Current as of January 22, 2020
1.1. Terms defined in the Order Form shall have the same meaning in this Agreement unless the context indicates otherwise.
1.3 “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.
1.4. “Customer” means the customer indicated on the Order Form.
1.5 “Channel” means the communication or messaging channel(s) specified in the Order Form.
1.6 “Conversation” 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 Conversation .
1.7 “End User” means end users of Customer who access the Services through the Channel.
1.8 “End User Data” means any data relating to End Users which Customer receives, procures, gathers, stores, processes or has access to, which may include personal data.
1.9. “Initial Term” has the meaning given to it in Section 9.1.
1.10. “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.
1.12. “Pattern Data” means non-personally identifiable information, data and reports derived from or compiled through the Services, 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).
1.14. “Site” means www.ada.support and any sub-site of that site.
1.15. “Services” has the meaning given to it in Section 3.1.
1.16. ”Software Service API” means the API that enables the access to End User Data held by Services by the Services.
1.17. ”Support Services” means the support and services set out in the applicable Order Form (if any).
1.18. “Term” means the period of the Initial Term and any subsequent Renewal Term.
1.19. “You” means Customer or End User or any other user of the Site or Services.LICENSE
- 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 Services;
- remove any proprietary notices, labels, or marks from the Services or Ada Support technology;
- access the Services in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Services; or
- use the Services in a manner that:
(i). Infringes or violates the Intellectual Property Rights or any other rights of anyone else (including Ada Support);
(ii). Violates any law or regulation, including any applicable export control laws;
(iii). Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(iv). Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(v). Violates the security of any computer network, or cracks any passwords or security encryption codes; or
(vi). 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 Services; 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 Services; 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.
3.4. End User Data Terms. To the extent the Services collect, procure, gather, store, process or have access to any End User Data, Customer is solely responsible for obtaining the requisite permission from End Users for use of their End User Data in connection with the Services. Customer agrees that it will not request credit card or banking information from its End Users through the Services unless otherwise expressly permitted in an Order Form. Should an End User submit credit card or banking information to the Services, Ada Support shall use all reasonable measure to protect the security of such information in compliance with the Payment Card Industry (PCI) Data Security Standard.
3.5. Accuracy of End User Data. Ada Support does not represent, warrant or undertake that the End User Data available through the Services will at all times be accurate, error-free, up-to-date or complete.UPDATES
4.1. Services Updates. Ada Support will inform Customer of any planned material changes or upgrades to its Software Service API or Services by sending an email notification at least thirty (30) days prior to the changes coming into effect. In case of any emergency, unplanned modifications or updates, or a minor change to its Software Service API or 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 any service, any pre-paid software service fees in respect of such discontinued service will be refunded on a prorated basis.PROPRIETARY RIGHTS
5.2. Feedback. Ada Support may freely use any suggestions, feedback or ideas You may provide. By providing any feedback to Ada Support, You grants Ada Support a perpetual, worldwide, fully transferable, sublicensable, non-revocable, royalty free, license to use the feedback that You provides. Ada Support may put any provided feedback in various uses that may include but not limited to modifying and improving the Services, Ada Support’s other current and future services/products, services advertising or marketing materials without any payment or other further obligation to You.
5.4. Customer Data. As between Customer and Ada Support, Customer owns and retains ownership of Customer content that Customer provides, stores or processes through the Services including End User Data and any other personal data Customer provides about Customer’s End Users (“Customer Data”). You hereby grant Ada Support a worldwide, royalty-free, and non-exclusive license to access Customer Data in order to: (a) provide the Services; (b) create Pattern Data and Machine Learning; and (c) otherwise use anonymized Customer Data (including without limitation the content of End User interactions with Customer through Services) for the purpose of improving the Services. Together with Section 5.2, the licenses granted to Ada Support by You constitute the “Content License”).
5.6. Customer Data Export. Upon request by Customer during the Term or within 90 days of termination, Ada Support shall provide Customer with a copy of the Customer Data, including Bot questions and answers developed during the Term.
5.7 Publicity. During the Term, Ada Support may refer to Customer (including Customer’s logos) publicly as a customer of Ada Support, including on its website and in other marketing materials.PRICE & PAYMENT
6.1. Services Fees. The fees for Services, Support Services and any additional services ordered by Customer are those fees as described in the Order Form. Additional products and services, including premium features, which are not listed in the Order Form, may be subject to additional fees.
6.2. Invoices and payment. Invoices will be sent and payment will be due in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, invoice billing and payment shall be annual.
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 this Agreement, excluding taxes based on Ada Support’s net income or property. 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.
6.4 Suspension of Services. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Ada Support reserves the right to suspend the Services provided to Customer, without liability to Customer, until such amounts are paid in full.AVAILABILITY, SECURITY, AND STABILITY
7.1. Availability. Ada Support shall: (a) make commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data; and (b) use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which Ada Support shall , unless circumstances otherwise require, give at least eight (8) hours’ notice via the Services 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 (ii) 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 Ada Support 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.
7.3. Performance: The 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 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.
8.1. 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 terms and conditions of this Agreement, the Customer Data, 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.
8.2. 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 actual and prospective investors, advisors and partners.
8.3. 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).
8.4. 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.
8.5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of 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
9.5. Effect of Termination.
10.2. Conditions. 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.
11.2. Disclaimer. Except as specifically set out herein the Services are provided “As 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 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.
11.3. Mutual Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold the other party and its, officers, directors, employee and representatives (the “Indemnified Parties”) harmless from and against any and all claims, complaints, demands, investigations, actions, suits and proceedings by any third party (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) arising from, connected with or relating to (a) the Indemnifying Party’s 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; (b) the disclosure to or access by an unauthorized third party of personal data (a “Security Breach”) arising from any act or omission by the Indemnifying Party; or (c) any alleged or actual infringement upon a third-party’s Intellectual Property Rights resulting from Ada Support’s use of Customer Data (where Customer shall be the Indemnifying Party) or Customer’s use of the Services (where Ada Support shall be the Indemnifying Party).
11.4. Conditions. In consideration for the Indemnifying Party’s obligations under Section 11.3, the Indemnified Party(ies) shall: (a) promptly gives the Indemnifying Party written notice of the Third Party Claim/Proceeding; (b) gives 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.
11.5 Exclusions/Limitation. Section 11.3 does not apply to an Third Party Claim/Proceeding based on any actual or alleged infringement or misappropriation of Intellectual Property Right arising from, connected with, or relating to any of the following: (a) Customer’s use of the Services in combination with any services, technology, software, hardware, data or other materials not provided by Ada Support or expressly authorized by this Agreement; or (b) a breach of this Agreement by Customer or any wrongful act or omission by Customer or any person (including an authorized End User) for whom Customer is responsible under this Agreement or at law.LIMITATION OF LIABILITY
12.1. 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, resulting from either party's acts or omissions pursuant to this Agreement.
12.2. 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.
12.3. Exceptions to Limitations. These limitations of liability do not apply to breaches of confidentiality obligations set out in Section 8 (Confidentiality), violations of a Party’s Intellectual Property Rights by the other Party, or to the indemnification obligations set out in Section 11.3.MISCELLANEOUS
13.1. Support. Customer is solely responsible for providing all support and technical assistance to its End Users with respect to the Services. Customer acknowledges and agrees that Ada Support has no obligation to provide support or technical assistance directly to the End Users of 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 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 in an Order Form, 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.
13.4. 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, to an affiliate 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.
13.11. 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.