CHOOCH LICENSE AGREEMENT
THE CHOOCH LICENSE AGREEMENT (COLLECTIVELY, THIS "AGREEMENT") GOVERNS YOUR ACCESS TO AND USE OF CHOOCH'S APPLICATION PROGRAMMING INTERFACE (THE "API") AND SOFTWARE AS A SERVICE PLATFORM (THE "PLATFORM" AND, COLLECTIVELY WITH THE API, THE "SOFTWARE") AND ANY USER DOCUMENTATION AND/OR VIDEOS RELATED TO THE SOFTWARE (THE "DOCUMENTATION").
BY ACCESSING THE SOFTWARE (THE DATE YOU FIRST ACCESS THE SOFTWARE, THE "EFFECTIVE DATE"): (I) YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND AGREE TO BE LEGALLY BOUND BY IT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT; AND (II) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND/OR TO ACT ON BEHALF OF AND BIND THE ENTITY YOU REPRESENT.
THOUGH YOUR ACCESS AND USE OF THE SOFTWARE IS GOVERNED BY THE AGREEMENT EFFECTIVE AT THE TIME, CHOOCH MAY REVISE AND UPDATE THIS AGREEMENT FROM TIME TO TIME IN ITS SOLE DISCRETION. IF CHOOCH MAKES MATERIAL CHANGES TO THIS AGREEMENT, IT WILL NOTIFY YOU BY EMAIL PRIOR TO THE EFFECTIVE DATE OF THE CHANGES, WHICH SUCH DATE WILL BE DEEMED THE EFFECTIVE DATE FOR PURPOSES OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE YOU’RE YOUR CONTINUED ACCESS OR USE OF THE SOFTWARE AFTER CHOOCH'S MATERIAL CHANGE TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF THE CHANGED TERMS.
As used in this Agreement, "Chooch" refers to Chooch Intelligence Technologies Co. dba Chooch AI, a Delaware corporation with offices at 2 Embarcadero Center, 8th Floor, San Francisco, CA 94111, a Delaware corporation located at and "you," "your," or "Licensee" refers to you as an individual or the entity on whose behalf you have entered into this Agreement
1. The Software.
(a) License Grant. Subject to Licensee's compliance with this Agreement, including Licensee's timely payment of all Fees (as such term is defined in Section 3), Chooch hereby grants to Licensee during the Term (as such term is defined in Section 8(a)) a non-exclusive, non-sublicensable, and non-transferable license to (i) access, use, and make calls to the API in connection with the web or other software services or applications developed by Licensee to interact with the API (the "Licensee Application") that will communicate and interoperate with the Platform, (ii) access and use the Platform in connection with communicating and interoperating with the API and (iii) use the Documentation, each of (i) through (iii) in connection with Licensee's internal business operations on its systems, networks and devices and in accordance with the limitations on Licensee's authorized employees or contractors for whom access to the Software and Documentation has been purchased by Licensee ("Authorized Users"). Chooch may modify the Software from time to time, so long as such modification(s) do not materially reduce the Software's performance or capabilities. Chooch will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee, any Authorized User, or any other third party may incur as a result of modifications to the Software in accordance with this Section 1(a).
(b) Restrictions. Licensee shall not, and shall not authorize any Authorized User or third party to, directly or indirectly: (i) copy, modify, or create derivative works of the Software or the Documentation, in whole or in part; (ii) rent, repackage, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or the Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code, object code, or underlying structure, ideas, or algorithms of the Software, in whole or in part; (iv) remove any proprietary notices from the Software or the Documentation; (v) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws, rules, or regulations (including, without limitation, applicable data privacy laws, regulations, and guidance) (collectively, "Applicable Law"); (vi) monitor the availability, performance, or functionality of the Software or for any similar benchmarking or competitive purposes; (vii) interfere with or disable any features, functionality, or security controls of the Software or otherwise circumvent any protection mechanisms for the Software; (viii) create any software or application that replicates or competes with the Software; (ix) combine or integrate the Software with any software, technology, services, or materials not authorized by Chooch; (x) design or permit any Licensee Application to disable, override, or otherwise interfere with any Chooch-implemented communications to end users; (xi) reveal Licensee's access key or other credentials to the Software ("Access Key") to any third party except when consented to in writing by Chooch; (xii) attempt to cloak or conceal Licensee's identity or the identity of any Licensee Application when calling the API; or (xiii) otherwise access or use the Software except as expressly authorized in this Agreement. Licensee is solely responsible for maintaining the confidentiality and security of its Access Key. Licensee shall immediately notify Chooch of any security breach of its Access Key and will be fully liable and indemnify Chooch for any unauthorized use of its Access Key.
(c) Reservation of Rights. Chooch reserves all rights not expressly granted to Licensee in this Agreement. Except for the rights and licenses expressly granted in this Agreement, nothing in this Agreement grants to Licensee or any third party, by implication, waiver, estoppel, or otherwise, any right, title, or interest in or to the Software or the Documentation. The Software and Documentation are licensed, not sold, to Licensee.
(d) Suspension of Access. Notwithstanding anything to the contrary in this Agreement, Chooch may temporarily suspend, or permanently revoke, Licensee's access to any portion or all of the Software if: (i) Chooch reasonably determines that there is a threat or attack on the Software; (ii) Licensee's use of the Software disrupts or poses a security risk to the Software or to any other customer or vendor of Chooch; (iii) Licensee is using the Software for fraudulent or illegal activities; or (iv) any vendor of Chooch has suspended or terminated Chooch's access to or use of any third-party services or products required to enable Licensee to access the Software (any such temporary suspension, a "Service Suspension" and any such revocation, a "Service Revocation"). Chooch shall use commercially reasonable efforts to provide written notice of any Service Suspension or Service Revocation to Licensee and, in cases of Service Suspensions, to provide updates regarding resumption of access to the Software following any Service Suspension. In cases of Service Suspensions, Chooch shall use commercially reasonable efforts to resume providing access to the Software as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Chooch will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any third party may incur as a result of a Service Suspension or Service Revocation, and Licensee shall not be entitled to any refunds of any Fees on account of any Service Suspension or Service Revocation.
(e) Open Source Software. At Chooch's sole discretion, certain Software may contain software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative (such Software, "Open Source Software"). Licensee acknowledges that specific terms required by the respective licensor of the Open Source Software may apply to the use of Open Source Software.
2. Responsibilities of the Parties.
(a) Chooch Responsibilities. Chooch will provide to Licensee the support and/or professional services for the Software as set forth on the "support" tab located on the Platform.
(b) Licensee Responsibilities.
(i) Software and Documentation; Training Data. Licensee is fully responsible and liable for all access and use of the Software and Documentation resulting from access provided by Chooch, whether such access or use is taken under Licensee's Access Key, and all conclusions, decisions, and actions based on such use. If requested by Chooch, Licensee shall submit to Chooch (whether via web portal, the Software, or otherwise) the requested data and/or other information as required for the performance and functionality of the Software (including, without limitation, to train the Software), in the form and format requested by Chooch (collectively, "Training Data").
(ii) Licensee Application. Licensee is fully responsible and liable for the Licensee Application. Licensee shall monitor the use of any Licensee Application for any activity that violates Applicable Law and/or any terms or conditions of this Agreement. Licensee will protect all end points in the Licensee Application using industry-standard security measures. Licensee is solely responsible for posting any privacy notices and obtaining any consents from end users required under Applicable Law for their use of any Licensee Application.
(iii) Authorized Users. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users in connection with their use of the Software and/or Licensee Application, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Licensee will be deemed a breach of this Agreement by Licensee.
3. Fees. In consideration of the grant in Section 1, Licensee will pay to Chooch the monthly fees billed by Chooch to Licensee (the "Fees") within thirty (30) days of the date of invoice. All Fees are non-refundable and non-cancelable. In addition to Chooch's suspension or revocation rights in Section 1(d), Chooch may suspend or revoke Licensee's access to the Software if Licensee is ten (10) or more business days past due on Fees.
(a) Confidential Information. "Confidential Information" means any information previously or hereafter disclosed by or on behalf of one party (the "Disclosing Party") to the other party (the "Receiving Party"), either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, business plans, customer data, customer lists, customer names, designs, documents, drawings, engineering information, financial analysis, hardware configuration information, the Disclosing Party's Intellectual Property, inventions, market information, marketing plans, processes, products, product plans, research, services, specifications, software, source code, trade secrets or any other information that the Disclosing Party identifies as "confidential," "proprietary" or some similar designation or that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself. Confidential Information also includes information disclosed to the Disclosing Party by third parties and all notes, reports, analyses, compilations, studies and other materials prepared by the Receiving Party or its representatives (in whatever form maintained, whether documentary, electronic or otherwise) containing, reflecting or based upon, in whole or in part, any such information or reflecting or based upon, in whole or in part, any such information or reflecting such party's review or view of the Disclosing Party or the Confidential Information. Without limiting the foregoing, the Software is Confidential Information of Chooch.
(b) Exclusions. Confidential Information shall not, however, include any information which (i) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known and made generally available in the public domain, (ii) or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, which source is not known by the Receiving Party after reasonable investigation to be subject to a contractual, legal or fiduciary obligation prohibiting such disclosure, in each case as evidenced by the written records of the Receiving Party, or (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party's possession.
(c) Restrictions. The Receiving Party agrees that it shall use the Disclosing Party's Confidential Information solely for the purpose of evaluating the Software and shall maintain the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care that it uses to protect its own Confidential Information, but in any event shall use at least commercially reasonable measures to protect the confidentiality of and avoid disclosure of the Disclosing Party's Confidential Information. The Receiving Party will keep the Disclosing Party's Confidential Information confidential and will not disclose any of the Disclosing Party's Confidential Information to employees or to third parties; provided, however, that the Receiving Party may disclose such Confidential Information to its directors, officers, or employees who need to know such Confidential Information for the purpose of evaluating the Software and have agreed to abide by or are otherwise subject to non-disclosure terms at least as protective of the Disclosing Party's Confidential Information as those set forth herein. The Receiving Party also agrees to only make such copies of Confidential Information as are necessary to evaluate the Software. The Receiving Party will reproduce the Disclosing Party’s proprietary rights and confidentiality notices on any such authorized copies in the same manner in which such notices were set forth in or on the original. The Receiving Party will promptly notify the Disclosing Party in the event of any unauthorized use or disclosure of the Disclosing Party's Confidential Information.
(d) Disclosures Required by Applicable Law or Court Order. In the event the Receiving Party is required by Applicable Law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of the Disclosing Party's Confidential Information, the Receiving Party will promptly notify the Disclosing Party in writing of the existence, terms, and circumstances surrounding such required disclosure so that the Disclosing Party may seek a protective order, or have the Receiving Party seek such protective order on its behalf, or other appropriate relief from the proper authority. The Receiving Party will cooperate with the Disclosing Party in seeking such order or other relief. If the Receiving Party is nonetheless required to disclose the Disclosing Party's Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that such Confidential Information will be treated confidentially to the extent possible.
(e) Return of Confidential Information. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by the Disclosing Party to the Receiving Party and all copies thereof shall be and remain the property of the Disclosing Party and shall be promptly returned to the Disclosing Party (or, in the cases of notes or abstracts, destroyed or permanently deleted) upon the earlier of (i) the Disclosing Party's written request and (ii) termination or expiration of this Agreement; provided, however, that nothing contained herein shall require the destruction, deletion or modification of any backup electronic media made pursuant to archival processes in the ordinary course of business; provided, further, that such backup tapes or other archived media shall only be accessible by information technology personnel and shall not be accessed or used for any purpose by either party other than as permitted hereunder.
5. Intellectual Property.
(a) Software. Licensee acknowledges that, as between Chooch and Licensee, Chooch (or its licensors, as applicable) owns all right, title and interest in and to the Software and Documentation, including all machine learning (including machine learning algorithms), predictive information and/or analytics, and all data and information generated by Licensee's evaluation, testing, and/or other use of the Software (including system performance data and data and/or information submitted to, collected by, or generated in connection with Licensee's use of the Software) and all Intellectual Property in the foregoing (collectively, the "Chooch IP"). For purposes of this Agreement, "Intellectual Property" means all worldwide rights in and to intellectual property, including, without limitation, rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including, without limitation, patent applications, patents, trade secret rights, copyrights, trademarks, and other exclusive or non-exclusive rights pertaining to intellectual property.
(b) Feedback. If Licensee or any of its Authorized Users submits, orally or in writing, suggestions or recommended changes to the Software or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Chooch is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Licensee hereby assigns to Chooch, on Licensee's behalf and on behalf of its Authorized Users and/or agents, all right, title, and interest in, and Chooch is free to use, without any attribution or compensation to any party, any Intellectual Property contained in the Feedback, for any purpose whatsoever, although Chooch is not required to use any Feedback.
(c) Training Data. Notwithstanding Section 5(a), Chooch acknowledges that, as between Chooch and Licensee, Licensee owns all right, title and interest in and to the Training Data and all Intellectual Property therein. Licensee hereby grants to Chooch during the Evaluation Period a non-exclusive, fully paid up, royalty-free, worldwide right and license to access, use, modify, distribute, reproduce, create derivative works of, and/or otherwise exploit such Training Data in connection with training the Software (including, without limitation, to generate machine learning (including machine learning algorithms) and other predictive information and/or analytics based on such Training Data). Licensee represents and warrants that all Training Data has been collected in compliance with all Applicable Law and that Licensee owns, or otherwise has the right to disclose to Chooch, all Training Data.
6. Representations and Warranties.
(a) Of Each Party. Each party hereby represents, warrants, and covenants to the other party that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; and (ii) the execution of this Agreement and the performance by such party of its obligations and duties hereunder, do not and shall not violate any agreement to which such party is otherwise bound.
(b) Of Chooch. Chooch warrants that for a period of thirty (30) days from the delivery of the Software, the Software shall substantially perform the material functions described in the Documentation, when used in accordance with such Documentation. The sole liability of Chooch (and its suppliers/licensors), and Licensee's sole remedy, for any failure of the Software to conform to the foregoing warranty, is for Chooch to do one of the following (at Chooch's sole discretion): (i) modify, or upgrade, the Software so that it conforms to the foregoing warranty; (ii) replace Licensee's copy of the Software with a copy that conforms to the foregoing warranty; or (iii) terminate the license with respect to the non-conforming Software and refund any Fees paid by Licensee for such non-conforming Software. All warranty claims must be made by written notice to Chooch on or before the expiration of the warranty period.
7. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6 ABOVE, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS” AND CHOOCH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CHOOCH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CHOOCH MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Term and Termination.
(a) Term. This Agreement will begin on the Effective Date and continue until the one-year anniversary of the Effective Date (the "Initial Term") and will automatically renew for consecutive one-year terms (each, a "Renewal Term" and together with the Initial Term, the "Term"), unless either party notifies the other party in writing at least thirty (30) days before expiration of the Initial Term or the then-effective Renewal Term of its intention to terminate this Agreement.
(b) Termination. Either party may terminate this Agreement on the other's material breach, if such material breach remains uncured for thirty (30) days after the breaching party's receipt of notification thereof from the non-breaching party.
(c) Effects of Termination. Upon expiration or earlier termination of this Agreement, the license granted under Section 1 will also terminate and Licensee will cease using and delete, destroy, or return all copies of the Software and Documentation and certify in writing to Chooch that the Software and Documentation has been deleted or destroyed. This Section 8(c) and Sections 2(b), 3, 4, 5, 7, 9, 10, and 11 will survive any termination or expiration of this Agreement. No other provisions of this Agreement will survive the termination or expiration of this Agreement.
9. Indemnification. Licensee will indemnify, defend, and hold harmless Chooch and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding in connection with (a) Licensee's or Licensee's Authorized Users' use or misuse of the Software, (b) Licensee's or Licensee's Authorized Users' breach of this Agreement, and/or (c) any Licensee Application, including any end user's use thereof. In the event Chooch seeks indemnification or defense from Licensee under this provision, Chooch shall promptly notify Licensee in writing of the claim(s) brought against Chooch for which Chooch seeks indemnification or defense; provided, that failure to promptly notify Licensee of such claim(s) will not reduce or relieve Licensee's indemnification obligations under this Section 9 except to the extent Licensee can demonstrate that such failure materially prejudiced the defense and/or settlement of such claim(s). Chooch reserves the right, at its option and in its sole discretion, to assume full control of the defense of any claim(s) with legal counsel of Chooch’s choice. Licensee may not, without Chooch's prior written consent, enter into any third-party agreement, which would, in any manner, affect Chooch’s rights, constitute an admission of fault by Chooch or bind Chooch in any manner.
10. Limitation of Liability. IN NO EVENT WILL CHOOCH BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CHOOCH WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL CHOOCH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE FEES.
(a) Entire Agreement. This Agreement constitutes the sole and entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, whether written or oral, with respect to the subject matter of this Agreement.
(b) Publicity. Neither party shall issue a press release or other public statement regarding the relationship of the parties or this Agreement without the prior written consent of the other party. Notwithstanding the forgoing, Licensee agrees that Chooch may (and Licensee hereby grants Chooch a non-exclusive license to) include Licensee’s name and logo on Chooch’s website and marketing materials.
(c) Notices. Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person or by courier, sent by electronic mail, facsimile, delivered by overnight delivery service, mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to the party's address as listed in this Agreement. If notice is given in person or by courier, it shall be effective upon receipt; if notice is given by confirmed email or facsimile during normal business hours of recipient, it shall be effective upon receipt (or the next business day if after normal business hours); if notice is given by overnight delivery service, it shall be effective two (2) business days after deposit with the delivery service; and if notice is given by mail, it shall be effective five (5) business days after deposit in the mail.
(d) Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the state of California, without regard to its choice or conflict of laws provisions.
(e) No Third-Party Beneficiaries. Nothing herein is intended or shall be construed to confer upon any person or entity other than the parties and their successors or assigns, any rights or remedies under or by reason of this Agreement.
(f) No Assignment. Neither this Agreement, nor any rights or obligations hereunder may be assigned, delegated or conveyed by either party without the prior written consent of the other party.
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