These terms of use form a binding legal agreement between Ada Support Inc. and/or any Ada Support Inc. Subsidiary (“us”, “we”, and “our”) and customer. These terms of use (“Terms of Use”) govern customer’s (as defined below) access to and use of our services (as defined below). By using the services (including the site) in any way, or executing an order form, customer hereby agrees to these terms of use.

Article 1: Definitions

1.1. Definitions

When you interact with the Site we strive to make that experience easy and meaningful. When you come to our Site, our web server sends a cookie to your computer. A cookie is a small text file that may be stored on your computer or mobile device that contains data related to a website you visit. It may allow a website to “remember” your actions or preferences over a period of time, or it may be used to tell us whether customers and visitors have visited the Site previously. If you click on a link to a third-party Site, such third party may also transmit cookies to you. Cookies help us to improve our Site and deliver a better and more personalized service. Cookies can also help to ensure that adverts you see online are more relevant to you and your interests. Defined terms in the Transaction Document shall have the same meaning as in these Terms of Use, unless the context indicates otherwise.

“Ada Support” means Ada Support Inc. and may include an Affiliate of Ada Support Inc. to the extent such Affiliate is involved in the provision of Services.

“Ada Support APIs” means any Ada Support proprietary application programming interface (API) that may be made available as part of the Services.

“Ada Support API Terms” means Ada Support’s API Terms found at www.ada.cx/legal/api-terms.

“Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, the party specified. For purposes of this definition, “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.

“Aggregated and Statistical Information” has the meaning set out in Section 5.3.

“Agreement” means these Terms of Use and any Transaction Document or other document referenced herein.

“AUP” or “Acceptable Use Policy” means the Ada Support Acceptable Use Policy set out at www.ada.cx/legal/acceptable-use-policy.

“Authorized Customer Users” means employees or agents of Customer, authorized by Customer to access the Services and/or Bot on behalf of Customer.

“Bot” means Ada Support’s proprietary conversational, artificial intelligence powered bots, provided as part of the Services, including any bot designed to automated customer experience, customer engagement and customer support assistant and technical support.

“Change” has the meaning set out in Section 3.2(1).

“Change Order” means a Transaction Document executed between the Parties to implement a Change to an existing Transition Document.

“Change Request” has the meaning set out in Section 3.2(3).

“Change Request Procedure” has the meaning set out in Section 3.2(1).

“Channel” means the Ada web chat and/or any other communication or messaging channel(s) specified in the Order Form.

“Confidential Information” has the meaning set out in Section 7.1.

“Conversation” means unlimited messages between a Bot and an End User in a single Channel during a 24-hour period. A conversation starts with an End User sending a message to Ada. A conversation ends with an End User exiting the chat, or following 24 hours of inactivity from the last message sent by the Bot. If a Conversation is initiated by a Customer as part of a proactive campaign, then a Conversation would only be charged if the End User responds.

“Customer” means the entity identified in the Order Form and/or any individual or entity who uses the Services.

“Customer Content” means any Customer Data, materials or other content which is submitted to the Services by Customer.

“Customer Content License” has the meaning set out in Section 5.3.

“Customer Data” has the meaning set out in Section 5.3.

“Customer Dependencies” has the meaning set out in Section 3.1.

“Documentation” means any manuals, instructions, release notes or other documents or materials that Ada provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“End User” means end users of Customer who interact with the Bot, or otherwise use the Platform Services, through the Channel.

“End User Data” means any information, data or materials relating to Customer’s End Users that Ada Support either receives: (a) directly from an End User; (b) from Customer; or (c) from a third party authorized by Customer, which in each case may include Personal Data.

“Force Majeure Event” has the meaning set out in Section 12.1.

“Implementation Services” has the meaning set out in Section 2.2(1).

“Indemnifying Party” has the meaning set out in Section 10.4

“Indemnified Parties” has the meaning set out in Section 10.4.

“Initial Term” has the meaning as set out in the Order Form.

“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) patents and inventions; (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.

“Managed Services” means Services related to configuring and/or maintaining the Bot, as more particularly described in Transaction Document.

“Order Form” means either: (a) an online order form submitted through the Site subscribing for the Services (which may be available from time to time); or (b) an order form signed by Customer and Ada Support subscribing for the Services, in each case, which incorporate these Terms of Use.

“Party” means either Customer or Ada Support and “Parties” means both Customer and Ada Support.

“Personal Data” means any information that relates to an identifiable individual.

“Platform Services” means Ada Support’s software platform, made available as a service, through which it makes available its conversational Bots and related software offerings, as well as the Ada Support APIs.

“Professional Services” means any Managed Services, Implementation Services, Support Services or other professional services to be provided to Customer in connection with one or more Transaction Documents.

“Renewal Term” has the meaning as set out in the Order Form.

“Services” means, collectively: (a) the Platform Services; (b) the Ada Support APIs; (c) the Professional Services; and (e) any other products and services set out in a Transaction Document or otherwise made available by Ada Support under these Terms of Use.

“Site” means any website of Ada Support, including www.ada.cx, www.ada.support, and any sub-site of the foregoing websites.

“Statement of Work” or “SOW” means any written or electronic statement of work for the order of Professional Services provided by Ada Support to Customer in relation to the Services, as applicable.

“Subcontractor” has the meaning set out in Section 2.4.

“Support Services” has the meaning set out in Section 2.2(2).

“Term” has the meaning given to it in Section 9.1.

“Terms of Use” has the meaning set out in the preamble.

“Third Party Claim/Proceeding” has the meaning set out in Section 10.4.

“Third-Party Materials” has the meaning set out in Section 2.6.

“Transaction Document” means a valid Order Form, Statement of Work, or similar addendum that includes a scope of work to be performed and pricing, executed and entered into between Ada Support (or an Affiliate) and Customer, as applicable to the Services.

Article 2: Services, Availability, Performance & Restrictions

2.1. Use of the Platform Services

Subject to Customer’s compliance with this Agreement, Ada Support will make available the Platform Services specified in a Transaction Document to Customer on the terms and conditions set out in these Terms of Use and the applicable Transaction Document. Any use of the Ada Support APIs will be subject to the Ada Support API Terms and Documentation.

2.2. Additional Services

During the Term and solely to the extent set out in a mutually executed Transaction Document in place between Customer and Ada Support, Ada Support shall provide the following additional services to Customer, as applicable, in accordance with, and subject to, the terms and conditions set forth in these Terms of Use and the applicable Transaction Document:

1. implementation services set out in a Transaction Document (“Implementation Services”);
2. support services as set out in a Transaction Document (“Support Services”);
3. managed services as set out in a Transaction Document (“Managed Services”); and
4. any other professional or related services as may be expressly agreed to between Customer and Ada Support from time to time as set out in the initial Transaction Document or subsequent Transaction Document (collectively, the “ Professional Services”).

2.3. Customer Affiliates

Customer’s Affiliates may:

1. use the Services under and in accordance with the terms of this Agreement and the Transaction Document, provided that Customer represents and warrants that Customer has sufficient rights and the authority to make this Agreement binding upon each of the Affiliates; or
2. enter into a separate Transaction Document to purchase Services from Ada Support under this Agreement, provided such Affiliate agrees to be bound by the terms of this Agreement;

in each case, Customer and each of Customer’s Affiliates will be jointly and severally liable for the acts and omissions of such Affiliate in connection with this Agreement and such Affiliate’s use of the Services.

2.4. Performance

Customer agrees that Ada Support may, from time to time, in its discretion engage third parties to perform Services (each, a “Subcontractor”).

2.5. Customer Responsibilities

Customer will: (a) be solely responsible for all use of the Platform Services and Documentation under Customer User accounts; (b) not transfer, resell, lease, license, or otherwise make available the Platform Services to third parties, excluding Authorized Customer Users, (except to make the Bot available to End Users as contemplated in the Transaction Document) or offer them on a standalone basis; (c) use the Platform Services only in accordance with this Agreement, the Ada Acceptable Use Policy, the applicable Documentation, any applicable Transaction Document, and applicable law or regulation; (d) be solely responsible for all acts, omissions, and activities of Authorized Customer Users and End Users, including (i) their question and answer flows within the Bot and any Customer Data that Customer chooses to process in the Bot; (ii) their compliance with this Agreement, the Ada Acceptable Use Policy, the applicable Documentation, any applicable Transaction Document, and (iii) and applicable law or regulation; (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Ada Support promptly of any such unauthorized access or use; and (f) comply with Customer’s representations and warranties set forth in this Agreement.

2.6. Third Party Products and Services

Certain features of the Services are integrated with and rely on third party products and services that Customer chooses to use with the Services, including Customer or third-party APIs (“Third-Party Materials”). Accordingly, Customer acknowledges and agrees that the availability and performance of certain features will be subject to the availability and performance of such Third-Party Materials for which they are dependent. Any Third-Party Materials utilized by Customer in connection with the Services, whether purchased or accessed by Customer directly, or made available as an integration by Ada Support, and not provided for under these Terms of Use, is subject to the applicable third-party license and Customer is solely responsible for abiding by such third-party licenses. For greater certainty, Third-Party Materials shall not include any third-party materials or information which are incorporated into, integrated with, or linked with or to the Services, and which Ada Support distributes or licenses to its customers generally without the customer’s knowledge or consent.

Article 3: Governance; Change requests

3.1. Dependencies

In connection with Ada Support’s provision of the Services, Customer will: (a) reasonably cooperate with Ada Support (including providing timely decisions and approvals, as applicable); and (b) perform those tasks and assume those responsibilities specified in the applicable Transaction Document, or otherwise agreed in writing (together, the “Customer Dependencies”). Customer understands that Ada Support’s performance is dependent on Customer’s timely and effective satisfaction of the Customer Dependencies, and Ada Support will not be held responsible for a failure to perform or delay in performance of its obligations under this Agreement to the extent caused by Customer’s failure to do so. Ada Support will be entitled to rely on all decisions and approvals of Customer in connection with the Services.

3.3. Change Request Procedure

In connection with Ada Support’s provision of the Services,

1. Each Party will follow the procedure (the “Change Request Procedure”) set out in this Section should it wish to make any material change, addition, reduction, deletion, modification, relocation, improvement, amendment, delay, rescheduling or adjustment (a “Change”) to the Implementation Services.
2. Either Party may send a notice to the other Party requesting a Change.
3. Either Party may request a change by sending the other a notice (each, a “Change Request”), which notice will specify the Change in reasonable detail to enable the recipient to evaluate it.
4. Upon receipt of a Change Request, Ada Support will prepare an estimate describing the Change and any applicable fees. No Change will be binding unless the Parties execute a Change Order or other Transaction Document.

Article 4: Updates

4.1. Services Updates

Ada Support reserves the right to make changes and updates to the Services. Ada Support will inform Customer of any planned material changes or upgrades to its Platform Services by sending an email notification, or posting on the Platform Services. In case of any emergency, unplanned modifications or updates, or a minor change to its Ada Support APIs or Platform Services, Ada Support will notify Customer. Ada Support reserves the right to provide Support Services only in respect of the most recent version of the Platform Services.

Article 5: Proprietary Rights

5.1. Reservation of Rights

Ada Support owns all right, title, and interest, including Intellectual Property Rights, in and to: (a) the Services; (b) Aggregated and Statistical Information; (c) any materials or work product developed or provided by Ada Support to Customer under a Transaction Document or as part of the Implementation Services; and (d) any changes, updates, enhancements, adaptations, translations, or derivative works to the foregoing. Except for rights expressly granted to Customer, all other rights in and to the Services are expressly reserved by Ada Support and its licensors.

5.2. 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 any provided feedback in various uses that may include but are not limited to modifying and improving the Services, Ada Support’s other current and future services/products, advertising or marketing materials without any payment or other further obligation to Customer.

5.3. Customer Data

As between Customer and Ada Support, Customer owns and retains ownership of Customer Content that the Customer provides, stores or processes through the Services including End User Data and any other Personal Data that Customer provides about Customer’s End Users (“Customer Data”). Customer hereby grants Ada Support and its Affiliates a worldwide, royalty-free, and non-exclusive license to access Customer Data and End User Data in order to: (a) provide the Services; (b) perform the obligations set out in this Agreement or required under applicable laws; and (c) improve the Services and to create aggregated and de-identified information, according to industry standard, that does not contain any Personal Data (“**Aggregated and Statistical Information **”). Together with Section 5.2, the licenses granted to Ada Support by Customer constitutes the “Customer Content License”.

To the extent that any Customer Data includes any Personal Data, such Personal Data shhtall be held and processed by Ada Support in accordance with the terms of its privacy policy as set out on the Site: www.ada.cx/legal/privacy and, to the extent required by applicable Law, the Ada Data Processing Addendum. Customer shall advise Ada Support if it requires the Data Processing Addendum.

5.4. Warranty

Customer represents and warrants to Ada Support that Customer has all the rights, power and authority necessary to grant the above Customer Content License and that use of the Customer Content in the manner contemplated will not breach the rights of any third party. Customer is solely responsible for obtaining, and will obtain, all rights, consents, and permissions from, and making all requisite disclosures to, Authorized Customer Users and End Users, in each case as required under applicable laws, for: (a) its use of their End User Data in connection with the Services; and (b) for Ada Support to perform the Services and the obligations under this Agreement, including to collect, procure, gather, store, process and access End User Data and/or Personal Data. Customer agrees that it will (i) not request any sensitive personal information, including credit card or banking information, or personal health information, from its End Users through the Services; and (ii) inform Ada Support of any data protection laws applicable to Authorized Customer Users or End Users.

5.5. Content Responsibilities

Customer is responsible for any and all Customer Content provided hereunder and for compliance with these Terms of Use, including obtaining all necessary licenses, permissions and consents to enable all material comprising Customer Content to be made available to Ada Support for Ada Support to transmit, host and store. For greater certainty, Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. For greater certainty, Customer shall make any disclosures in its privacy notices, or as otherwise required under law, regarding Customer’s use of the Services to collect and process End User Data (such as disclosing use of a virtual third-party chatbot and storage of chat conversations).

Article 6: Price & Payment

6.1. Services Fees

The fees for Services ordered by Customer are those fees as described in the applicable Transaction Document. Additional products and services, including premium features, which are not listed in the Transaction Document, may be subject to additional fees. If Customer purchases a set number of Conversations and exceeds the Conversation limit in the Order Form, Ada Support will invoice Customer for the additional Conversations at the rates agreed to in the Order Form or Ada Support’s then-current rates. Fees for any Renewal Term (as defined below) shall be subject to a 10% increase for the same Services.

6.2. Invoices and payment

Invoices will be sent, and payment will be due, in accordance with the terms of the Transaction Document. Unless otherwise stated in the Transaction Document, invoice billing and payment shall be annual upfront payments and Customer shall pay all invoices within 30 days of receipt. Customer shall pay invoices by wire transfer or ACH direct payments. Amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services.

6.3. Taxes

Unless otherwise stated, Ada Support’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases pursuant to these Terms of Use. If Ada Support has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Ada Support with a valid tax exemption certificate authorized by the appropriate taxing authority.

Article 7: Confidentiality

7.1. Confidential Information

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 information on the Order Form, the Customer Data, the non-public aspects of the Services, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party.

7.2. 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, Ada Support may disclose this Agreement to its Affiliates, actual and prospective investors, shareholders, consultants, contractors, advisors and partners.

7.3. 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).

7.4. 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.

7.5. Remedies

If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the 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.

Article 8: Suspension Of Services

8.1. Suspension of Services

Ada Support may suspend Customer’s access to the Services upon the occurrence of any of the following:

1. degradation or instability of any part of the Platform Services, in which case Ada Support will endeavor to provide prior written notice to Customer;
2. if Customer’s account is thirty (30) days or more overdue. Such is in addition to any of Ada Support’s other rights or remedies and will persist until Customer has paid all outstanding amounts in full;
3. an emergency, suspected fraud, enforcement by external authorities or regulatory requirement without notice or on provision of at least ten (10) days’ prior written notice to Customer where practicable; or
4. Customer’s failure to abide by the Agreement.

Ada Support shall have no responsibility or liability for any losses, lost profits, potential lost business opportunities or other damages that might arise in relation to Ada Support’s suspension of Customer’s access to the Services.

Article 9: Terms And Termination

9.1. Term

This Agreement will be in effect for the period set out in the Transaction Document, including for clarity the Initial Term and any Renewal Term specified therein (the “Term”). If the Renewal Term is not defined or specified in the Transaction Document, this Agreement will automatically renew for successive one (1) year periods beginning on the expiry of the Initial Term unless either Party provides thirty (30) days’ prior written notice to the other Party of its intent not to renew. Notwithstanding anything in this Agreement, in the event that the Parties are in good faith negotiating the terms of any Renewal Term, the terms of this Agreement and the most recent Transaction Document shall govern until the execution of any subsequent Transaction Document.

9.2. Termination

Either Party may terminate this Agreement immediately on written notice if the other Party:

1. commits a material breach of this Agreement, which is capable of remedy, and the Party in breach fails to remedy the breach within thirty (30) days of written notice from the other Party;
2. commits a material breach of this Agreement which cannot be remedied;
3. is repeatedly in breach of this Agreement and has been given prior notice in writing that a further breach of this Agreement will result in its termination;
4. 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
5. is unable, as a result of a Force Majeure Event or for any other reason, to comply with a material portion of this Agreement for a continuous period of not less than sixty (60) days.

9.3. Effect of Termination

The following are effects of termination:

1. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
2. Upon termination of this Agreement, Customer shall, at Ada Support’s choice, return all Confidential Information of Ada Support and any copies thereof or destroy or permanently delete all such Confidential Information and provide written certification that it has done so.
3. Upon termination of this Agreement, at Customer’s request, Ada Support shall destroy or permanently delete all Personal Data of Customer .
4. Notwithstanding anything to the contrary herein, the obligation to return, destroy or permanently delete all copies of the Confidential Information of the other Party does not extend to automatically generated computer backups or archival copies on parties’ automatic backup systems, provided that such copies are held in accordance with the provisions of this Agreement for so long as they are retained.

Article 10: Warranties, Disclaimers, & Indemnification

10.1. Mutual Warranties

Each Party represents and warrants to the other Party that: (a) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under these Terms of Use; (c) the execution and delivery of these Terms of Use and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (d) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and businesslike manner, consistent with industry standards.

10.2. Disclaimer

Except as specifically set out herein, the Services are provided “as is” and “where-is”, without any representation, condition and/or warranty of any kind. Ada Support and its licensors and/or suppliers make no other representations and give no other warranties or conditions, express, implied, statutory, or otherwise regarding the Services or content made available through the Services provided under this Agreement and Ada Support specifically disclaims any and all statutory representations, warranties, and/or conditions against non-infringement and any and all implied representations, conditions and/or warranties of merchantability, merchantable quality, durability, title, and fitness for a particular purpose to the maximum extent permitted by applicable law.

Customer understands that it shall be responsible for its own design and use of the Services, including Customer’s question and answer flows within the Bot and any Customer Data that Customer may integrate into the Bot. Ada shall have no liability for Customer Data (including Personal Data) that Customer chooses to submit, integrate with, access, or otherwise process through the Bot.

10.3. Intellectual Property Indemnification

If liable, Ada Support shall defend Customer against third-party claims resulting from infringement by the Services of any patent or any copyright or misappropriation of any trade secret (“IP Claim”), and pay amounts finally awarded by a court or included in a settlement approved by Ada Support, provided (a) Ada Support is promptly notified of any and all threats, claims and proceedings related thereto; (b) Customer provides reasonable assistance requested by Ada Support; and (c) Customer gives Ada Support sole control over defense and settlement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Ada Support to be infringing, Ada Support may, at its option and expense (A) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (B) obtain for Customer a license to continue using the Services, or (C) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Services, calculated on a monthly prorated basis.

10.4. Mutual Indemnification

Each Party (the “Indemnifying Party”) agrees to defend the other Party and its Affiliates, officers, directors, employees and representatives (the “Indemnified Parties”) from and against any and all claims, complaints, demands, investigations, actions, suits and proceedings by any third party, for which the Indemnifying Party is liable for (each a “Third Party Claim/Proceeding”), and all resulting liabilities and obligations (including damages, administrative monetary penalties, financial sanctions, settlement payments, expenses and costs, including lawyer’s fees) awarded by a court or included in a final settlement arising from, connected with or relating to:

1. in the case of Customer as the Indemnifying Party, any breach of Sections 2.5, 5.4 or 5.5, any breach by Customer of applicable laws, or any third-party claim related to Customer Content, including if Customer Content infringes the rights, including Intellectual Property Rights or privacy rights, of any third party; or
2. in the case of Ada Support as the Indemnifying Party, the unauthorized disclosure by Ada Support of Personal Data, contrary to these Terms of Use, except arising from or otherwise attributable to any act or omission by the Customer.

10.5. Conditions

In consideration for the Indemnifying Party’s obligations under Section 10.4, the Indemnified Party shall: (a) promptly give the Indemnifying Party written notice of the Third Party Claim/Proceeding; (b) give the Indemnifying Party sole control of the defense and settlement of the Third Party Claim/Proceeding; and ( c) provide to the Indemnifying Party all reasonable assistance in defending and/or settling the Third Party Claim/Proceeding.

10.6. Exclusions

The foregoing obligations do not apply to any IP Claim with respect to portions or components of the Services (i) not supplied by Ada Support, (ii) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (iii) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (iv) where Customer’s use of the Services is not strictly in accordance with this Agreement, including the Acceptable Use Policy; or (v) Customer is not using the most recent version of the Platform Services.

Article 11: Limitation Of Liability

11.1. Limitation on Indirect Liability

Neither Party shall 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 either Party’s Affiliates, subsidiaries, agents or subcontractors. In no event shall either Party be liable for any consequential, incidental, punitive or special damages which either Party or End Users, Affiliates, parent companies, associates, agents, officers, directors or employees may incur or suffer in connection with this Agreement, including, resulting from either Party’s acts or omissions pursuant to this Agreement.

11.2. 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 Ada Support in the previous six (6) months preceding the claim.

11.3. Exceptions to Limitations

These limitations of liability do not apply to either Party’s indemnification obligations under Article 10. In respect of Ada Support’s indemnification obligations under Article 10, Ada Support’s aggregate liability for all claims shall not exceed the equivalent of the Fees paid by Customer to Ada Support in the previous twelve (12) months preceding the claim.

Article 12: Force Majeure

12.1. Circumstances

Neither Party will be liable for incomplete fulfillment or non-fulfillment of their obligations under these Terms of Use, excluding any payment obligations, or for losses incurred due to any circumstance that the parties could not reasonably foresee or are beyond the parties’ reasonable control and directly affect the activities contemplated by these Terms of Use, including but not limited to normative acts issued by the state and government institutions and binding for the parties, strikes, natural disasters, war or any kind of military operations, blockade, and epidemics (a “Force Majeure Event”).

12.2. Conditions

The Party that cannot fulfill its obligations as a result of a Force Majeure Event shall immediately inform the other Party and confirm such notice in writing not later than seven (7) calendar days from the date of occurrence of such Force Majeure Event. Such notice must contain the obligations that are unable to be fulfilled and provide an expected timeline of when such obligations will be able to be provided. If a Party fails to provide such notice in accordance with this Section 12.2, such Party is prohibited from relying on such Force Majeure Event as grounds for release from liability for incomplete fulfillment or non-fulfillment of its obligations.

12.3. Termination

Where a Force Majeure Event affects a Party’s ability to fulfill their obligations under this Agreement, such fulfillment of the affected parties’ obligations is suspended until the end of such Force Majeure Event, except that if the Force Majeure Event remains unresolved for sixty (60) days or more, either Party may elect to terminate this Agreement without liability to the other.

Article 13: Miscellaneous

13.1. Relationship of the Parties.

The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

13.2. Responsibility for End-User Support

Except as set out in a Transaction Document, Customer acknowledges and agrees that Ada Support has no obligation to provide support or technical assistance to the Authorized Customer Users or End Users of Services.

13.3. Interpretation

For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires, all references in this Agreement to designated “sections”, “paragraphs”, “articles” and other subdivisions are references to the designated sections, paragraphs, articles and other subdivisions of this Agreement

1. 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;
2. 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;
3. 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;
4. Unless otherwise stated in a Transaction Document, all references to currency shall mean Canadian currency;
5. 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;
6. Words importing gender include all genders, and words importing the singular include the plural, and vice versa.

13.4. Governing Law and Jurisdiction

This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the Province of Ontario without reference to its choice of law rules. Each of the parties hereby attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario located in Toronto, Ontario. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and Ontario’s International Sales Conventions Act, R.S.O. 1990, c. I. 10 do not apply to this Agreement.

13.5. 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, Ada Support may assign this Agreement in its entirety, without consent of the other Party, to an Affiliate, or 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 13.5 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.

13.6. Publicity

Ada Support may publicly identify the Customer as a customer of Ada Support, including using Customer’s name and logo in marketing materials, provided consent shall not be required for Ada to identify Customer during communications with Ada Support’s partners, customers, prospects, or investors, which for clarity may include investor and/or earnings calls.

13.7. Notices

All legal notices sent in connection with this Agreement shall be in writing and may be served personally or by prepaid registered or certified mail or by private mail service (for example, Federal Express or DHL), or by email with return receipt, to Ada Support’s address noted below and the Customer address listed on the Transaction Document.

If to Ada Support: Attention:
Legal Department
371 Front St W, Unit 314, Toronto, ON, M5V 3S8

Email: [email protected]

13.8. Binding Nature of Agreement

This Agreement shall ensure to the benefit of and shall be binding upon the Parties hereto together with their successors and permitted assigns.

13.9. Amendments, Waiver

Ada Support may amend these Terms of Use by providing notice to Customer, including by updating these Terms and Conditions on the Site. Any updates shall come into effect upon notice to Customer.

13.10. Further Assurances

The Parties covenant and agree to do such things and execute such further documents, agreements and assurances as may be necessary or advisable from time to time in order to carry out the terms and conditions of this Agreement in accordance with their true intent.

13.11. Provisions Severable

If any provision of this Agreement is held to be invalid, unenforceable or illegal, such provision shall be deemed to be independent and severable from the remaining provisions of this Agreement, and the remaining provisions of this Agreement shall not be affected and shall be valid and enforceable to the full extent permitted by law.

13.12. Rights and Remedies Cumulative

Except as provided in this Agreement, the rights, powers, remedies and privileges provided in this Agreement are cumulative and not exclusive of any rights, powers, remedies and privileges provided by law.

13.13. Survival

The obligations and rights of the parties that may have arisen or accrued under the Agreement will survive the termination or expiration of the Agreement without prejudice. All provisions of these Terms of Use which by their nature should survive in order to give effect to these Terms of Use, shall survive termination or expiration.

13.14. Entire Agreement

These Terms of Use and the Transaction Document, as well as any addenda, exhibits and attachments thereto, constitute the entire agreement between Customer and Ada Support pertaining to the subject matter of these Terms of Use and supersedes all prior agreements and understandings between Customer and Ada Support, including but not limited to anything set out in a Customer purchase order or similar documentation. In the event of any conflict between the terms and provisions of these Terms of Use, the Transaction Document, and/or those of any exhibit, schedule, attachment, or appendix, the following order of precedence shall govern: (a) first, the Transaction Document (if there are more than one active than whichever is most recently signed followed be earlier Transaction Documents); (b) second, these Terms of Use, excluding its exhibits, schedules, attachments, and appendices; (c) third, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) fourth, any other documents incorporated herein by reference.

13.15. Language

The Parties have expressly requested and required that this Agreement and all related documents be written in the English language. Les parties conviennent et exigent expressément que ce Contrat et tous les documents qui s’y rapportent soient rédigés en Anglais.