Terms defined in the Order Form shall have the same meaning in this Agreement unless the context indicates otherwise.
“Bot” means Ada Support’s proprietary conversational, artificial intelligence powered customer support assistant which can access End User Data and be deployed through the Channel.
“Customer” means the customer as defined in the Order Form.
“Channel” means the communication or messaging channel(s) specified in the Order Form.
“End User” means customers of Customer who access the Software Services through the Channel.
“End User Data” means any data relating to End Users which Customer receives, procures, gathers, stores, processes or has access to
“Engagement” means a single instance of a conversation between any End User and the Bot on any Channel. For the avoidance of doubt, each new or renewed conversation between any End User and the Bot on any Channel (even the same channel) shall be a separate Engagement.
“Initial Term” has the meaning given to it in Section 10.1.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents; (b) trade-marks; (c) Internet domain names, whether or not trade-marks, registered by any authorized private registrar or governmental authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and industrial design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection under the laws of any jurisdiction in any part of the world.
“Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Service, including but not limited to demographics data, mobility patterns, location data and trend data such as aggregated data and statistics indicating frequency of use and popularity of the services. For greater certainty, Pattern Data is data that does not identify a specific Customer or its end users and is data which does not relate to a specific Customer’s business (including data relating to a specific Customer’s locations that receive the Services).
“Site” means www.ada.support and any sub-site of that site.
“Software Services” has the meaning given to it in Section 3.1.
“Software Service API” means the API that enables the access to End User Data held by Software Services by the Software Services.
“Support Services” means the support and services set out in the applicable Order Form (if any).
“Term” means the period of the Initial Term and any subsequent Renewal Term.
“Renewal Term” has the meaning given to it in Section 10.2.
“You” means Customer or any other user of the Website.
modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on Ada Support technology except to the extent expressly agreed upon in writing by Ada Support with Customer or to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary;
circumvent any user limits or other use restrictions that are built into the Software Services;
remove any proprietary notices, labels, or marks from the Software Services or Ada Support technology;
access the Software Services in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Software Services; or
use the Services in a manner that:
Infringes or violates the intellectual property rights or any other rights of anyone else (including Ada Support);
Violates any law or regulation, including any applicable export control laws;
Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
Attempts, in any manner, to obtain the password, account, or other security information from any other user;
Violates the security of any computer network, or cracks any passwords or security encryption codes; or
Runs any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Customer are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure).
Customer-branded responses to End-User queries using the Bot through the Channels in the Language, as more fully described in the Order Form; and
Such other related services as may be expressly agreed between Customer and Ada Support from time to time as set out in the Order Form or subsequent Order Forms.
reverse engineer, decrypt, decompile, decode, disassemble, or in any other way try to procure the human decipherable form of the Software Service; undertake any benchmark trials using all or any part of the Software Service API; remove any copyright notices, ownership labels or classified legends placed upon or found within the Software Service; or
indulge in any action with the Software Service API that meddles with, disturbs, destroys, or accesses in an unlawful way the server networks, connections, records, or other assets and tools or services of Ada Support or any related third party.
End User Data Terms: To the extent an End User receives, procures, gathers, stores, processes or has access to any End User Data via the Software Services, Customer is solely responsible for obtaining the requisite permission from End Users for use of their End User Data in connection with the Software Services.
Accuracy of End User Data: Ada Support does not represent, warrant or undertake that the End User Data available through the Software Services will at all times be accurate, error-free, up-to-date or complete.
Ada Support will inform Customer of any planned changes or upgrades to its Software Service API or Software Services by sending an email notification at least ninety (90) days prior to the changes coming into effect. In case of any emergency or other unplanned modifications or updates to its Software Service API or Software Services, Ada Support will send Customer a notification by email as soon as time permits informing Customer of the date when such changes or updates become effective. In the event of a discontinuation of a Software Service, any pre-paid software service fees will be refunded on a prorated basis.
Feedback: Ada Support may freely use any suggestions, feedback or ideas Customer may provide. By providing any feedback to Ada Support, Customer grants Ada Support a perpetual, worldwide, fully transferable, sublicensable, non-revocable, royalty free, license to use the feedback that Customer provides. Ada Support may put Customer’s provided feedback in various uses that may include but not limited to modifying and improving the Software Services, Ada Support’s other current and future services/products, services advertising or marketing materials.
Price & Payment
Software Services Fees: the Software Service Fees are those fees as described in the Order Form.
Invoices and payment: Invoices will be sent and payment will be due in accordance with the terms of the Agreement. Invoice frequency is as set out in the Order Form.
Availability, Security, and Stability
Availability. AdaSupport shall: (i) make commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data; and (ii) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Ada Support shall , unless circumstances otherwise require, give at least eight (8) hours notice via the Service and which Ada Support shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Eastern Standard Time Friday to 3:00 a.m. Eastern Standard Time Monday); or (b) any unavailability caused by circumstances beyond Ada Support's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Provider employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within Ada Support’s possession or reasonable control, and denial of service attacks.
Performance: The Software Services depend on Internet availability, including networks, cabling facilities and equipment that is not in Ada Support’s control. Accordingly:
no guarantee is given in respect of any minimum level regarding such access, performance, speed, reliability, availability, use or consistency of the Software Service API or Software Services in respect of Internet availability, including networks, cabling facilities and equipment that is not in Ada Support’s control, but Ada Support agrees it will use commercially reasonable efforts to restore such availability where it is within its power to do so.
As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
Confidentiality The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission. Notwithstanding the foregoing, Provider may: disclose this Agreement to its actual and prospective investors, advisors and partners.
Protection Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
Compelled Disclosure If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
Remedies If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
Terms and Termination
Is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if it goes into either voluntary (other than for reconstruction or amalgamation) or compulsory liquidation, or a receiver or administrator is appointed over its assets, or if the equivalent of any such events under the laws of any of the relevant jurisdictions occurs; or
Termination for convenience. Ada Support retains the right to terminate this agreement at any time for conveience upon giving not less than 60 days advance written notice. On such termination Ada Support shall refund all unused Fees that may have been prepaid by You.
Effect of Termination:
The Party that cannot fulfill its obligations as a result of force majeure circumstances shall immediately inform the other Party of occurrence of such circumstances and their possible period, as well as confirm such notice in writing not later that within seven (7) calendar days from the date of occurrence of force majeure circumstances. Failure to inform or untimely information does not give the Party that has failed to inform or has informed untimely the right to refer to any force majeure circumstances as to the grounds for release from liability for incomplete fulfillment or non-fulfillment of its obligations.
Warranties, Disclaimers, & Indemification
Disclaimer: EXCEPT AS SPECIFICALLY SET OUT HEREIN THE SOFTWARE SERVICES ARE PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND. VENDOR AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT AND VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL STATUTORY REPRESENTATIONS AND/OR WARRANTIES AGAINST NON-INFRINGEMENT AND ANY AND ALL IMPLIED REPRESENTATIONS AND/OR WARRANTIES OF MERCHANTABILITY, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
MUTUAL INDEMNIFICATION: EACH PARTY AGREES TO INDEMNIFY, DEFEND AND HOLD THE OTHER PARTY AND ITS REPRESENTATIVES HARMLESS FROM ALL LOSSES ARISING OUT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT (INCLUDING, WITHOUT LIMITATION, FRAUD OR ANY OTHER UNLAWFUL ACT) IN PERFORMING ITS OBLIGATIONS PURSUANT TO THIS AGREEMENT OR, IN THE CASE OF CUSTOMER, IN ITS USE OF THE SERVICES.
INDEMNITY FOR END USER CLAIMS: Customer SHALL KEEP VENDOR, BOTH DURING THE TERM AND AFTER EXPIRATION OF THIS AGREEMENT, FULLY AND EFFECTIVELY INDEMNIFIED AGAINST ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES, COSTS AND EXPENSES INCURRED BY OR IMPOSED UPON VENDOR AS A CONSEQUENCE OF ANY AWARD OR JUDGMENT IN FAVOUR OF AN END USER OF Customer ARISING IN CONNECTION WITH THE SOFTWARE SERVICES (SAVE WHERE SUCH CLAIM WOULD OTHERWISE BE INDEMNIFIED BY VENDOR UNDER SECTION 12.4 OR 12.6).
INDEMNITY FOR SECURITY BREACH CLAIMS: EACH PARTY (THE "INDEMNIFYING PARTY") SHALL KEEP THE OTHER PARTY (THE "INDEMNIFIED PARTY") FULLY AND EFFECTIVELY INDEMNIFIED AGAINST ALL DIRECT LOSSES, CLAIMS, DAMAGES, LIABILITIES, COSTS AND EXPENSES INCURRED BY OR IMPOSED UPON THE INDEMNIFIED PARTY ARISING OUT OF THE DISCLOSURE TO OR ACCESS BY AN UNAUTHORIZED THIRD PARTY OF END USER DATA (A “SECURITY BREACH”) AS A RESULT OF A BREACH OF THE TERMS OF THIS AGREEMENT BY THE INDEMNIFYING PARTY OR OTHERWISE DUE TO THE INDEMNIFYING PARTY’S WILFUL MISCONDUCT OR GROSS NEGLIGENCE.
Indemnity by Ada Support: Ada Support shall defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Software Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party, and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney's fees incurred by, Customer in connection with any such claim; provided that Customer(a) promptly gives Ada Support written notice of the claim; (b) gives Ada Support sole control of the defense and settlement of the claim; and (c) provides to Ada Support all reasonable assistance, at Ada Support‘s expense.
Limitation of Liability
LIMITATION ON INDIRECT LIABILITY: THE VENDOR SHALL NOT BE RESPONSIBLE FOR ANY OTHER PERSON’S OR ENTITY’S ERRORS, ACTS, OMISSIONS, FAILURES TO ACT, NEGLIGENCE OR INTENTIONAL CONDUCT, INCLUDING WITHOUT LIMITATION ENTITIES SUCH AS VENDOR’S AFFILIATES, SUBSIDIARIES, AGENTS OR SUBCONTRACTORS. IN NO EVENT SHALL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHICH CUSTOMER OR ITS END USERS, AFFILIATES, PARENT COMPANIES, ASSOCIATES, AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT, RESULTING FROM VENDOR’S ACTS OR OMISSIONS PURSUANT TO THIS AGREEMENT.
LIMITATION ON AMOUNT OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE EQUIVALENT OF THE FEES PAID BY CUSTOMER TO VENDOR IN THE PREVIOUS SIX (6) MONTHS PRECEDING THE CLAIM.
Exceptions to Limitations: These limitations of liability do not apply to breaches of confidentiality obligations set out in Section 17, violations of a Party’s Intellectual Property Rights by the other Party, or to the indemnification obligations set out in Sections 21.4, 21.5, 21.6 and 21.7.
Support: Ada Support will provide support to Customer in accordance with the terms in the Technical Support Agreement. Customer is solely responsible for providing all support and technical assistance to its End Users with respect to the Software Services. Customer acknowledges and agrees that Ada Support has no obligation to provide support or technical assistance directly to the End Users of Software Services and Customer shall not represent to any such End Users that Ada Support is available to provide such support. Customer agrees to use commercially reasonable efforts to provide reasonable support to End Users of the Software Services.
All references in this Agreement to designated “sections”, “paragraphs” and other subdivisions are references to the designated sections, paragraphs and other subdivisions of this Agreement;
The words “herein”, “hereof” and “hereunder”, and other words of similar import, refer to this Agreement as a whole and not to any particular section, paragraph or other subdivision;
The headings are for convenience only and do not form a part of this Agreement, nor are they intended to interpret, define or limit the scope, extent or intent of this Agreement, or any of its provisions;
Where the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, and the words following “include”, “includes” or “including”, as the case may be, shall not be considered to set forth an exhaustive list;
Unless otherwise stated, all references to currency shall mean Canadian currency;
Any reference to any Person shall include and shall be deemed to be a reference to any entity that is a successor to such entity;
Words importing gender include all genders, and words importing the singular include the plural, and vice versa.
Assignment - Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.