getitAI, Inc.
TERMS OF SERVICE
These Terms of Service (the “TOS”) are entered into pursuant to the Initial Order Form (defined below) by and between getitAI, Inc., a Delaware corporation (“getitAI”), and the customer listed in the Initial Order Form (“Customer”) and are effective as of the effective date of the Initial Order Form (the “Effective Date”). getitAI and Customer are each, a “Party” and, collectively, are the “Parties”.
Definitions. The following terms, when used in the TOS, will have the following meanings:
“API” means the application programming interface for sending data to or receiving data from the Service and any software libraries made available to Customer for accessing the foregoing.
“Buyer” means individual end users to whom Customer has made available the Service through the Customer’s website or application.
“Buyer Inputs” means any information input by Buyers to the Service.
“Confidential Information” means any information of a confidential or non-public nature disclosed by one Party as a disclosing Party to the other Party as a receiving Party that is either designated as confidential or proprietary at the time of disclosure or should be reasonably understood to be confidential in light of the nature of the information or the circumstances surrounding disclosure.
“Customer Data” means data or information provided by Customer to getitAI for the purposes of enabling the Service, including but not limited to Customer lists, product descriptions, pricing lists, brand-related descriptions, brand-related materials, audio-visual materials, marketplace descriptions, and other business, product, or services-related data or information. Customer Data does not include Buyer Inputs.
“Documentation” means any user instructions, manuals, on-line help files, or other materials that are provided by getitAI in connection with getitAI Technology.
“getitAI Technology” means, collectively, the Service, API, Revenue Studio, Documentation, Output Data, and any other services or materials to be provided pursuant to the TOS.
“Initial Order Form” is the first Order Form entered into between the Parties, and as attached as Exhibit A. “Integration Services” means the integration services, implementation services, or other professional services, if any, performed by getitAI in connection with the Service, as identified in an Order Form.
“Order Form” means a mutually executed order form referencing the TOS that sets forth the features and functionality of the getitAI Technology to which Customer, and to the extent set forth under the TOS, Customer’s Buyers, are obtaining a license or right to access and use hereunder and/or the Integration Services or other services as applicable, to be provided hereunder and pricing therefor to be paid by Customer.
“Output Data” means any data output to Customer and/or Buyers via the Service.
“Revenue Studio” means the web-based or application user interface for Customer to access portions of the Service.
“Service” means getitAI’s AI-powered digital sales agent as made available to Customer and its Buyers pursuant to an applicable Order Form, including all fixes, updates and upgrades to the same made available to Customer.
“Submitted Data” means Customer Data and Buyer Inputs collectively.
License; Access and Use; Services
License to the Service. getitAI hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, license during the term set forth in the applicable Order Form to access and use, and permit Buyers to access and use, the Service solely for Customer’s lawful business purposes. getitAI hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the term set forth in the applicable Order Form to access and use the Revenue Studio solely for Customer’s business purposes in connection with the Service.
API Access. Subject to Customer’s ongoing compliance with the TOS, getitAI hereby grants Customer a non-exclusive right to integrate and embed into Customer’s mobile application and web-based platforms the API. If the Service is being provided to the Customer through a third party service provider website or application as an add-on or extension (e.g., Shopify), Customer and Buyer may be subject to additional terms and conditions with respect to such third party service provider. Customer and Buyer compliance with the terms and conditions of the third party service provider application is solely upon the Customer and Buyer, respectively.
Documentation. Subject to the terms and conditions of the TOS, getitAI hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license during the term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of getitAI Technology.
Customer Limitations. The rights granted herein are subject to the following restrictions. Customer and its Buyers will not directly or indirectly, and shall not authorize any third party to: (a) reverse engineer, decompile, disassemble, translate, modify, create derivative works or otherwise attempt to derive the source code, algorithms, or associated know-how of getitAI Technology, except to the extent expressly permitted by getitAI; (b) write or develop any program based upon getitAI Technology or any portion of any of the foregoing, or otherwise use getitAI Technology in any manner for the purpose of developing, distributing or making available products or services that compete with getitAI Technology; (c) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in getitAI Technology or any rights to any of the foregoing; (d) permit getitAI Technology to be accessed or used by any persons other than Customer or its Buyers accessing or using getitAI Technology in accordance with the TOS; (e) alter or remove any trademarks or proprietary notices contained in or on getitAI Technology; (f) circumvent or otherwise interfere with any authentication or security measures of getitAI Technology, or otherwise interfere with or disrupt the integrity or performance of the foregoing; (g) export getitAI Technology or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders; (h) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the getitAI Technology; (i) otherwise use getitAI Technology except as expressly permitted hereunder and in the applicable Order Form; or (j) permit getitAI Technology to be accessed or used by any persons other than Buyers accessing or using the Service in accordance with the TOS.
End User License Agreement. Customer represents and warrants that it has in place commercial terms that govern the Buyer’s interactions with the Customer’s website or application and that those commercial terms are consistent with the restrictions, obligations, licenses, and conditions placed upon Buyers and Customer under the TOS. Customer further represents and warrants that it has all the rights, licenses, and permissions necessary from all Buyers as are necessary to implement the Service in accordance with the TOS and to lawfully exercise and perform all of its rights and obligations under the TOS, including without limitation, to transmit Buyer Inputs to getitAI, as well as the rights, licenses, and permissions in Section 4.4. Customer must prominently disclose and notice Buyers that the Buyer Inputs are being provided and processed by a third party using artificial intelligence technology. Customer acknowledges and agrees that any questions, comments, disputes, claims, or controversies concerning any products, goods, or services that do not relate to getitAI Technology as provided under the TOS (e.g., Customer goods, products, or services), shall be solely between Customer and Buyer.
Integration Services. getitAI will provide to Customer the Integration Services, if any, as set forth in an Order Form. To the extent set forth hereunder, Customer will permit getitAI to perform Integration Services in connection with the integration and deployment of the Service and getitAI Technology, as applicable. Nothing in the TOS shall be understood to prevent getitAI from developing similar work product or deliverables with respect to other customers integration and deployment of the Service and getitAI Technology, as applicable.
Fees; Audits
Fees. getitAI will be paid by Customer in accordance with the TOS and as set forth in the applicable Order Form. getitAI will submit an invoice for services rendered to Customer at the frequency set forth in the applicable Order Form. Customer will pay invoices submitted by getitAI within [thirty (30) days of receipt]. In the event getitAI does not receive payment within the guidelines set forth in the TOS, getitAI reserves the right to stop work, suspend Customer’s, and its Buyer’s, access, use, and license to getitAI Technology, and withhold any work product until payment is rendered. Except as otherwise specified herein or in any applicable Order Form: (a) fees are quoted and payable in United States dollars; and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable.
Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of getitAI and those allocated to getitAI hereunder. Customer will not withhold any taxes from any amounts due to getitAI.
Proprietary Rights and Confidentiality
Proprietary Rights. getitAI exclusively owns all right, title and interest in and to the getitAI Technology. Customer exclusively owns all right, title and interest in and to Customer’s Confidential Information and Customer Data, except as set forth in an Order Form. Except as expressly granted in the TOS, getitAI does not grant to Customer or its Buyers any license or rights (by implication, estoppel, or otherwise) in the getitAI Technology. All other rights are expressly reserved by getitAI. Notwithstanding anything herein to the contrary, all rights granted hereunder in and to the getitAI Technology are licensed and not sold or transferred. Customer will include on any copies it makes of the Documentation any copyright notices or proprietary legends contained within the same. Customer acknowledges and agrees that getitAI may, but is under no obligation to monitor Customer’s, and Buyer’s, use of any getitAI Technology.
Feedback. Customer may from time to time provide getitAI suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the getitAI Technology. getitAI will have the full, unencumbered right, without any obligation to compensate or reimburse Customer or its Buyers, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.
Confidentiality. Each Party agrees that it will use the Confidential Information of the other Party solely to perform its obligations and exercise its rights under the TOS and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. However, either Party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives (collectively, “Representatives”) who have a need to know and are legally bound to keep such information confidential by confidentiality obligations with respect to the Confidential Information of the other Party similar with those of the TOS (provided that the Party disclosing the Confidential Information to its Representatives shall be responsible for any actions of its Representatives that would breach this Section 4.3 if such Representatives were a party to the TOS and bound by the same); and (b) as required by law (in which case the receiving Party will provide the disclosing Party with prior written notification thereof, will provide the disclosing Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither Party will disclose the provisions of the TOS, to any third party, except that either Party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. The obligations of confidentiality in this Section 4.3 shall not apply to information that: (i) is or becomes generally known or publicly available through no fault of the receiving Party; (ii) was properly known by the receiving Party, without restriction, prior to disclosure by the disclosing Party; (iii) was properly disclosed to the receiving Party, without restriction, by another person with the legal authority to do so; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees to exercise due care in protecting the Confidential Information of the other Party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the licenses contained herein, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in the TOS. Notwithstanding anything to the contrary herein, nothing herein limits or restricts getitAI’s right or ability to use data regarding the performance, availability, usage, integrity and security of getitAI Technology.
Submitted Data. Customer agrees that getitAI may access and use Submitted Data, as well as the transmission of the same to third party providers of artificial intelligence platforms, as necessary to make the Service available, perform its obligations hereunder, and to develop, maintain, and improve getitAI Technology, including, without limitation, performing any required, usual, appropriate, or acceptable activities relating to the Service, such as: (a) providing or supporting the use of the Service, and carrying out the business of which the Service is a part; (b) carrying out any benefits, rights, and obligations relating to the Service; (c) training and improving getitAI’s machine learning algorithms and data models; (d) maintaining records relating to the Service; (e) complying with any legal or self-regulatory obligations; and (f) as otherwise expressly permitted under the TOS. In addition, getitAI may use Buyer Inputs in an aggregated and anonymous manner for any business purpose, including but not limited to compiling statistical and performance information, maintaining, developing, and improving getitAI Technology. getitAI may make anonymized and aggregated Buyer Inputs publicly available, which includes but is not limited to transmitting Buyer Inputs to third party providers of artificial intelligence platforms. getitAI shall have no obligation or liability in connection with any information or data (including but not limited to Buyer Inputs) which is anonymized, unless and to the extent restricted by applicable law. Customer acknowledges and agrees that, notwithstanding anything to the contrary herein, getitAI may, in its sole discretion, erase or delete from the Service any Submitted Data that it reasonably believes is illegal, harmful, objectionable, lewd, not related to the function of or necessary for the use of the Service, or that getitAI determines may, as a result of getitAI possessing such data, harm getitAI’s business or reputation.
Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THE TOS, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, GETITAI TECHNOLOGY IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. GETITAI HEREBY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, LOSS OF DATA, BUSINESS INTERRUPTION, OR ACCURACY OF RESULTS OR OUTPUT DATA. GETITAI DOES NOT WARRANT THAT GETITAI TECHNOLOGY WILL BE ERROR-FREE, UNINTERRUPTED, COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT ANY DATA PROVIDED BY OR THROUGH THE GETITAI TECHNOLOGY, INCLUDING CUSTOMER DATA, SUBMITTED DATA, BUYER INPUTS, AND OUTPUT DATA WILL BE ACCURATE OR COMPLETE, OR, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THAT GETITAI’S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO SUBMITTED DATA, CUSTOMER DATA, BUYER INPUTS, AND OUTPUT DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) GETITAI AND THE SERVICE ONLY PROVIDE DATA AND SOFTWARE TO ASSIST CUSTOMER IN FACILITATING ONLINE DIGITAL SALES; AND (ii) CUSTOMER BEARS ALL RESPONSIBILITY, AND GETITAI WILL HAVE NO LIABILITY FOR SUBMITTED DATA, OUTPUT DATA, OR ANY OTHER DATA OR INFORMATION PROVIDED TO CUSTOMER VIA GETITAI TECHNOLOGY.
Indemnification
Indemnification by getitAI. getitAI will defend Customer against any claim, demand, suit, or proceeding (“Customer Claim”) made or brought against Customer by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates a United States patent, copyright or trademark and will indemnify Customer for any damages finally awarded against Customer in connection with any such Customer Claim (or any settlement approved by getitAI); provided that: (a) Customer will promptly notify getitAI of such Customer Claim; (b) getitAI will have the sole and exclusive authority to defend and/or settle any such Customer Claim (provided that getitAI may not settle any Customer Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability); and (c) Customer reasonably cooperates with getitAI in connection therewith. If the use of getitAI by Customer has become, or in getitAI’s opinion is likely to become, the subject of any claim of infringement, getitAI may at its option and expense: (i) procure for Customer the right to continue using and receiving getitAI Technology as set forth hereunder; (ii) replace or modify getitAI Technology to make it non-infringing; or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the TOS and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term. getitAI will have no liability or obligation with respect to any Customer Claim to the extent such Customer Claim is caused by: (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of the getitAI Technology by Customer or Buyer not in accordance with the TOS; (C) modification of the getitAI Technology by any party other than getitAI; (D) Customer’s Confidential Information; (E) Submitted Data; (F); Buyer Inputs, or (G) the combination, operation or use of the getitAI Technology with other applications, portions of applications, product(s) or services, including the Revenue Studio, where getitAI Technology would not by itself be infringing (clauses (A) through (G), “Excluded Claims”). This Section states getitAI’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.
Indemnification by Customer. Customer will: (a) defend getitAI against any Excluded Claim made or brought against getitAI by a third party, and Customer will indemnify getitAI for any damages finally awarded against getitAI in connection with any such Excluded Claim (or any settlement approved by Customer); (b) indemnify getitAI for any Buyer claims made or brought against getitAI; or (c) indemnify getitAI for any liability, damage, or loss incurred by getitAI as a result of any use of getitAI Technology by any user permitted to access and use the getitAI Technology by Customer; provided that: (i) getitAI will promptly notify Customer of such Excluded Claim; (ii) Customer will have the sole and exclusive authority to defend and/or settle any such Excluded Claim (provided that Customer may not settle any Excluded Claim without getitAI’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases getitAI of all liability); and (iii) getitAI reasonably cooperates with Customer in connection therewith.
Limitation of Liability. EXCEPT FOR LIABILITY ARISING OUT OF A PARTY’S: (I) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR (II) ITS OBLIGATIONS UNDER SECTIONS 2.4, 3, 4.1, 4.3, OR 6, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THE TOS FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
Term and Termination
Term. The term of the TOS will commence on the Effective Date of the Initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription period duration set forth therein (the “Initial Term”). Unless otherwise set forth in an Order Form, upon expiration of the Initial Term, each Order Form will automatically renew for consecutive and successive renewal terms equal to the length of the subscription period duration of such Order Form, unless either Party provides the other Party with written notice of non-renewal at least sixty (60) days prior to the end of the then-current term. getitAI reserves the right to increase the fees payable under an Order Form effective at the start of the next renewal term, by providing written notice of such increase to Customer at least sixty (60) days prior to the end of the then-current term.
Termination. Each Party may terminate the TOS upon written notice to the other Party if there are no Order Forms then in effect. getitAI may terminate an Order Form at any time. Each Party may terminate the TOS and all Order Forms in effect upon written notice in the event: (a) the other Party commits any material breach of the TOS and fails to remedy such breach within thirty (30) days after written notice of such breach; or (b) subject to applicable law, upon the other Party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other Party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.
Survival. Upon termination of the TOS: (a) all licenses and other rights and obligations will immediately terminate except that Sections 1, 2.4, 2.5, 3, 4, 5, 6, 7, 8.2, 8.3, 8.4, and 10 will survive indefinitely; and (b) Customer will immediately: (i) cease all use of the getitAI Technology, (ii) promptly erase all copies of the getitAI Technology in Customer’s possession, and (iii) certify in writing that it has complied with the foregoing (i) and (ii).
Data Retention and Deletion. getitAI is under no obligation to save, store, or back-up any Submitted Data. In the event any data is lost, corrupted, or unretained it is at Customer’s sole risk.
Compliance with Law. Customer warrants that its use of the getitAI Technology will comply in all respects with all applicable laws in connection with the TOS, including without limitation the U.S. Export Administration Regulations and sanctions regulations administered by the U.S. Treasury Department.
General
Publicity. getitAI’s may use and display Customer’s name, service marks, or trademarks in any press releases or marketing materials.
Assignment. Customer may not assign, subcontract, delegate, or otherwise transfer the TOS, or any of its rights or obligations under the TOS, without the prior written consent of getitAI. getitAI may freely assign and transfer the TOS without Customer’s consent, including any of getitAI’s rights, obligations, or licenses granted under the TOS. Subject to the foregoing, the TOS will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
Amendment; Waiver. No amendment or modification to the TOS, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both Parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of the TOS will not be deemed a waiver of future enforcement of that or any other provision.
Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein will give rise or is intended to give rise to any rights of any kind to any third parties.
Unenforceability. If a court of competent jurisdiction determines that any provision or part of the TOS is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of the TOS will remain in full force and effect and bind the Parties according to its terms.
Governing Law. The TOS will be governed by the laws of the State of Delaware, exclusive of its rules governing choice of law and conflict of laws. The TOS will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
Notices. Any notice or communication required or permitted under the TOS shall be in writing to the Parties at their respective office or e-mail address set forth in the Initial Order Form. The written communication shall be deemed to have been received by the addressee; (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the third business day after such notice is deposited in the mail; or (d) if given by email, upon sending of an email.
Entire Agreement. The TOS, including all, exhibits, appendices, Order Forms and all terms linked to or referenced herein, which are hereby incorporated by reference into and form a part of the TOS, comprises the entire agreement between Customer and getitAI with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by getitAI, its agents or employees will create a warranty or in any way increase the scope of the warranties in the TOS.
Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations, other than any obligations to make payments hereunder, due to causes beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, epidemic, embargo, riot, sabotage, labor or material shortage or dispute, governmental act or failure or degradation of the Internet.
Government Terms. getitAI provides the getitAI Technology, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Service and API, shall constitute “commercial” computer software. Government technical data and software rights related to the Service and API include only those rights customarily provided to the public as defined in the TOS. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under the TOS, it must negotiate with getitAI to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
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