Enterprise Terms

PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY PROMPTPATH.  (“PROMPTPATH”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH PROMPTPATH WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS.  IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PROMPTPATH’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PROMPTPATH  SHALL BE DEEMED TO BE MUTUALLY EXECUTED.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Order Forms; Access to the Services.  Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement.  For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) PromptPath grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the PromptPath product(s) and/or service(s) specified in such Order Form (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with PromptPath’s applicable official user documentation for such Services (the “Documentation”).

2. Implementation.  Upon payment of any applicable fees set forth in each Order Form, PromptPath agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”).  If PromptPath provides Implementation Assistance in excess of any agreed-upon hours estimate, or if PromptPath otherwise provides additional services beyond those agreed in an Order Form (e.g., training or consulting), Customer will pay PromptPath at its then-current hourly rates for consultation.

3. Support; Service Levels.  Subject to Customer’s payment of all applicable fees, PromptPath will use commercially reasonable efforts to provide the Services in accordance with PromptPath’s availability commitments set forth in Exhibit A.

4. Updates.  From time to time, PromptPath may, but is not obligated to, provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that PromptPath shall have no obligation under this Agreement or otherwise to provide any such Updates.  Customer understands that PromptPath may make improvements and modifications to the Services at any time in its sole discretion; provided that PromptPath shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes, which may impact customer’s service.

5. Ownership; Feedback.  As between the parties, PromptPath retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by PromptPath for the purposes of this Agreement, including any copies and derivative works of the foregoing.  Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all the terms and conditions of this Agreement.  No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.  Customer may (but, unless otherwise agreed by the parties, is not obligated to) provide suggestions, comments, or other feedback to PromptPath with respect to the Services (“Feedback”).  PromptPath acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind.  Notwithstanding anything else, Customer shall, and hereby does, grant to PromptPath a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.  Nothing in this Agreement will impair PromptPath’s right to develop, acquire, license, market, promote, or distribute products, software, or technologies that perform the same or similar functions as, or otherwise compete with any products, software, or technologies that Customer may develop, produce, market, or distribute.

6. Fees; Payment.  Customer shall pay PromptPath fees as set forth in each Order Form (“Fees”).  Unless otherwise specified in an Order Form, all Fees shall be invoiced monthly in arrears and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice.  Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.  Customer shall be responsible for all taxes associated with Services (excluding taxes based on PromptPath’s net income).  All Fees paid are non-refundable and are not subject to set-off.  If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) PromptPath shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at PromptPath’s then-current rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination,” below, such renewal shall include the additional fees for such excess users and usage.

7. Restrictions.  Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (iv) except as set forth on an Order Form, use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any PromptPath product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures PromptPath may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services).  Customer is responsible for all of Customer’s activity in connection with the Services, including but not limited to uploading Customer Data (as defined below) onto the Services.  Customer (a) shall use the Services in compliance with all applicable local, state, national, and foreign laws, treaties, and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws, and the transmission of technical or personal data laws), and (b) shall not use the Services in a manner that violates any third party intellectual property, contractual, or other proprietary rights.

8. Confidential Information.  From time to time during the Term (as defined below), either party may disclose or make available to the other party nonpublic information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”).  For the avoidance of doubt, the Services constitute Confidential Information of PromptPath.  Confidential Information does not include information that, at the time of disclosure is: (a) generally available to the public; (b) known to the receiving party at the time of disclosure without restriction; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without access to or use of the Confidential Information.  As the receiving party, each party will (i) hold Confidential Information in confidence and not disclose it to any person or entity, except to the receiving party’s employees, consultants, agents, or representatives who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and (ii) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement.  Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (2) to establish a party’s rights under this Agreement, including to make required court filings.  On the expiration or termination of the Agreement, the receiving party will promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or, at the receiving party’s option, destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.

9. Personal Information. For the purposes of this Agreement, “Personal Information” shall mean, any information that alone or in combination identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household.

10. Roles of the Parties. The Parties acknowledge and agree that regarding the processing of Customer Data, which may include, Personal Information, (i) Customer is the Business or Controller of Customer Data, and (ii) PromptPath is the Service Provider or Processor of Customer Data. For clarity, the terms “Controller” and “Processor” below hereby signify Customer and PromptPath, respectively, for the purposes of this Agreement.

11. Customer Data.  For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services while using the Services (including, without limitation Customer’s data that resides in any databases of Customer and the conversations passed to PromptPath as part of the Services).  Customer Data will be logically segregated within the Services from the data of other PromptPath Customers, using an industry standard multi-tenant SaaS deployment model.  Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein.  Customer, not PromptPath, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data.  Customer represents and warrants that it has all rights necessary to provide the Customer Data to PromptPath as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights, rights of privacy, and consent from data subjects with respect to recording conversations and the use of such conversations as set forth in the Agreement). 

Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent.  Notwithstanding anything to the contrary, however, Customer acknowledges and agrees that PromptPath may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use, retain and make available Aggregated De-Identified Data for PromptPath’s business purposes (including without limitation, for purposes of improving, testing, operating, training, promoting, and marketing PromptPath’s products and services).  “Aggregated De-Identified Data” means data submitted to, collected by, or generated by PromptPath in connection with Customer’s use of the Services, including Customer Data, but to the extent that such data is Personally Identifiable information only in aggregate, de-identified form.

1. Data Security. PromptPath shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data.  PromptPath is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services.  Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. 

2. Data Incident Management and Notification. To the extent required under applicable Data Protection Laws, PromptPath shall notify Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data Processed by PromptPath on behalf of the Customer (a “Data Incident”).  PromptPath shall make reasonable efforts to identify and take those steps as PromptPath deems necessary and reasonable in order to remediate and/or mitigate the cause of such Data Incident to the extent the remediation and/or mitigation is within PromptPath’s reasonable control.  The obligations herein shall not apply to incidents that are caused by Customer or anyone who uses the Services on Customer’s behalf.  Customer will not make, disclose, release or publish any finding, admission of liability, communication, notice, press release or report concerning any Data Incident which directly or indirectly identifies PromptPath (including in any legal proceeding or in any notification to regulatory or supervisory authorities or affected individuals) without PromptPath’s prior written approval, unless, and solely to the extent that, Customer is compelled to do so pursuant to applicable Data Protection Laws.  In the latter case, unless prohibited by such laws, Customer shall provide PromptPath with reasonable prior written notice to provide PromptPath with the opportunity to object to such disclosure and in any case, Customer will limit the disclosure to the minimum scope required.

3. Data Subject Requests. PromptPath shall, to the extent reasonably possible, notify Customer or refer Data Subject to Customer, if PromptPath receives a Data Subject Request in relation to Personal Information.  Customer will be responsible for responding to and fulfilling any Data Subject Request.  Without limiting the foregoing, considering the nature of the Processing, PromptPath shall assist Customer, insofar as this is possible and reasonable, in the fulfilment of Customer’s obligation to respond to a Data Subject Request under the applicable Data Protection Laws as a Processor to respond to Data Subject Requests.  Except as otherwise provided herein or as set forth in the Agreement, PromptPath will promptly delete or, subject to PromptPath’s compliance with applicable Data Protection Laws, de-identify Personal Information upon Customer’s request in connection with an applicable Data Subject Request unless applicable law, including, without limitation, any applicable Laws or Data Protection Laws, requires PromptPath to retain such Personal Information.

4. Third Party Integrations.  Customer acknowledges and agrees that (i) the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (e.g., other vendors of Customer) (“Third Party Integrations”), (ii) the availability and operation of the Services or certain portions thereof may be dependent on PromptPath’s ability to access such Third Party Integrations, and (iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Services.  Customer hereby represents and warrants that it has all rights, licenses, permissions, and consents necessary to connect, use, and access any Third Party Integrations that it integrates with the Services, and Customer shall indemnify, defend, and hold harmless PromptPath for all claims, damages, and liabilities arising out of Customer’s use of any Third Party Integrations in connection with or through the Services.  PromptPath cannot and does not guarantee that the Services shall incorporate (or continue to incorporate) any particular Third Party Integrations and does not make any representations or warranties with respect to Third Party Integrations.  Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Integrations (including any Customer Data or other information relating thereto) and for complying with any applicable terms or conditions thereof.  Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

5. AI Features.  Customer acknowledges and agrees that (i) certain outputs of the Services may be generated through use of artificial intelligence, (ii) artificial intelligence, including machine learning, is a rapidly evolving technology, and given the probabilistic nature of machine learning, use of the Services may in some situations result in incorrect or inaccurate code or information, (iii) Customer must verify the accuracy and appropriateness of any outputs that are provided by the Services before relying on any such outputs, (iv) relying upon any outputs generated by the Services without first verifying the accuracy of such outputs with a qualified human could cause harm, including but not limited to legal, financial, and physical harm, and (v) Customer will not include any unnecessary or deceptive inputs in connection with its use of the Services (including in an attempt to steer the Services to generate inaccurate results).

6. Term; Termination.  This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms (collectively, the “Term”).  For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of one (1) year each (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than ninety (90) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable.  In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not cure such breach within thirty (30) days of receipt of such notice.  Without limiting the foregoing, PromptPath may suspend or limit Customer’s access to or use of the Services if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with PromptPath’s ability to provide access to the Services to other customers; provided that in the case of subsection (ii): (a) PromptPath shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, PromptPath shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (c) PromptPath shall reinstate Customer’s use of or access to the Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.  All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by PromptPath to Customer, including any assistance in exporting the Customer Data, shall be billable at PromptPath’s standard rates then in effect.

7. Indemnification.  Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers, and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any third party claim that (i) the Customer Data or Customer’s use of the Services (in the case of Customer as Indemnitor), or (ii) the Services (in the case of PromptPath as Indemnitor), infringes, violates, or misappropriates such third party’s intellectual property or proprietary right or violates applicable laws.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of PromptPath do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by PromptPath (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by PromptPath, (iv) combined with other products, processes or materials not provided by PromptPath (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Services is not strictly in accordance herewith.

8. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

9. Limitation of Liability.  EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND FOR CUSTOMER’S BREACH OF SECTION 7 (Restrictions), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS, OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO PROMPTPATH HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

Miscellaneous.  This Agreement (including all Order Forms) represents the entire agreement between Customer and PromptPath with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between Customer and PromptPath with respect thereto.  In the event of any conflict between these Terms and an Order Form, the Order Form shall control.  The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Wilmington, Delaware.  All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.  Notices must be sent to the contacts for each party set forth on the Order Form.  Either party may update its address set forth above by giving notice in accordance with this section.  Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties.  Customer agrees that, during the Term and for twelve (12) months thereafter, Customer will not, directly or indirectly, solicit any of PromptPath’s employees or consultants, or otherwise encourage any of them to direct less than all their efforts to PromptPath’s business.  Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; epidemics, pandemics, severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.  Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) PromptPath may utilize subcontractors in the performance of its obligations hereunder.  Customer agrees that PromptPath may use Customer’s name and logo to refer to Customer as a customer of PromptPath on its website and in marketing materials.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.  In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.  If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.  The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches