WHEREAS, Gablex Inc. (DBA “make-my-ai”) has developed certain AI-powered voice and text automation cloud-based subscription services to allow clients to handle incoming phone calls and voicemails (the “Services”);
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:
1.1. License. Subject to Customer’s compliance with the terms, conditions and restrictions of this Agreement, make-my-ai grants Customer a limited, non-exclusive, non-transferable license to access and use the Services as provided herein and in accordance with make-my-ai’s applicable user documentation, policies, and related materials.
1.2. Fees. Customer understands and agrees that make-my-ai's fees are based on an anticipated number of calls to be processed through the Services on a monthly basis during the Term. make-my-ai will review such average usage on a quarterly basis and adjust such pricing to the extent the average usage places Customer in a higher pricing tier. In the event that Customer’s usage exceeds the anticipated usage as determined by such quarterly reviews, Customer agrees to pay make-my-ai on a going forward basis only at the higher pricing tier. Customer shall not be responsible for any true up for any prior period measurement, even if such measurement shows higher than anticipated usage.
1.3. Support. make-my-ai will provide support for the Services in accordance with Exhibit A.
1.4. Service Updates. From time to time, make-my-ai may provide upgrades, enhancements, and/or modifications to the Services (“Updates”), and such Updates will become part of the Services and subject to the terms of this Agreement.
1.5. Telecommunications and Internet Connectivity. Customer agrees that its use of the Services is dependent upon access to telecommunications and Internet connectivity. Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to use the Services make-my-ai shall not be responsible for any loss or corruption of data, communications, or any other loss or damage arising from nonperformance of such telecommunications and/or Internet services.
1.6. Equipment; Passwords. Customer shall be responsible for obtaining and maintaining any equipment needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, user account, passwords (including but not limited to administrative and user passwords), and for all uses of Customer account and the Equipment.
1.7. Restrictions on Use. Customer shall not and shall not permit its employees or any third party to: (a) reverse engineer, decompile, decode, decrypt, disassemble, or in any way attempt to derive source code, object code or underlying structure or algorithms of the Services; (b) modify, translate, adapt, alter, or create derivative works from or based on the Services; (c) copy, distribute, publicly display, transmit, sell, rent, pledge, lease, assign or otherwise transfer or encumber rights to the Services; (d) use the Services for the benefit of a third party or grant any third party access to or use of the Services; (e) remove or otherwise alter any proprietary notices or labels from the Services; (f) use the Services, in whole or in part, to build an application or product that is competitive with any make-my-ai product or service;(g) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (h) bypass any measures make-my-ai may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (i) crawl, frame or scrape or in-line link to any page, data, or portion of or relating to the Services or use web crawlers, web spiders or other automated means to access, copy, index, process and/or store any content on the Services; or (j) use the Services in a manner that violates applicable laws or regulations.
1.8. Feedback. Customer may from time to time provide recommendations, ideas, suggestions, comments or other feedback to make-my-ai regarding the Services, including with respect to the performance, functionality, features or operation thereof (“Feedback”). Customer hereby unconditionally and irrevocably disclaims, and assigns and conveys to make-my-ai, any and all interest(s) (if any) in and to any and all Feedback.
2.1. In Services and Related Materials. As between the Parties, make-my-ai retains all right, title and interest in and to: (a) the Services, including all modifications, enhancements and customizations thereto, and all technology and intellectual property comprising, appurtenant to, and/or used to support and/or operate, the Services, (b) all make-my-ai documentation and videos related to the Services. make-my-ai may update or otherwise modify the Services from time to time in make-my-ai’s sole discretion and all such updates and modifications shall also be the sole property of make-my-ai, and (c) it shall comply with all accessibility guidelines, including without limitation using all commercially reasonable efforts to make the Service accessible and usable to all people including those with disabilities.
2.2. Customer Data. Except as provided herein, all data related to Customer’s data related to telephone calls processed by the Services (“Telephone Calls”) shall be owned by Customer, provided, however, that: (i) make-my-ai shall be permitted to record Telephone Calls, create transcripts of those Telephone Calls, and use and store such recordings and transcripts for the sole purpose of improving the Services, and (ii) make-my-ai shall be permitted to use anonymized data related to usage of the Services to for the sole purpose of improving the Services.
3.1. Term. This Agreement shall commence on the Effective Date and shall last for 30 days, during which period Customer may test out the Services (such period is referred to herein as the “Pilot Period”). Customer shall be permitted to notify make-my-ai at any time during the Pilot Period to inform make-my-ai that it does not wish to continue to use the Services (such notice is referred to herein as a “Pilot Period Termination Notice”). If make-my-ai has not received a Pilot Period Termination Notice during the Pilot Period, then the Term of the Agreement shall automatically renew for a 30-day period, and continue to auto-renew at the expiration of each 30-day period, for another 30 days, at the end of the Pilot Period, unless otherwise terminated in accordance with the terms of this Agreement (on the terms set forth herein, other than Fees, which make-my-ai may increase in accordance with its standard policies). Either Party can contact the other Party with at least 30 days' notice before the desired termination date to indicate that it does not want the Term so extended. The Pilot Period, along with any subsequent month-to-month extensions, is referred to herein as the "Term".
3.2. Termination for Material Breach. In the event of a material breach of this Agreement by one Party, the other Party may terminate this Agreement if the breaching Party fails to cure such breach within 30 days (or 10 days, with respect to a breach of payment obligations) after receipt of notice of such breach; provided, however, that make-my-ai shall have right to terminate this Agreement immediately upon notice to Customer, without providing an opportunity to cure, in the event that Customer breaches any of the restrictions in Section 1.7.
3.3. Termination for Insolvency. Either Party may also immediately terminate this Agreement in the event the other Party: (a) admits in writing its inability to pay its debts as they become due, fails to satisfy any judgment against it, or otherwise ceases operations of its business in the ordinary course, (b) is adjudicated bankrupt or becomes insolvent, (c) winds up or liquidates its business voluntarily or otherwise, (d) applies for, consents to or suffers the appointment of, or the taking of possession by, a receiver, custodian, assignee, trustee, liquidator or similar fiduciary of itself or of all or any substantial portion of its assets, (e) makes a general assignment for the benefit of creditors, (f) commences a voluntary case under any state or federal bankruptcy laws (as now or hereafter in effect), (g) files a petition seeking to take advantage of any other law providing for the relief of debtors, (h) acquiesces to, or fails to have dismissed, within 30 days, any petition filed against it in any involuntary case pursuant to such bankruptcy laws, and/or (i) takes any action for the purpose of effecting any of the foregoing.
3.4. Effect of Termination. Upon any termination or expiration the Term, (a) all rights and licenses granted by make-my-ai to Customer herein with respect to the Services shall immediately terminate, (b) Customer shall immediately pay any unpaid fees owed to make-my-ai, and (c) each Party shall, except as otherwise set forth herein, return or destroy all Confidential Information of the other Party in its possession or control.
4.1. Fees. Customer shall pay make-my-ai the fees for the Service set forth in the Order Form (“Fees”). Unless otherwise specified in the Order Form, all Fees shall be invoiced monthly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days of the invoice date. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. All Fees paid are non-refundable and are not subject to setoff. Customer shall reimburse make-my-ai for the costs of collection of any unpaid amounts owed hereunder.
4.2. Taxes. Customer agrees to pay all taxes, including sales, use, excise, purchase, goods and/or services, value-added and other taxes levied against, imposed upon or otherwise arising in connection with the provision of the Services, exclusive, however, of taxes based on make-my-ai’s income.
5.1. Representations and Warranties. Each Party represents, warrants and covenants to the other Party that: (a) it has the full right, power and authority to enter into and perform the acts required of it under this Agreement; (b) the execution and delivery of this Agreement do not conflict with, or constitute a default under any covenant, agreement judgment, law, order or contract to which it is subject; and (c) this Agreement constitutes the legal, valid and binding obligation of such Party when executed and delivered.
5.2. Additional Representations By Customer. Customer further represents, warrants and covenants that: (a) it shall comply (and ensure that its employees shall comply) with all applicable federal, state and local laws, rules and regulations in its use of the Services; (b) it has the right to grant make-my-ai the right to use all data provided to make-my-ai hereunder and make-my-ai's use of such data in order to perform the Services shall not violate the rights of any third party.
5.3. Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT ON THE BASIS OF ANY REPRESENTATIONS OR PROMISES NOT EXPRESSLY CONTAINED HEREIN. WITHOUT LIMITING THE FOREGOING, CUSTOMER AGREES THAT ITS USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK AND ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AND SLANG DOES NOT MAKE ANY WARRANTIES WITH RESPECT TO THE OPERATION, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR ADEQUACY OF THE SAME. SLANG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THEY WILL PERFORM AS DESCRIBED OR FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT SLANG DOES NOT INCORPORATE TTY OR SIMILAR USER ASSISTED FUNCTIONALITIES INTO THE SERVICES, BUT PROVIDES FOR TRANSFER TO CUSTOMER’S REPRESENTATIVES OR CHOSEN TELECOMMUNICATIONS PLATFORM IN THE CASE A USER FAILS TO RESPOND TO THE SERVICES.
6.1. By Customer. Customer shall indemnify, defend and hold make-my-ai, its affiliates, and their respective directors, officers, employees, suppliers, contractors, agents and assigns, harmless, at its own cost and expense, from and against any and all third party claims or actions, and all resulting liabilities, losses, damages, injuries, costs and expenses, including reasonable attorneys’ fees and costs, judgments and any amounts paid in any settlement (collectively, “Claims”) arising out of or relating to (a) Customer’s use of the Services, except to the extent Customer is required to be indemnified by make-my-ai pursuant to Section 6.2 below or (b) any breach by Customer of its representations, warranties or obligations under this Agreement.
6.2. By make-my-ai. make-my-ai shall indemnify, defend and hold Customer, its affiliates, and their respective directors, officers, employees, suppliers, contractors, agents and assigns harmless, at its own cost and expense, from and against any Claims that allege that the Services infringe a registered U.S. patent or any other intellectual property rights of a third party; provided, however, that make-my-ai shall have no obligation to so defend or indemnify Customer if such Claims arise out of or relate to (i) any information, technology, materials or data not created or provided by make-my-ai (including any data provided by Customer), (ii) any modification to the Services not made or authorized by make-my-ai in writing, or any combination of the Services with third party products, components, processes or materials that are not authorized in writing by make-my-ai, (iii) Customer’s continuation of allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (iv) Customer’s non-compliance with the terms and conditions of this Agreement.
6.3. Procedure. The indemnifying Party shall conduct the defense of any such claim or action and all negotiations for its settlement or compromise; provided, however, that (a) no settlement or compromise shall be entered into or agreed to without the indemnified Party’s prior written approval and (b) the indemnified Party has the right to participate, at its own expense, in the defense and/or settlement of any such claim or action in order to protect its own interests.
NOTWITSHSTANDING ANYTHING TO THE CONTRARY HEREIN, EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR EXCEPT FOR DAMAGES THAT DIRECTLY FLOW FROM A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS; DATA LOSS; COST OF PROCUREMENT OF SUBSTITUTE SERVICES; ERROR OR INTERRUPTION OF USE, OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR FOR ANY MATTER BEYOND EITHER PARTY’S REASONABLE CONTROL; OR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL SLANG’S AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF THE SERVICE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
8.1. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of make-my-ai includes the terms of this Agreement (in accordance with Section 8.3 below) as well as non-public information regarding features, functionality, business plans, techniques, methods, processes, pricing and performance of the Services. Proprietary Information of Customer includes nonpublic data provided by Customer to Company to enable the provision of the Services (“Customer Data”).
8.2. In each case, the Receiving Party agrees: (i) to take reasonable precautions to protect the other Party’s Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third party such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply to any information that the Receiving Party can document: (a) is or becomes publicly known through no act or omission of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law or by any governmental agency, provided that before disclosing such information the Disclosing Party must provide the non-Disclosing Party with sufficient advance notice of the agency’s request for the information to enable the non-Disclosing Party to exercise any rights it may have to challenge or limit the agency’s authority to receive such confidential information. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Proprietary Information are legally bound to comply with the obligations set forth herein.
8.3. The terms and conditions of this Agreement shall be deemed the confidential information of both Parties and neither Party shall disclose such information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information.
8.4. Except as otherwise set forth herein, Customer shall own all right, title and interest in and to the Customer Data. make-my-ai shall own and retain all right, title and interest in and to (a) the Services and all related software and improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
8.5. Notwithstanding anything to the contrary herein, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other make-my-ai offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
9.1. Relationship. Each Party is an independent contractor and each Party’s personnel are not employees or agents of the other Party for federal, state, local or other tax purposes or any other purposes whatsoever. Personnel of one Party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other Party in any manner whatsoever. Nothing in this Agreement shall be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, nor constitute one Party an agent of the other Party.
9.2. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and delivered personally, mailed via first class mail, postage prepaid, or via an internationally recognized overnight courier, to the applicable Party at the addresses set forth below, unless, by notice, a Party changes or supplements the addressee and addresses for giving notice. All notices shall be deemed given on the date personally delivered or when placed in the mail as specified.
9.3. Publicity; Press Releases. make-my-ai will be permitted to refer to the Parties’ relationship hereunder for sales and marketing purposes. make-my-ai will obtain Customer’s written consent to include anything about the relationship with Customer in any press releases. make-my-ai may identify customer as a client (and use Customer’s logos in connection with the same) on make-my-ai’s website during the Term. Any other use of Customer’s logos and marks shall be subject to Customer’s prior written approval.
9.4. Governing Law. This Agreement and all disputes, claims, actions, suits or other proceedings arising hereunder shall be governed by, and construed in accordance with, the substantive law of the State of New York applicable to contracts wholly made and to be performed within the State of New York. Each Party irrevocably submits to the sole and exclusive jurisdiction of the courts of New York State and the Federal courts of the Southern District of New York, situated in the City, County and State of New York. Each Party irrevocably consents to the exercise of personal jurisdiction over each of the Parties by such courts and waives any right to plead, claim or allege that New York is an inconvenient forum.
9.5. Force Majeure. Notwithstanding anything to the contrary herein, neither Party shall be liable for any loss or damage, delay, or failure in performance of any of its obligations under this Agreement resulting from any cause beyond a Party’s reasonable control, including the elements, fire, flood, severe weather, earthquake, vandalism, pandemics, accidents, sabotage, power failure, denial of service attacks or similar attacks, Internet failure, acts of God and the public enemy, acts of war, acts of terrorism, riots, civil or public disturbances, strikes lock-outs or labor disruptions, any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.
9.6. Entire Agreement; Third-Party Beneficiaries. This Agreement, together with the Exhibits attached hereto and the Order Form, constitutes the entire agreement between the Parties and supersedes any prior or inconsistent agreements, negotiations, representations and promises, written or oral with respect to the subject matter hereof. This Agreement is for the sole benefit of the Parties and their authorized successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any person or entity, other than the Parties and their authorized successors and permitted assigns, any legal or equitable right, benefit or remedy of any nature whatsoever.
9.7. Counterparts; Interpretation; Construction. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. The terms “include,” “includes,” and “including,” whether or not capitalized, mean “include, but are not limited to,” “includes, but is not limited to,” and “including, but not limited to,” respectively and are to be construed as inclusive, not exclusive. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Except as otherwise explicitly set forth in this Agreement, in the event that a provision in an Order Form conflicts with any other provision in this Agreement, the Order Form shall govern to the extent necessary to resolve the conflict.
9.8. Amendment; Waiver; Severability. No amendment, modification, waiver or discharge of any provision of this Agreement shall be valid unless made in writing and signed by an authorized representative of the Party against whom enforcement is sought. No failure or delay by either Party to exercise any right or enforce any obligation shall impair or be construed as a waiver or on-going waiver of that or any or other right or power, unless made in writing and signed by both Parties. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining provisions of this Agreement shall be unimpaired and remain in full force and effect.
9.9. Assignment/Successors. Neither Party may assign or transfer this Agreement, in whole or in part, without the other Party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a Party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such Party or (ii) all or substantially all of the assets of such Party, by another entity in a single transaction or a series of transactions; or (b) the merger of such Party with another entity. This Agreement shall be binding upon, and enforceable by, and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
9.10. Consents; Further Assurances; Remedies. Except as specifically set forth in this Agreement, all consents, requests and approvals to be given by either Party under this Agreement shall (a) be in writing and (b) not be unreasonably withheld. Each Party shall make only reasonable requests to the other under this Agreement. Further, each Party shall provide such further documents or instruments required by the other Party as may be reasonably necessary, appropriate or desirable to give effect to this Agreement and to carry out its provisions. Notwithstanding anything set forth in this Agreement to the contrary, all rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, in any other agreement between the Parties or otherwise.
9.11. Survival. Sections 1.7, 1.8, 3.4, 5.3 and Articles 2, 6, 7, 8, and 9 shall survive the cancellation, expiration or termination of this Agreement.
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