Enterprise Terms

PLEASE READ THESE ENTERPRISE TERMS (“TERMS”) CAREFULLY BEFORE USING THE LICENSED PRODUCTS OFFERED BY OPERANT AI, INC. (“OPERANT”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH OPERANT 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 OPERANT’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY OPERANT 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 Licensed Products. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. 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), Operant grants Customer a limited, personal,non-sublicenseable, non-transferable, nonexclusive license to: (i) in the caseof Operant’s software-as-a-service product(s) accessible to the Customerthrough the internet (in the form provided by Operant to Customer, the “SaaSOffering”), access and use such product(s) specified in each Order Form; and(ii) in the case of Operant’s downloadable software product(s) for use in avirtual private cloud environment (in the form provided by Operant to Customer,the “VPC Offering”), use internally such product(s) specified in each OrderForm ((i) and (ii), collectively, the “Licensed Products”), in each case duringthe applicable Order Form Term (as defined below) for the internal business purposesof Customer, only as provided herein and only in accordance with Operant’sapplicable official user documentation (the “Documentation”).
  2. Pilot Term. Operant may, subject to a mutually-agreedOrder Form, make the Licensed Products available to Customer on an evaluationbasis free of charge, which will commence upon the Effective Date of such OrderForm (unless otherwise specified in such Order Form), and shall continue forthe pilot period specified on such Order Form (“Pilot Term”). Notwithstandinganything to the contrary in this Agreement, (i) the Licensed Products providedduring the Pilot Term are provided “AS-IS,” without warranty of any kind,express or implied, (ii) unless otherwise specified in an Order Form, Operantshall not have any obligation to provide any support for the Licensed Productsduring the Pilot Term, (iii) Operant shall have no obligations under Section 9(Indemnification) with respect to the Pilot Term, (iv) to the extent permittedby applicable law, Operant shall have no liability of any kind with respect tothe Licensed Products provided during the Pilot Term in excess of $1000.00, and(v) the Pilot Term shall not renew (unless otherwise specified in an OrderForm).  Either party may terminate theapplicable Order Form and/or the Agreement during the Pilot Term upon writtennotice to the other party. In the event of a conflict between this Section 2and any other provision of this Agreement, this Section 2 shall control withrespect to the Pilot Term, but except as set forth in this Section 2, all otherterms and conditions of this Agreement apply with respect to the Pilot Term.
  3. Support;Updates. Operantwill use commercially reasonable efforts to provide basic support to Customer.From time to time, Operant may provide upgrades, patches, enhancements, orfixes for the Licensed Products to its customers generally without additionalcharge (“Updates”), and such Updates will become part of the Licensed Productsand subject to this Agreement; provided that Operant shall have no obligationunder this Agreement or otherwise to provide any such Updates. Customerunderstands that Operant may make improvements and modifications to the LicensedProducts at any time in its sole discretion; provided that Operant shall usecommercially reasonable efforts to give Customer reasonable prior notice of anymajor changes.
  4. Ownership; Feedback. As between the parties, Operant retains all right, title, and interestin and to the Licensed Products, and all software, products, works, and otherintellectual property and moral rights related thereto or created, used, orprovided by Operant for the purposes of this Agreement, including any copiesand derivative works of the foregoing. Any software which is distributed or otherwise provided to Customerhereunder (including without limitation any software identified on an OrderForm) shall be deemed a part of the “Licensed Products” and subject to all ofthe terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguouslyset forth in this Agreement.  Customermay (but is not obligated to) provide suggestions, comments or other feedbackto Operant with respect to the Licensed Products (“Feedback”). Operantacknowledges and agrees that all Feedback is provided “AS IS” and withoutwarranty of any kind.  Notwithstandinganything else, Customer shall, and hereby does, grant to Operant anonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable,royalty-free, fully paid up license to use and exploit the Feedback for anypurpose.  Nothing in this Agreement willimpair Operant’s right to develop, acquire, license, market, promote ordistribute products, software or technologies that perform the same or similarfunctions as, or otherwise compete with any products, software or technologiesthat Customer may develop, produce, market, or distribute.
  5. Fees; Payment.Customer shall pay Operant fees as set forth in each Order Form (“Fees”).  Unless otherwise specified in an Order Form,all Fees shall be invoiced annually in advance and all invoices issued underthis Agreement are payable in U.S. dollars within thirty (30) days from date ofinvoice. Past due invoices are subject to interest on any outstanding balanceof the lesser of 1.5% per month or the maximum amount permitted by law.  Customer shall be responsible for all taxes associated with Licensed Products (excluding taxes based on Operant’s netincome).  All Fees paid arenon-refundable and are not subject to set-off. Operant reserves the right toincrease the Fees for any Order Form Renewal Term (defined below) upon at leastsixty (60) days’ written notice to Customer prior to such Order Form RenewalTerm (email being sufficient); if Customer does not agree with the new Fees forsuch Order Form Renewal Term, it may give Operant notice of non-renewal as setforth in Section 11. If Customer exceeds any user or usage limitations setforth on an Order Form, then (i) Operant shall invoice Customer for suchadditional users or usage at the overage rates set forth on the Order Form (orif no overage rates are set forth on the Order Form, at Operant’s then-currentstandard overage rates for such usage), in each case on a pro-rata basis fromthe first date of such excess usage through the end of the Order Form InitialTerm or then-current Order Form Renewal Term (as applicable), and (ii) if suchOrder Form Term renews (in accordance with the section entitled “Term;Termination”, below, such renewal shall include the additional fees for suchexcess users and usage.
  6. Equipment. TheCustomer server(s) (and related or peripheral equipment and software) on whichthe VPC Offering is to be installed (the “Equipment”) will be dedicatedexclusively to the VPC Offering. Customer will not otherwise use or transferany such Equipment until the VPC Offering has been permanently removed.Customer will maintain the Equipment in good working order (including but notlimited to backup, recovery, and reboot services as necessary). Customer willhave full responsibility for security of all Equipment (physical, electronicand otherwise) such that no person or entity other than Customer will have anydirect or indirect access to any VPC Offering. Operant willhave no obligation to insure or be responsible for any loss or damage toproperty of any kind owned or leased by Customer or its employees, contractors,and agents.
  7. Restrictions.Except as expressly set forth in this Agreement, Customer shall not (and shallnot 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 Licensed Products(except to the extent applicable laws specifically prohibit such restriction);(ii) modify, translate, or create derivative works based on the LicensedProducts; (iii) copy, rent, lease, distribute, pledge, assign, or otherwisetransfer or encumber rights to the Licensed Products; (iv) use the LicensedProducts for the benefit of a third party; (v) remove or otherwise alter anyproprietary notices or labels from the Licensed Products or any portionthereof; (vi) use the Licensed Products to build an application or product thatis competitive with any Operant product or service; (vii) interfere or attemptto interfere with the proper working of the Licensed Products or any activitiesconducted on the Licensed Products; or (viii) bypass any measures Operant mayuse to prevent or restrict access to the Licensed Products (or other accounts,computer systems or networks connected to the Licensed Products). Customer isresponsible for all of Customer’s activity in connection with the LicensedProducts, including but not limited to uploading Customer Data (as definedbelow) onto the Licensed Products (or,in the case of the VPC Offering, storing data on the Licensed Products). Customer (a) shall use the Licensed Products in compliance with allapplicable local, state, national and foreign laws, treaties and regulations inconnection with Customer’s use of the Licensed Products (including thoserelated to data privacy, international communications, export laws and thetransmission of technical or personal data laws), and (b) shall not use the LicensedProducts in a manner that violates any third party intellectual property,contractual or other proprietary rights.
  8. Confidentiality. From time to time during the term of thisAgreement, either party (“Disclosing Party”) may disclose or make available tothe other party (“Receiving Party”) information about its business affairs,products (including, without limitation, the Licensed Products), confidentialintellectual property, trade secrets, and other sensitive or proprietaryinformation (collectively, “Confidential Information”). Receiving Party shall: (i) hold and maintain in strict confidence allConfidential Information; (ii) not use any Confidential Information except aspermitted by this Agreement; and (iii) not disclose any ConfidentialInformation except to the Receiving Party’s employees or consultants whohave a need to know the Confidential Information for the Receiving Party toexercise its rights or perform its obligations hereunder.  Receiving Party shall use atleast the same degree of care to protect the Confidential Information as usedto protect its own Confidential Information of like importance, and in no eventshall such degree of care be less than reasonable care.  The foregoing restrictions shall not applywith respect to any Confidential Information which: (a) is publicly availableor becomes publicly available through no act or omission of Receiving Party(including its employees or contractors); (b) was rightfully known to ReceivingParty without restriction before receipt from Disclosing, (c) is rightfullydisclosed to Receiving Party without restriction by a third party, (d) isindependently developed by Receiving Party without access to or reliance on theConfidential Information.  To the minimumextent possible, Receiving Party may use or disclose Confidential Informationas required by court order or as otherwise required by law, provided that itwill promptly notify Disclosing Party upon learning of any such legal requirement,and cooperate with Disclosing Party in the exercise of its right to protect theconfidentiality of the Confidential Information before any tribunal orgovernmental agency. Receiving Party agrees that the harm suffered byDisclosing Party would not be compensable by monetary damages alone and,accordingly, that Disclosing Party shall, in addition to other available legalor equitable remedies, be entitled to seek injunctive or other equitable reliefagainst such breach.
  9. CustomerData. For purposes of this Agreement, “CustomerData” shall mean any data, information or other material provided, uploaded, orsubmitted by Customer to Operant in the course of using the SaaS Offeringand/or otherwise in connection with this Agreement.  Customer shall retain all right, title andinterest in and to the Customer Data, including all intellectual property rightstherein.  Customer, not Operant, shallhave sole responsibility for the accuracy, quality, integrity, legality,reliability, appropriateness, and intellectual property ownership or right touse of all Customer Data.  Operant shalluse commercially reasonable efforts to maintain the security and integrity ofthe SaaS Offering and the Customer Data. Operant is not responsible to Customer for unauthorized access toCustomer Data or the unauthorized use of the Licensed Products unless suchaccess is due to Operant’s gross negligence or willful misconduct.  Customer is responsible for the use of theLicensed Products by any person to whom Customer has given access to theLicensed Products, even if Customer did not authorize such use.  Customer agrees and acknowledges thatCustomer Data stored in connection with the SaaS Offering may be irretrievablydeleted if Customer’s account is ninety (90) days or more delinquent.  Notwithstanding anything to the contrary,Customer acknowledges and agrees that Operant may (i) internally use and modify(but not disclose) Customer Data for the purposes of (A) providing the SaaSOffering to Customer and (B) generating Aggregated Anonymous Data (as definedbelow), and (ii) freely use and make available Aggregated Anonymous Data for Operant’sbusiness purposes (including without limitation, for purposes of improving,testing, operating, promoting and marketing Operant’s products and services).“Aggregated Anonymous Data” means data submitted to, collected by, or generatedby Operant in connection with Customer’s use of the SaaS Offering and/orotherwise in connection with this Agreement, but only in aggregate, anonymizedform which is not linked specifically to Customer.
  10. Third Party Integrations. Customer acknowledges and agrees that (i) the LicensedProducts may operate on, with or using application programming interfaces(APIs) and/or other services operated or provided by third parties (e.g., othervendors of Customer) (“Third Party Integrations”), (ii) the availability andoperation of the Licensed Products or certain portions thereof may be dependenton Operant’s ability to access such Third Party Integrations, and (iii)Customer’s failure to provide adequate access or any retraction of permissionsrelating to such Third Party Integrations may result in a suspension orinterruption of the Licensed Products. Customer hereby represents and warrantsthat it has all rights, licenses, permissions and consents necessary toconnect, use and access any Third Party Integrations that it integrates withthe Licensed Products, and Customer shall indemnify, defend and hold harmlessthe Operant for all claims, damages and liabilities arising out of Customer’suse of any Third Party Integrations in connection with or through the LicensedProducts. Operant cannot and does not guarantee that the Licensed Products shallincorporate (or continue to incorporate) any particular Third PartyIntegrations and does not make any representations or warranties with respectto Third Party Integrations. Customer is solely responsible for procuring anyand all rights necessary for it to access Third Party Integrations (includingany Customer Data or other information relating thereto) and for complying withany applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a thirdparty provider is solely between Customer and such third party provider and isgoverned by such third party’s terms and conditions.
  11. Term; Termination. This Agreement shall commence upon the date of the first Order Form,and, unless earlier terminated in accordance herewith, shall last until theexpiration of all Order Form Terms.  Foreach Order Form, unless otherwise specified therein, the “Order Form Term”shall begin as of the effective date set forth on such Order Form, and unlessearlier terminated as set forth herein, (x) shall continue for the initial termspecified on such Order Form (the “Order Form Initial Term”), and (y) followingthe Order Form Initial Term, shall automatically renew for additionalsuccessive periods of equal duration to the Order Form Initial Term (each, a“Order Form Renewal Term”) unless either party notifies the other party of suchparty’s intention not to renew no later than thirty (30) days prior to theexpiration of the Order Form Initial Term or then-current Order Form RenewalTerm, as applicable. In the event of a material breach of this Agreement byeither party, the non-breaching party may terminate this Agreement by providingwritten notice to the breaching party, provided that the breaching party doesnot materially cure such breach within thirty (30) days of receipt of suchnotice.  Without limiting the foregoing,Operant may suspend or limit Customer’s access to or use of the LicensedProducts if (i) Customer’s account is more than sixty (60) days past due, or(ii) Customer’s use of the Licensed Products results in (or is reasonablylikely to result in) damage to or material degradation of the Licensed Productswhich interferes with Operant’s ability to provide access to the LicensedProducts to other customers; provided that in the case of subsection (ii): (a)Operant shall use reasonable good faith efforts to work with Customer toresolve or mitigate the damage or degradation in order to resolve the issuewithout resorting to suspension or limitation; (b) prior to any such suspensionor limitation, Operant shall use commercially reasonable efforts to providenotice to Customer describing the nature of the damage or degradation; and (c)Operant shall reinstate Customer’s use of or access to the Licensed Products,as applicable, if Customer remediates the issue within thirty (30) days ofreceipt of such notice. Upon terminationor expiration of this Agreement or any Order Form Term, Customer shall promptlycease use of all applicable Licensed Products and shall delete all copiesthereof (and, upon request, shall certify such destruction in writing toOperant, and, in the case of the VPC Offering, permit Operant to access theEquipment to confirm removal of such VPC Offering). All provisions of this Agreementwhich by their nature should survive termination shall survive termination,including, without limitation, Section 2 (excluding any license to the LicensedProducts) and Sections 3-15 (inclusive).
  12. Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmlessthe 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 (including reasonableattorneys’ fees) paid or payable to an unaffiliated third party (“Losses”),that (i) arise from or relate to the Customer Data (in the case of Customer asIndemnitor), or (ii) arise from or relate to any claim by a third party thatthe Licensed Products (in the case of Operant as Indemnitor), infringe,violate, or misappropriate any such third party’s United States intellectualproperty right.  Each Indemnitor’sindemnification obligations hereunder shall be conditioned upon the Indemniteeproviding the Indemnitor with: (x) prompt written notice of any potentiallyindemnifiable claim (provided that a failure to provide such notice shall onlyrelieve the Indemnitor of its indemnity obligations if the Indemnitor ismaterially prejudiced by such failure); (y) the option to assume sole controlover the defense and settlement of any claim (provided that the Indemnitee mayparticipate in such defense and settlement at its own expense, subject toIndemnitor’s control right); and (z) reasonable information and assistance inconnection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of Operant do notapply with respect to the Licensed Products or any information, technology,materials or data (or any portions or components of the foregoing) to the extent(i) not created or provided by Operant (including without limitation anyCustomer Data), (ii) made in whole or in part in accordance to Customerspecifications, (iii) modified after delivery by Operant, (iv) combined withother products, processes or materials not provided by Operant (where thealleged Losses arise from or relate to such combination), (v) where Customercontinues allegedly infringing activity after being notified thereof or afterbeing informed of modifications that would have avoided the allegedinfringement, or (vi) Customer’s use of the Licensed Products is not strictlyin accordance herewith.
  13. Disclaimer.EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE LICENSED PRODUCTS ARE PROVIDED “ASIS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS ORIMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE,NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANYWARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OFDEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
  14. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, CUSTOMER’SBREACH OF SECTION 7, AND EITHER PARTY’S BREACH OF SECTION 8, IN NO EVENT SHALLEITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS ORCONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCEOR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OFTHIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OFSUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, ORCONSEQUENTIAL 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 INEXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO OPERANTHEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIMHEREUNDER.
  15. Miscellaneous.Customer grants Operant a limited, non-transferable (except to this extent thisAgreement is transferred in accordance with this Section 15), non-exclusivelicense to use and display in any media Customer’s name, logo, trademarks andtradenames in publicity releases, promotional material, customer lists,advertising, marketing and business generating efforts. This Agreement(including all Order Forms) represents the entire agreement between Customerand Operant with respect to the subject matter hereof, and supersedes all prioror contemporaneous communications and proposals (whether oral, written orelectronic) between Customer and Operant with respect thereto. In the event ofany 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 ofthe State of California, excluding its conflicts of law rules, and the partiesconsent to exclusive jurisdiction and venue in the state and federal courtslocated in San Francisco, California. All notices under this Agreement shall bein writing and shall be deemed to have been duly given when received, ifpersonally delivered or sent by certified or registered mail, return receiptrequested; when receipt is electronically confirmed, if transmitted byfacsimile or e-mail; or the day after it is sent, if sent for next day deliveryby recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on theOrder Form.  Either party may update itsaddress set forth above by giving notice in accordance with this section.Except as otherwise provided herein, any provision of this Agreement may beamended or waived only by a writing executed by both parties. Except forpayment obligations, neither party shall be liable for any failure to performits obligations hereunder where such failure results from any cause beyond suchparty’s reasonable control, including, without limitation, the elements; fire;flood; severe weather; earthquake; vandalism; accidents; sabotage; powerfailure; denial of service attacks or similar attacks; Internet failure; actsof God and the public enemy; acts of war; acts of terrorism; riots; civil orpublic disturbances; strikes lock-outs or labor disruptions; any laws, orders,rules, regulations, acts or restraints of any government or governmental bodyor authority, civil or military, including the orders and judgments of courts.Neither party may assign or delegate any of its rights or obligations hereunderwithout the other party’s consent; provided that (i) either party may assignall of its rights and obligations hereunder without such consent to asuccessor-in-interest in connection with a sale of substantially all of suchparty’s business relating to this Agreement, and (ii) Operant may utilizesubcontractors in the performance of its obligations hereunder.  No agency, partnership, joint venture, oremployment relationship is created as a result of this Agreement and neitherparty has any authority of any kind to bind the other in any respect. In anyaction or proceeding to enforce rights under this Agreement, the prevailingparty shall be entitled to recover costs and attorneys’ fees. If any provisionof this Agreement is held to be unenforceable for any reason, such provisionshall be reformed only to the extent necessary to make it enforceable.   The failure of either party to act withrespect to a breach of this Agreement by the other party shall not constitute awaiver and shall not limit such party’s rights with respect to such breach orany subsequent breaches.

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