Terms & Conditions
THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE RETAIN.AI (“RETAIN.AI”) SOFTWARE.
BY USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND TO THESE TERMS THE COMPANY OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU ARE ENTERING INTO THIS AGREEMENT. THE WORD “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.
1.1. “Effective Date” means the earlier of the date Customer accepts the terms of this agreement or the date Customer first uses the Software.
1.2. “Fees” means the Fees indicated in an Order Form, including license fees and Service Fees.
1.3. “License Term” means a period of time that commences on the Effective Date and continues for the duration of the Term in the Order Form unless terminated herein.
1.4. “Order Form” means the documents for placing orders hereunder, including addenda thereto, that are entered into and validly executed between Customer and Retain.ai. Order Forms shall be deemed incorporated herein by reference.
1.5. “Service Fees” means the service fee(s) specified in an Order Form.
1.6. “Software” means the Retain.ai software described in an Order Form (together with the documentation provided therewith).
1.7. “Support and Maintenance Services” means the support and maintenance services (such as bug fixes, maintenance releases or error corrections) described in an Order Form, if any.
2. Paid License. If Customer orders Software pursuant to an Order Form, the following terms apply:
2.1. License. Subject to Customer’s timely payment of the Fees and the terms and conditions of this Agreement, Retain.ai grants Customer a limited, non-transferable, non-assignable, non-sublicensable, right to access and use the Software internally subject to any restrictions set out on the Order Form, during the License Term. For the avoidance of doubt, Customer may not grant access to or transfer the use of the Software to any third party, whether by itself or as integrated in or with another product.
2.2. Support Services. Retain.ai will make available to Customer the Support and Maintenance Services pursuant to this Agreement and the relevant Order Form in consideration for the timely payment of the services fee(s) specified therein.
2.3. Termination of License. Either party may terminate the license granted in Section 2.1 for convenience anytime within the first three (3) months to take effect at the exact end of month three (3).
2.4. Indemnification. Retain.ai shall defend at its own expense any legal action brought against Customer to the extent that it is based on a claim or allegation that the Software infringes a U.S. patent or copyright of a third party, and Retain.ai will pay any costs and damages finally awarded by a court of final appeal against Customer in any such action, or agreed to under a settlement signed by Retain.ai, that are attributable to any such claim but shall not be responsible for any compromise made or expense incurred without Retain.ai’s consent. Such defense and payments are subject to the condition that (a) Customer gives Retain.ai prompt written notice of such claim, (b) tenders to Retain.ai sole control of the defense and settlement of the claim, and (c) cooperates with Retain.ai as necessary for defense and settlement of the claim. Should any Software, or the operation thereof, become or in Retain.ai’s opinion be likely to become, the subject of such claim, Retain.ai may, at Retain.ai’s option and expense, procure for Customer the right to continue using the Software, replace or modify the Software so that they become non-infringing, or terminate the license granted hereunder for such Software and refund to Customer a portion of the Fees on a pro-rated basis corresponding proportionally to the period of lost use. Retain.ai will have no liability for any infringement claim to the extent it; (i) is based on modification of Software other than by Retain.ai, with or without authorization; (ii) results from failure of Customer to use an updated version of the Software; or (iii) is based on the combination or use of the Software with any other software, program or device not provided by Retain.ai if such infringement would not have arisen but for such use or combination; or (iv) results from use of the Software by Customer after the license was terminated as set forth in this Section. THE FOREGOING STATES RETAIN.AI’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
3. Other Restrictions. All licenses granted are subject to the conditions that Customer will not itself, or through any third party or agent: (a) modify, adapt, alter, translate, or create derivative works from the Software; (b) reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Software, in whole or in part, except to the extent that such activities are permitted under applicable law notwithstanding the foregoing restrictions; (c) distribute, license, sublicense, lease, rent, loan, or otherwise transfer the Software to any third party; (d) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Retain.ai or its suppliers contained on or within any copies of the Software; (e) merge or use the Software with any software or hardware for which they were not intended (as described in the documentation provided therewith); (f) use the Software in any time-sharing, outsourcing, service bureau, hosting, application service provider environments; or (g) use the Software other than as described in the documentation provided therewith, or for any unlawful purpose.
4. Term. Unless otherwise terminated in accordance with this section, this Agreement will be in effect until all licenses granted under this Agreement are expired or terminated. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within 10 days of receiving notice thereof. Unless otherwise agreed by the parties, upon the expiration or termination of this Agreement Customer will discontinue all use of the Software and will return to Retain.ai any materials provided by Retain.ai to Customer. Sections 2.3, 4, 5, 6 (for 3 years), 7, 8 and 9 will survive termination or expiration of this Agreement.
5. Software Ownership. Retain.ai or its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Software, including any improvements, modifications, and enhancements to them. Except for those rights expressly granted in this Agreement, no other rights are granted, whether express or implied.
6.1. “Confidential Information” means any information disclosed by a party (“Discloser”) to the other (“Recipient”), directly or indirectly, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Software” or some similar designation, or learned by Recipient under circumstances in which such information would reasonably be understood to be confidential. Confidential Information may include information disclosed in confidence to Discloser by third parties. As between the parties, the Software, and Support and Maintenance Services, the results of any performance, functional or other evaluation of the Software and any Feedback, are Confidential Information of Retain.ai.
6.2. Recipient agrees not to use Confidential Information or disclose, distribute or disseminate such Confidential Information except as allowed hereunder or as otherwise expressly agreed in writing by Discloser. Recipient agrees to restrict access to such Confidential Information to those employees or consultants of Recipient who need to know such information for performing as contemplated hereunder and have agreed to be bound by a confidentiality obligation not less protective than that contained in this Agreement. Recipient shall exercise the same degree of care to prevent unauthorized use or disclosure of the Confidential Information to others as it takes to preserve and safeguard its own confidential information of like importance, but in no event less than reasonable care.
6.3. The confidentiality obligations in this Section shall not apply with respect to Discloser information which Recipient can demonstrate that it: (a) was in the public domain at the time it was disclosed to Recipient or has become in the public domain through no act or omission of Recipient; (b) was known to Recipient, without restriction, at the time of disclosure as shown by the files of Recipient in existence at the time of disclosure; (c) is disclosed by Recipient with the prior written approval of Discloser; (d) was independently developed by Recipient without any use of the Confidential Information by employees or other agents of (or contractors hired by) Recipient who had no access to any Confidential Information; or (e) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not in violation of Discloser’s rights.
6.4. Recipient acknowledges that breach of the confidentiality obligations would cause irreparable harm to Discloser, the extent of which may be difficult to ascertain. Accordingly, Recipient agrees that Discloser is entitled to immediate injunctive relief in the event of breach of an obligation of confidentiality by Recipient, and that Discloser shall not be required to post a bond or show irreparable harm in order to obtain such injunctive relief.
7. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WITH RESPECT TO RETAIN.AI ITSELF AND ITS LICENSORS AND SUPPLIERS, THE WARRANTIES STATED IN THIS SECTION 7 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR SATISFACTORY QUALITY, WHICH RETAIN.AI SPECIFICALLY DISCLAIMS, FOR ITSELF AND ON BEHALF OF ITS LICENSORS AND SUPPLIERS, TOGETHER WITH ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE IN TRADE. RETAIN.AI AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE OPERATION, USE AND RESULTS OF THE SOFTWARE.
8. Limitation of Liability. THE TOTAL LIABILITY OF RETAIN.AI ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEE AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. IN NO EVENT WILL RETAIN.AI BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO (I) LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION, EVEN IF RETAIN.AI HAS BEEN ADVISED OF, KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR DESTRUCTIVE PROPERTIES OF THE SOFTWARE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. Miscellaneous. Customer agrees that Retain.ai or its licensors and suppliers may from time to time identify Customer as a customer in their Web site, sales and marketing materials and press releases. Customer grants Retain.ai and its licensors and suppliers a non-transferable, non-exclusive, royalty-free license to use Customer trademarks and logos (to be provided by Customer) on their Web site, press releases, advertisements and sales and marketing materials for the term of this Agreement for the limited purpose of indicating that Customer is a customer of Retain.ai and its licensors and suppliers. Any other use of such trademark or logo will require Customer’s prior written permission. This Agreement will be governed by the laws of the State of California without reference to conflict of law principles. All disputes arising out of or related to it, will be subject to the exclusive jurisdiction of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Customer may not assign this agreement, except to a successor of all or substantially all of its assets or stock (whether by sale, acquisition, merger, change of control, operation of law or otherwise), provided that such successor is not a competitor of Retain.ai. The application of the UN Convention of International Sale of Goods to this Agreement is disclaimed in its entirety. Together with any Order Forms, this is the entire agreement between the parties relating to the subject matter hereof. This Agreement (including applicable Order Forms) shall control over any additional or different terms of any correspondence, order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments of any provision of this Agreement shall be effective only if made by non-preprinted agreements indicating specifically what sections of this Agreement are affected, signed by both parties and clearly understood by both parties to be an amendment or waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect and the invalid or unenforceable provision shall be reformed to the extent necessary to make it valid and enforceable.