termination
10.1 Term
This Agreement will commence on the date that the initial Order is executed and continue for the period specified in an Order (the “Term”), unless terminated earlier as provided in this Agreement. Except as otherwise specified in an Order, Subscriptions will automatically renew for additional terms of equal length to the immediately preceding term (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, discounts, promotions, and/or special pricing will not apply to Renewal Terms and Company’s applicable list prices will apply to all Subscriptions during Renewal Terms. If the Term is renewed for any Renewal Terms pursuant to this Section 10.2, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal. The number of Users subscribed to the Services for any Renewal Terms will be the number of Users subscribed to the Services at the end of the immediately prior Term. Company may increase the Fees, per User, by five percent (5%) for any Renewal Term by providing written notice to Customer at least thirty (30) days prior to the commencement of such Renewal Term. The foregoing price lock shall not apply if Customer does not automatically renew the Order.
10.2 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, 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 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, Company 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 Company pursuant to this Section 10.2 does not relieve Customer of the obligation to pay any Fees due.
10.3 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 Company Materials; (b) Customer will pay to Company all undisputed charges and amounts due and payable to Company; and (c) following the completion of the Services, Company will delete Customer Data.
10.4 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, 8.5 and 11.
11. General Terms
11.1 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.
11.2 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.
11.3 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.
11.4 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, the Order controls, unless otherwise agreed to in writing by the parties.
11.5 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.
11.6 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.
11.7 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.
11.8 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 11.8 will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder.
11.9 Governing Law; Submission to Jurisdiction
This Agreement is governed by and construed in accordance with the internal laws of the State of New York 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 New York. 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 New York 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.
11.10 Arbitration
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York, New York, before one arbitrator. The arbitration shall be administered by JAMS pursuant to its rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator may, in the award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party
11.11 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.
11.12 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.
Exhibit A
Definitions
“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.
“Agreement” means these Standard Terms together with each Order.
“Company Materials” means the Services, Documentation, and Company’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 Company in connection with the Services or otherwise comprise or relate to the Services or Company’s Systems. For the avoidance of doubt, Company Materials include Output and Service Data, but does not include Customer Data.
“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 Company’s end user documentation relating to the Services.
“Output” means data and information that results from the Services (using artificial intelligence and other algorithms) processing Customer Data and other data provided by Company for the purpose of enhancing, revising, augmenting, or updating Customer Data as part of the normal operation of the Services.
“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.
“Order” means the initial order form and any other work orders in writing for the Services in form and substance mutually agreed upon by the parties.
“Professional Services” means consulting and similar services defined in an applicable Order. Professional Services excludes the Services and Support Services.
“Services” means any cloud-based web platforms and/or the applications delivered and or made accessible by Company or its authorized Reseller (as defined herein) and further described on an Order or other ordering document accepted by the parties or Customer and Reseller.
“Subscription” means a subscription to the Services purchased by the Customer in an applicable Order.
“Support Services” means the support services provided by Company in accordance with Exhibit B (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.
Exhibit B - Support and Service Level
Definitiions
“Company” means SIKE Inc.
“Customer” means a subscribed user of the Solution.
“Scheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which the Customer is unable to access the features and functions of the system due to planned system maintenance performed by Company as set forth below.
“Solution” means the SIKE AI platform owned by Company.
“System Uptime” means the total amount of time during any calendar month (24 hours a day, 7 days a week), measured in minutes, during which Customers are not impacted by issues that Company categorizes as “Emergency”. Any issues that are categorized as “Emergency” would be counted as Unscheduled Downtime and would be deducted from the total monthly uptime.
“Target Response Time” means the time elapsing from receipt of the request to Company initiating action to resolve the issue. The time to arrive to a solution may be longer. The Customer will be informed of the status of their request within the response times listed below.
“Unscheduled Downtime” means the total amount of time during any calendar month, measured in minutes, during which time the Customer is impacted by issues that Company categorizes as “Emergency”.
“Working Hours” means a time within the Standard Support Hours: from Monday to Friday, 6:00 AM PST (9:00 AM Sydney time) to 5:00 PM PST (9:00 PM Sydney time)[1]
Service Levels
Company will respond to error correction requests according to the urgency of the request as specified below:
| Category | Target Response Time | Category Guidance |
| Emergency | 2 Working Hours | An error that renders the whole Solution or a substantial part of it, inoperative, and which is not clearly due to Customer’s server/software setup. |
| High Priority | 4 Working Hours | An error that results in partial or intermittent failure of the Solution. |
| Medium Priority | 1 Working Day | Errors that do not affect critical parts of the Solution. |
| Low Priority | 2 Working Days | Other inquiries and minor errors/error messages. |
Category can be selected by the designated support contact upon posting the request. Category may be changed by Company’s personnel if request is not in accordance with specification in the above table.
Error reports should be accompanied by a detailed description of events immediately preceding the occurrence of the error, and should, if possible, attach a copy of the error message. Error correction shall be limited to errors occurring in the course of normal use of the Solution. Error correction may be done by means of temporary measures (“patching”). Company is not responsible for errors or malfunctions in the Solution caused in whole or in significant part by (a) Customer’s or its employees’ negligence; and (b) accidents and other events for which Company is not directly responsible.
Subject to the terms of the Customer agreement with Company, Company guarantees the Solution will have a minimum 99% system uptime, excluding Scheduled Downtime and including any Unscheduled Downtime.
In the event system uptime is less than 99% during any calendar month during the Term of this Agreement and, within 10 days of the end of such calendar month, Customer has notified Company of same and requested a credit in accordance with the provisions herein, Customer may be entitled to credits against its subsequent payment obligations or a refund equal to a percent of the subscription fees paid by Customer to Company during such calendar month, according to the following table.
| Solution Availability | Credit Amount |
| 98.99 – 98.00 | 8% of Monthly Subscription Fees |
| 97.99 – 97.00 | 12% of Monthly Subscription Fees |
| 96.99 – 96.00 | 18% of Monthly Subscription Fees |
| <95.99 | Maximum 25% of Monthly Subscription Fees |
[1] Technical Support may not be available on statutory holidays.
